Madras High Court
N.R.Krishnamurthy Raja vs Guruva Raja on 18 July, 2018
Equivalent citations: AIRONLINE 2018 MAD 847
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 18.07.2018
Reserved on : 10.07.2018
Delivered on : 18.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A.No.1040 of 2004
and
C.M.P.No.7717 of 2004
1.N.R.Krishnamurthy Raja
2.N.A.Kannan Raja
3.Premalatha
4.M.P.Aswath
5.Jayashree
6.N.A.Patturaja .. Appellants
Vs.
1.Guruva Raja
2.S.K.Subramanian
3.Rama Raja
4.V.S.Ramasamy Raja
5.Sri Peddhavanallur Mayuranatha Swamy Koil,
Through Executive Officer,
Rajapalayam. .. Respondents
Second Appeal under Section 100 of CPC against the judgment and decree of the
Subordinate Judge, Srivilluputhur made in A.S.No.23 of 2000 dated 26.03.2003
confirming the judgment and decree of the Additional District Munsif Court,
Srivilliputhur made in O.S.No.329 of 1995 dated 16.6.2000.
!For Appellants : Mr.S.Natarajan
^For Respondents : Mr.Perumbulavil Radhakrishnan,
for Mr.P.Paul Selvam for R-4
Ms.Devi Saravana Priya
for Mr.P.T.S.Narendravasan for R-5
RR1 to 3 ? set ex parte
(vide memo No.4797 filed by appellants)
:JUDGMENT
15.196 cents of land comprised in old S.No.297/1 in Rajapalayam village in Virudhunagar District is the subject matter of the suit out of which the instant second appeal arises and this property shall hereinafter be referred to as 'suit property' for the sake of convenience and clarity. Description of the suit property as contained in the schedule to the plaint is as follows :
SCHEDULE OF PROPERTY 0.0615.0 Square Metres in T.S.No.24, Ward No.C, Block No.7, Patta No.606, Rajapalayam Village, Rajapalayam Taluk, Kamarajar District Old S.No.297/Ist Part.
Bounded On the South by : Dharmapuram East-West Street On the West by : Rajapalayam Palayapalayam Common Mahimai Fund Line Houses On the North by : Sunnambu Kalavasal Site And On the East by : Plot bearing No.25 belonging to Ravi Raja 2 Six individuals (plaintiffs) filed a suit being O.S.No.329 of 1995 on the file of 'Additional District Munsif Court, Srivilliputhur' (hereinafter referred to as 'trial court' for brevity) against four individuals (defendants 1 to 4) and Executive Officer of 'Sri Peddhavanallur Mayuranatha Swamy Koil, Rajapalayam' (hereinafter referred to as 'said temple' for the sake of brevity). This suit was filed in the trial court on 26.07.1995.
3 Prayer in the aforesaid suit in the trial court was for declaration of title and consequential permanent injunction qua possession of suit property.
4 According to plaint averments, suit property originally formed part of a larger extent of land and that larger extent of land was a Devadhayam Inam grant confirmed in title deed, i.e., T.D.No.581 in 40, Rajapalayam village. The inam grant was endowed with bothwarams for the support of said temple in Rajapalayam village. With the advent of 'The Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act 30 of 1963)', which shall hereinafter be referred to as 'Minor Inam Abolition Act' for brevity, the jurisdictional Settlement Tahsildar, i.e., Settlement Tahsildar-II, Kovilpatti initiated suo motu enquiry under Section 11 of Minor Inam Abolition Act and passed an order dated 23.03.1970 bearing reference SR.MI.4/SRI/70 (Ex.A.11). Vide aforesaid order of the jurisdictional Settlement Tahsildar under Minor Inam Abolition Act, seven individuals were granted ryotwarri pattas with regard to land comprised in entire old S.No.297/1 which admeasures 79 cents in all. Those seven individuals are as follows :
(i)Srirenga Raja, S/o.Tharma Raja
(ii)Rengasammal, W/o. Pal Raja
(iii)Sankara Raja, S/o.Alagar Raja
(iv)Alagiri Raja, S/o.N.A.P.Pappuraj
(v)Raja Ramalinga Raja, S/o.N.A.P.Pappuraj
(vi)A.K.D.Rengasami Raja, S/o.A.K.Tharma Raja
(vii)Poobathi Raja, S/o.Annama Raja 5 Out of the aforesaid seven persons, it is the case of plaintiffs that they claim suit property under two of them, i.e., Alagiri Raja and Raja Ramalinga Raja. First plaintiff is the son of Raja Ramalinga Raja. Plaintiffs 2 and 6 are sons of Alagiri Raja. Alagiri Raja had another son whose name is also Pappu Raja and therefore, he is referred to as 'Pappu Raja junior' for convenience. Wife, son and daughter of Pappu Raja junior are plaintiffs 3,4 and 5.
6 It is also the case of plaintiffs that aforesaid 79 cents of land comprised in S.No.297/1 was further sub divided and given new survey numbers. According to plaintiffs, the new survey number given to the suit property is T.S.No.24. Alleging that defendants are interfering with their peaceful possession and enjoyment of suit property, the aforesaid suit was laid in the trial court.
7 As mentioned supra, plaint was laid against four individuals (defendants 1 to 4) and Executive Officer of the said temple, who was arrayed as defendant No.5. Defendants entered appearance and contested the suit.
8 To be noted, defendant No.5, who is the Executive Officer of the said temple, is represented by a counsel before this Court, i.e., Ms.Devi Saravana Priya for Mr.P.T.S.Narendravasan, who submitted that defendant No.5 is only a formal party, defendants 1,2 and 3 in the trial court are claiming under the said temple and as they have now been set ex parte, the said temple has no real contest, is her say. This is recorded.
9 Therefore, we shall now look at the defence of defendants. 10 It is the case of defendants that 4th defendant owns 5 cents of land in aforesaid S.No.297/1. It is also the case of defendants that 4th defendant claims under his father Narayana Raja and his name has been wrongly shown as Sankara Raja in Ex.A.11.
11 Therefore, from the pleadings in trial court as well as submissions made before this Court, it is not in dispute that S.No.297/1 admeasures 79 cents in all and that ryotwari patta for the same was given to seven individuals. While plaintiffs' claim 15 cents of land (suit property) from and out of 79 cents in S.No.297/1, defendants claim 5 cents from and out of the same 79 cents in S.No.297/1. While plaintiffs' claim as descendants of two out of seven individuals in whose favour patta was granted vide Ex.A.11, 4th defendant claims as descendant of one out of seven individuals in whose favour ryotwari patta was granted vide Ex.A.11.
12 On the aforesaid rival pleadings, parties went to trial in trial court. In the trial court, three issues and one additional issue, i.e., four issues in all were framed and they are as follows :
?1)thjpfs; gpuhjpy; nfhhpa[s;s tpsk;g[ifa[k;. epue;ju epiya[Wj;Jf; fl;lis ghpfhuKk; fpilf;fj;jf;fjh>
2)gpuhJ jgrpy; brhj;J 4k; gpujpthjpf;F ghj;jpag;gl;L 1k; gpujpthjpapd; mDgtj;jpy; cs;sjh>
3)thjpfSf;F fpilf;f ntz;oa ,ju ghpfhuk; vd;d> TLjy; vGtpdh
1)gpuhJ jhth brhj;J 5tJ gpujpthjpf;F ghj;jpag;gl;ljpy;iyah> ?
13 In the trial court, on behalf of plaintiffs, first plaintiff Krishnamurthy examined himself as P.W.1 and one Mahalingam, who is a office staff in Rajapalayam Municipality, was examined as P.W.2. As many as 13 documents, i.e., Exs.A.1 to A.13 were marked on the side of plaintiffs. On the side of defendants, third defendant Ramaraja examined himself as D.W.1, 4th defendant Ramasamy Raja examined himself as D.W.2 and a Clerk of the said temple one Subbiah was examined as D.W.3. As many as 14 exhibits, i.e., Exs.B.1 to B.14 were marked on the side of defendants.
14 After full contest and trial in the aforesaid manner, trial court dismissed the suit vide judgment and decree dated 16.06.2000. To be noted, out of four issues in the trial court which have been extracted supra, with regard to issue No.2, trial court returned a finding that fourth defendant has not established that suit property is in possession of fourth defendant. To be noted, this is only a finding as defendants have not made any counter claim in the trial court.
15 A perusal of the judgment of trial court reveals that primary and pivotal ground on which trial court non suited plaintiffs is that plaintiffs have not established clinchingly and discharged their burden by showing with exactitude and specificity as to which 15 cents out of 79 cents in S.No.297/1 is the suit property. This is articulated in paragraph 18 of the judgment of trial court and this court deems it appropriate to extract the same, which reads as follows :
?18/////th/rh/M/3 18/6/94y; tH';fg;gl;ljhFk; vd;gJk; gpuhjpy; bkhj;jk; 79 brz;oy; ve;jg;gf;fk; jhth brhj;J cs;sJ vd;W Fwpg;gplg;gltpy;iy vd;gJk; th/rh/M/3y; cs;s kw;w egh;fis jh';fsJ brhj;jpypUe;J bgah; ePf;fk; bra;tjw;Fjhd; ve;j eltof;ifa[k; vLf;ftpy;iy vd;gJk; mjpy; lt[z; rh;nt vz; 24 kl;Lk; jhd; cs;sJ vd;W Fwpg;gplg;gl;Ls;sJ vd;gJk; th/rh/1 rhl;rpaj;jpy; xj;Jf; bfhs;sg;gLfpwJ/ ?
(underlining made by Court to supply emphasis and highlight)
16 Aggrieved plaintiffs carried the matter in appeal by way of regular first appeal under Section 96 of 'Code of Civil Procedure, 1908' (hereinafter referred to as 'CPC' for brevity). This regular first appeal under Section 96 CPC is A.S.No.23 of 2000 on the file of 'Subordinate Court, Srivilliputhur' (hereinafter referred to as 'first appellate court' for the sake of convenience and clarity).
17 To be noted, in the first appellate court, plaintiffs took out an application in I.A.No.38 of 2001 inter-alia under Order XLI Rule 27 CPC with a prayer for marking an additional document. The additional document sought to be marked is a copy of an order made by a Division Bench of this court being an order dated 12.7.2000 made in made in S.T.A.No.9 of 1987. The first appellate court allowed this interlocutory application after full contest and the aforesaid document being order of a Division Bench of this Court was marked as Ex.A.14, as Exs.A.1 to A.13 had already been marked in trial court.
18 In this context, it is necessary to set out that Ex.A.11 is the order of jurisdictional Settlement Tahsildar, who passed the order in suo motu enquiry under the Minor Inam Abolition Act, as mentioned supra. This order was carried in appeal by way of statutory appeal to the jurisdictional appellate court (by way of a statutory appeal under Minor Inam Abolition Act) and thereafter, carried by way of a further appeal to the High Court, i.e., S.T.A.No.9 of 1987 which also is a further statutory appeal under the Minor Inam Abolition Act. Suffice to say that vide Ex.A.14, the Division Bench of this Court dismissed the aforesaid S.T. A.No.9 of 1987 and confirmed the order of jurisdictional Settlement Tahsildar, i.e., Ex.A.11.
19 Reverting to the main regular first appeal in the first appellate court, i.e., A.S.No.23 of 2000, after full contest and hearing, the same was dismissed (confirming the judgment and decree of trial court dismissing the suit), vide judgment and decree dated 26.03.2003.
20 After suffering two concurrent judgments / decrees against them, plaintiffs preferred the instant second appeal in this Court. This second appeal was admitted by this court on 13.7.2004 on two substantial questions of law and they are as follows :
?(i)Whether in the light of Ex.A.11, the other order of the Settlement Tahsildar granting patta to the plaintiffs which was further confirmed by the Tribunal and the Special Appellate Tribunal, defendants could dispute the plaintiff claims in the suit?
(ii)Whether the lower appellate courts are right in disposing of the matter in a summary manner without raising the point for determination in the appeal??
21 Now, the instant second appeal is before this Court for final disposal. This Court heard Mr.S.Natarajan, learned counsel on behalf of six appellants, who are plaintiffs in trial court, Mr.Perumbulavil Radhakrishnan, learned counsel for Mr.P.Paul Selvam on behalf of respondent No.4 and Ms.Devi Saravana Priya, learned counsel for Mr.P.T.S.Narendravasan, on behalf of respondent No.5, i.e., Executive Officer of the said temple. As mentioned supra, respondents 1,2 and 3 remained ex parte. The submission on behalf of the Executive Officer of the said temple that they are only a formal party and that they have no contest in the matter has already been recorded supra. Therefore, the submissions made by learned counsel for appellants and respondent No.4 are examined.
22 Submissions made on behalf of appellants are as follows:
(a)Exs.A.1, A.3 and A.4, which are Town Survey Field Measurement, extract of Town Survey Registration register and patta in the name of Alagiri Raja and Raja Ramalinga Raja, plaintiffs' predecessors, clearly establish the case of plaintiffs and that the same have been overlooked by courts below;
(b)4th respondent / 4th defendant has not preferred any appeal against issue No.2 being answered against him in the trial court;
(c)Ex.A.11 being the order of jurisdictional Settlement Tahsildar under the Minor Inam Abolition Act has been confirmed by Division Bench of this court vide Ex.A.14 and therefore, 4th respondent / 4th defendant cannot dispute plaintiffs' claim;
(d)The first appellate court erred in disposing of the regular first appeal summarily without formulating points for determination.
23 To be noted, of the submissions made on behalf of appellants supra, submissions (c) and (d) are substantial questions of law 1 and 2 respectively on which the instant second appeal was admitted on 13.07.2004.
24 In response to the aforesaid submissions, learned counsel for fourth respondent / fourth defendant submitted as follows :
(a)Exs.A.1, A.3 and A.4 do not in any manner localise the suit property and show which part of 79 cents comprised in S.No.297/1 is the suit property.
In this regard, it was also pointed out that in Ex.A.1, the area has been left blank;
(b)It was submitted that there cannot be an appeal against a mere finding and therefore, the fourth respondent / fourth defendant cannot be found fault with for not assailing issue No.2 being answered against fourth defendant by the trial court. It was also submitted that plaintiffs have to discharge their burden of proof and succeed and they cannot succeed by picking holes in the defence of defendants;
(c)With regard to Ex.A.11 and the same being confirmed vide Ex.A.14, while not disputing the same, it was submitted on behalf of respondent No.4/ defendant No.4 that the same does not help plaintiffs / appellants in any manner as it also does not help localise the suit property. In this regard, exercising his rights under sub-section 5 of Section 100 CPC, it was urged on behalf of respondent No.4 that substantial question of law No.1 does not arise in the instant case;
(d)The first appellate court has not summarily dismissed the regular first appeal, there is detailed discussion about all aspects of the matter including independent evaluation and analysis of evidence. As continuation of such submission, it was urged by respondent No.4 / defendant No.4 that substantial question of law No.2 deserves to be answered against appellants.
(e)In addition to the above, it was emphatically and vehemently urged on behalf of respondent No.4/ defendant No.4 that appellants /plaintiffs could have taken out application for appointment of Advocate Commissioner for local inspection and got the suit property localised. Appellants / Plaintiffs not having done so, cannot now be heard to contend that courts below have erred.
25 This Court now proceeds to examine aforesaid submissions in greater detail. With regard to Exs.A.1, A.3 and A.4, the same have certainly been dealt with by courts below, particularly the first appellate court. This is articulated in paragraph 25 of the judgment of the first appellate court and this Court deems it appropriate to extract the same, which reads as follows :
?25/thjpfs; jug;gpy; ,uh$ghisak; efh;g[w epythp mYtyh; thjpfSf;F bfhLj;j cj;jput[ efy; th/rh/M/2 Mf rhd;whf;fg;gl;Ls;sJ/ mjd; mog;gilapy; o/v!;/24-2y; 4867 rJu mo thjpfs; tifawh bgahpy; epythp tpjpf;fg;gl;Ls;sJ/ th/rh/M/3y; efh; gjpntL efypy; lt[z; rh;nt vz; 24y; rh;nt ek;gh; 297-1d; gFjp vd;Wk;. lt[z; rh;nt ek;gh; 60 rh;nt ek;gh; 297-1d; gFjp vd;Wk;. mJ ,dhk; g[Q;irahf tifg;gLj;jg;gl;Ls;sJ vd;Wk; bjhpa tUfpwJ/ o/v!;/ ek;gh; 24. 57. 58 Mfpatw;Wf;F tH';fg;gl;l gl;lh ek;gh; 606 th/rh/M/4Mf rhd;whf;fg;gl;s;sJ/ th/rh/M/3?ypUe;J lt[z; rh;nt ek;gh; 24. 60 Mfpait rh;nt ek;gh; 297-1 rk;ge;jg;gl;lJ vd;Wk; bjhpa tUfpwJ/ th/rh/M/2. th/rh/M/?4ypUe;J o/v!;/ ek;gh; 24 jtpu thjpfSf;F o/v!;/ ek;gh; 24-2 o/v!;/ ek;gh; 57. 58. 60 MfpaitfSf;F thjpfs; bgahpy; thp tpjpg;g[fs; cs;sjhf bjhpa tUfpwJ/ jhth brhj;jhf o/v!;/ ek;gh; 24 kl;Lnk fhz;gpf;fg;gl;Ls;sJ/ thjpfs; jug;gpy; rh;nt ek;gh; 297-1y; bkhj;j tp!;jPuzk; vt;tst[ vd;gjw;Fk;. mJ vj;jid lt[z; rh;nt ek;gh;fshf cl;gphpt[fs; bra;ag;gl;lJ vd;gjw;Fk; Mtz';fnsh rhl;rpa';fnsh ,y;iy/ nkYk; o/v!;/ ek;gh; 24-2 ve;j rh;nt ek;gUf;F cl;gl;lJ vd;gjw;Fk;. o/v!;/ ek;gh; 57. 58 Mfpaitfs; ve;j rh;nt ek;gUf;F cl;gl;lit vd;gjw;Fk; thjpfs; jug;gpy; rhl;rpfs; ahUk; tprhhpf;fg;gltpy;iy/ rhd;whtz';fs; vJt[k; Fwpaplg;gltpy;iy/ th/rh/M/2 o/v!;/ ek;gh; 24-2 rk;ge;jg;gl;lJ vd;gjhYk;. th/rh/M/8 o/v!;/ ek;gh; 60 tH';fg;gl;l jPh;it urPJ vd;gjhYk;. th/rh/M/1 tiuglj;jpd; mog;gilapYk; kw;Wk; th/rh/M/2. th/rh/M/8 mog;gilapYk; jhth brhj;J chpik Fwpj;J eph;zak; bra;a KoahJ/?
26 A perusal of the above would show that Exs.A.1, A.3 and A.4 have certainly been looked into by courts below and this Court is unable to accept the submission that courts below have non suited the plaintiffs by ignoring Exs.A.1, A.3 and A.4. In the light of the fact that appellants / plaintiffs have not chosen to take out an application for appointment of Advocate Commissioner for local inspection, this Court is unable to accept the submission that courts below erred in non suiting the plaintiffs on the ground that plaintiffs have not discharged the burden cast on them (as they have not chosen to get the suit property localised by taking out an application for appointment of Advocate Commissioner).
27 To be noted, even in the hearing before this Court now, there is no explanation much less convincing explanation as to why plaintiffs have not taken recourse to appointment of Advocate Commissioner for local inspection by invoking Order XXVI Rule 19 CPC. As rightly pointed out by learned counsel for respondent No.4/ defendant No.4, even in Ex.A.1, area has been left blank.
28 On the side of the appellants, Karuppan Vs. Sivanandham Ambalam reported in 82 L.W. 70 [S.A.No.1259 of 1965, dated 27.08.1969] and Sowrimuthu Udayar Vs. S.P.Palaniappa Ambalam and others reported in 1981 T.L.N.J. 115 were pressed into service to say that patta issued under Inam Abolition Act stands on different footing qua regular patta issued by the revenue authorities as these pattas are issued after due enquiry. There is no quarrel over this proposition, but the issue in the instant case is that the suit property has not been localised and plaintiffs have not discharged their burden by clinchingly establishing which 15.196 cents out of 79 cents in S.No.297/1 is the suit property.
29 K.M.M.Kadar Hussain Vs. O.M.R.Selvaraj and two others reported in 1997 (I) CTC 559 and H.Siddiqui (Dead) by LRs Vs. A.Ramalingam reported in 2011 (4) CTC 343 were pressed into service by appellants' counsel to say that the first appellate court had breached the mandate under Order XLI Rule 31 CPC. To be noted, this submission is to bolster and buttress substantial question of law No.2. With regard to H.Siddique case, specific attention of this court was drawn to paragraphs 17 and 18 of the said judgment, which read as follows :
"17.The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order 41, Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called C.P.C.) and once the issue of the alleged Power of Attorney was also raised as is evident from point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the Power of Attorney had been executed by the Respondent in favour of his brother enabling him to alienate his share in the property.
Order 41, Rule 31, C.P.C.:
18.The said provisions provide guidelines for the Appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the Appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the Appellate Court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the Appellate Court are well founded and quite convincing. It is mandatory for the Appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the First Appellate Court must not record mere general expression of concurrence with the Trial Court judgment rather it must give reasons for its decision on each point independently to that of the Trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., 2006 (3) SCC 224; Shiv Kumar Sharma v. Santosh Kumari, 2007 (5) CTC 453 (SC) : 2007 (8) SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)"
30 As already mentioned supra, first appellate court has examined the evidence and particularly, documentary evidence pertaining to Exs.A.1, A.3 and A.4 on which appellants pitched themselves very high and therefore, the first appellate court has certainly examined the evidence before it independently. Relevant paragraph has also been extracted supra. In this regard, with regard to H.Siddique case and particularly paragraph 18, a perusal of the same would show that Hon'ble Supreme Court has referred to G.Amalorpavam and others Vs R.C.Diocese of Madurai and others reported in (2006) 3 SCC 224 with approval. This has been articulated by Hon'ble Supreme Court in paragraph 18 of H.Siddique case.
31 As per G.Amalorpavam case, if the appellate court has dealt with and analysed the evidence independently and has considered the core aspect of the matter raised in the trial court, the same shall be construed as substantial compliance with Order XLI Rule 31 CPC and it cannot be held that there is breach or violation of Order XLI Rule 31 CPC. This principle is articulated in paragraph 9 of G.Amalorpavam case and the same reads as follows :
?9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC. ?
32 In the instant case, though the first appellate court has proceeded with the regular first appeal by addressing itself to the lone question ?,k;nky;KiwaPl;il mDkjpf;f nghjpa fhuzq;fs; cs;sjh? vd;gnjahFk;?, as it is evident that it has been independently analysed in the light of relevant paragraphs being extracted supra and as there is discussion about all core aspects of the matter, applying G.Amalorpavam principle, this court is unable to accept the contention on behalf of the appellants that judgment of first appellate court is vitiated owing to not formulating point for determination or in other words, owing to violation of mandate in Order XLI Rule 31 CPC.
33 On behalf of the appellants, Rajasthan State Road Transport Corporation and another Vs. Bajrang Lal reported in (2014) 4 SCC 693 was pressed into service to say that judgments and decrees of courts below are hit by perversity for non consideration of Exs.A.1, A.3 and A.4. This Court has already set out supra in this judgment that those exhibits have been considered by courts below and that particular paragraph in which all three exhibits have been discussed. Therefore, Bajrang Lal case on perversity does not help the appellants.
34 On the side of fourth respondent / fourth defendant, an unreported judgment made by a learned Single Judge of this court in S.A.No.466 of 2002 [Velammal and another Vs. Rajammal and another] (judgment dated 06.11.2008) was pressed into service for the principle that plaintiffs cannot succeed by picking holes on defendant's plea and that plaintiffs should succeed on their own merits. Paragraph 20 of the said judgment was highlighted and the same reads as follows :
?20.The insistence on the side of the plaintiffs that once the defendants have come forward with the specific case that they acquired right over the suit properties under Ex.A3, the burden of proof was on them to prove it and on their failure, the Court should decree the suit in favour of the plaintiffs is neither here nor there, such a plea of the plaintiffs cannot be countenanced. It is a trite proposition of law that the burden of proof is on the plaintiffs to prove their case and they cannot pick holes in the case of the defendants and try to achieve success in the litigative battle.?
35 Balwant Singh Vs. Daulat Singh reported in (1997) 7 SCC 137 and M.T.W.Tenzing Namgyal Vs. Motilal Lakhotia reported in (2003) 5 SCC 1 were pressed into service for the proposition that mutation by itself does not extinguish or create right and that the same can at best be for corroboration. In this regard, paragraph 27 of Balwant Singh case is relevant and the same reads as follows :
"27. In the circumstances, we are of the opinion that the trial court erred in assuming that by Mutation No. 1311, the widow divested herself of the title to the suit property by treating the mutation as gift and conveying title. Further it has not applied uniform test in appreciating the mutation entries. In one place, the trial court has accepted mutation entries in toto even for conveying title but in the other place, the trial court was not prepared to accept the mutation entries by expressing some doubt about it. It is to be stated that this Court in Gurbaksh Singh v. Nikka Singh[AIR 1963 SC 1917 : 1963 Supp (1) SCR 55] has held that entries in mutation must be taken as correct unless the contrary is established. Here the trial court has shifted the burden on the appellants to prove the entries as correct. The trial court has failed to apply the same yardstick that it had applied to Mutation No. 1311 to Mutation No. 1348. Assuming for the sake of argument, that Mutation No. 1348 was on the basis of misunderstanding of the judgments in the earlier proceedings, that having been allowed to remain unaltered without challenge, cannot be brushed aside as worth nothing. Anybody affected by such entries should have challenged the same as provided under the law. In the absence of that, the entries cannot be ignored. Be that as it may, we have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. That being the position, Mutation No. 1311 cannot be construed as conveying title in favour of Balwant Singh and Kartar Singh or extinguishing the title of Durga Devi in the suit property. Consequently, the title to the suit property always vested with the widow notwithstanding Mutation No. 1311. Viewed in this manner, the decision in the earlier proceedings namely, decree in Suit No. 194 of 1955 even assuming that it operates as res judicata, will not be of any avail to the contesting respondents (plaintiffs) in the present suit because the reliefs sought in the prior proceeding was for a simple declaration that the ?mutation gift? of 1954 would not affect the reversionary rights of the reversioners. As noticed already, mutation entries will not convey or extinguish title in the property. Therefore, under Mutation No. 1311 neither Balwant Singh and Kartar Singh acquired title nor Durga Devi's title in the property got extinguished. The earlier court proceedings did not and could not convey title in favour of the reversioners, as the relief sought was for a simple declaration as mentioned above. If no title as such was passed on under the alleged ?mutation gift?, the limited right of the widow in the property would get enlarged on the coming into force of the Hindu Succession Act, 1956. "
36 In the narrative supra, this court has already referred to two case laws to say that patta issued by the Settlement Tahsildar under the Inam Abolition Act stands on different footing. This Court has also held that there is no quarrel over this proposition, but as rightly pointed out by learned counsel for respondent No.4 / defendant No.4, the issue in the instant case is not with regard to relying on patta and / or patta becoming title, but the core issue in the instant case is whether plaintiffs discharged the burden of proof cast on them by localising the suit property precisely to show which 15.196 cents out of 79 cents in S.No.297/1 is the suit property. If plaintiffs have taken out application for appointment of Advocate Commissioner for local inspection with the help of jurisdictional Surveyor and if such localising of suit property had happened, then the corroboration of patta and revenue records would come into play and the pattas issued under the Minor Inam Abolition Act would have been treated differently. However, as plaintiffs have not done that and as pattas issued vide Ex.A.11 as confirmed by Ex.A.14 does not in any manner localise the suit property, it is of no avail for plaintiffs in the instant case. For the purpose of clarity, it needs to be made clear that merely because pattas issued under Minor Inam Abolition Act stand on a different footing, that by itself does not become title. This is evident from more than one case laws, wherein and whereby, it has been clearly held by the Supreme Court and by our High Court that even in cases where proceedings under Minor Inam Abolition Act (Act 30 of 1963) have concluded or underway, nothing prevents the parties from resorting to civil suit for declaration of title and that civil suit will not be barred from entertaining such title suits merely because pattas have been issued under Minor Inam Abolition Act.
37 In R. Manicka Naicker v. E. Elumalai Naicker reported in (1995) 4 SCC 156, Supreme Court held in paragraph 15 as follows:
?15.It is also not possible to accept the contention of the appellant that jurisdiction of the civil court to determine title to the said land has been ousted by the said Act. Section 43 provides that the decision of a Tribunal or the Special Appellate Tribunal in any proceeding under the said Act shall be binding on the parties insofar as such matter is in issue between the parties in a suit or proceeding. The decision of a Tribunal, or the Special Appellate Tribunal is in respect of the grant of ryotwari pattas. It is only in respect of matters which are covered by the said Act that the decision of the Tribunal or the Special Appellate Tribunal is binding on the parties. Obviously, matters which are not the subject-matter of decision before such a Tribunal, cannot be considered as final or binding between the parties. Sub- section (2) of Section 43 expressly provides that the decision of the civil court (not being the Court of a District Munsif or a Court of Small Causes) on any matter falling within its jurisdiction shall be binding on the parties thereto in any proceedings before a Tribunal under the said Act. Therefore, there is no question of ouster of the jurisdiction of the civil court in respect of matters falling within its jurisdiction and which are outside the purview of the said Act. Section 46 also provides for finality only in respect of decisions of the Tribunal in respect of matters which are required to be determined by it for the purposes of the said Act. The jurisdiction of the civil court, therefore, to determine title to the lands in question or to determine whether the lessor has a right to evict the lessee from the lands in question is not ousted in any manner by the said Act.?
38 A Full Bench of Madras High Court in Srinivasan and six others v.
Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District by its Executive Officer at pettavaithalai Devasthanam and five others reported in (1998) 1 CTC 630 held in paragraphs 14 and 18 as follows:
?14.We have carefully considered the submissions of learned counsel appearing on either side in the light of the catena of cases noticed supra by us and the principles laid down therein. A comparison of the provisions contained in the Abolition Act, the Inam Abolition Act as also the Minor Inams Act would go to show that the ultimate object of one or the other of these legislations is the introduction of ryotwari settlement in the areas covered and notified under the respective enactments, after abolishing existing land tenure and acquiring the rights of the landholders or inamdars concerned, who, under the system of land tenure which was in vogue in these areas, were considered to be intermediaries in between the actual tiller of the soil and the State ad that the other provisions pertaining to the constitution of authorities, their powers, jurisdiction and the finality given to the orders passed, or incorporation of a provision in the nature of res judicata providing for the binding nature of the orders on the parties to the same and persons claiming under them in any suit or proceeding in a civil Court insofar as such matters are in issue between the parties or persons in such suit or proceeding, are almost identical and similar, except certain differences which, in our view, may not be that much relevant for the issue before us. Even while dealing with this aspect of the matter, the Supreme Court in the decision reported in State of Tamil Nadu v. Ramalinga Swamigal Madam, AIR 1986 SC 794 observed that the powers of the statutory authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and they cannot be equated with the civil Courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the scheme underlying these Abolition laws would go to show that the vesting on abolition under everyone of these legislations are subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basis and fundamental rights which entitle a person to preferentially get patta under these legislations and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicata such rights and the consequences of such adjudication, disclose that they do not mean and even intended to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claim, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in State of Tamil Nadu v. Ramalinga Swamigal Madam, AIR 1986 SC 794, R. Manicka Naicker v. E. Elumalai Naicker, (1995) 4 SCC 156 and Sayyed Ali v. A.P. Wakf Board, Hyderabad, (1998) 2 SCC 642 and that of a Division Bench of this Court in Ramanujam Kavirayar, T.K. v. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther and another v. Avvammal and 2 others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has, as their objection and aim, to implement ryotwari settlement in the areas governed by them.
18.For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the Civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.?
39 A learned Single Judge of this Court in Ramalingam and 2 Others v. The Idol Of Sri Thayumanasamy at Sri Thayumanasamy Devasthanam, Arasaloor, Musiri Taluk - by its Executive Officer reported in 1998 (3) CTC 665 in paragraph 20 held as follows :
?20.Since my dictating the above the Full Bench constituted for the purpose of resolving the conflict rendered its judgment today (30.4.1998). I have had the benefit of going through the Full Bench decision. The Full Bench has referred to an unreported judgment of a three Judges Bench of the Supreme Court in civil appeal No. 5141 of 1993 Sri-la-Sri Sivaprakasa Pandara Sannadhi Avargal v. Smt.T. Parvathi & Ors. wherein the Supreme Court not only approved its earlier decision reported in R. Manicka Naicker v. E. Elumalai Naicker and others, AIR 1995 SC 1613: (1995) 4 SCC 156 and set the seal of approval to the principles laid down therein, but also categorically held in unmistakable terms that its decision in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu and others, 1991 Supp.(2) SCC 228 had no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. The Full Bench has held that the Civil Court's jurisdiction to adjudicate the title of the parties is not barred by virtue of the provisions of the said Act. I respectfully follow the Full Bench and I hold that the substantial question of law raised in the present second appeal will have to be answered in favour of the appellant and the nature of the dispute being one relating to adverse possession, the case has to be decided by the courts below.?
40 In the light of the narrative supra, this Court has no difficulty in holding that substantial question of law No.1 does not arise in the instant case as rightly contended by respondent No.4/ defendant No.4 as both parties claim under the same document and it is not about validity of document, but it is about localising the suit property.
41 With regard to substantial question of law No.2, it is to be noted that by applying G.Amalorpavam principle, it cannot be said that judgment of the first appellate court is vitiated for nor formulating points for determination or in other words for violation of Order XLI Rule 31 CPC.
Therefore, there is no difficulty in answering substantial question of law No.2 against appellants by holding that the judgment of the first appellate court is not vitiated for violation of Order XLI Rule 31 CPC as there is substantial compliance with the same owing to independent discussion and analysis of evidence before it.
42 Lastly, it is to be noted that the whole issue is plaintiffs claim 15.196 cents out of 79 cents in S.No.297/1 and defendant No.4 claims 5 cents from and out of the same 79 cents in the same S.No.297/1. The issue if at all is whether 5 cents which defendant No.4 claims lies within 15 cents which the plaintiffs claim. As it has not been established by plaintiffs in courts below that 5 cents claimed by defendants fall within 15 cents which they claim, plaintiffs were rightly non suited. More importantly, plaintiffs have not established which 15 cents out of 79 cents is the suit property. Therefore, further question of which 5 cents out of 15 cents the defendants claim does not arise. This Court has no difficulty in accepting the submission on behalf of respondent No.4/ defendant No.4 that plaintiffs have to succeed on their own merits and cannot succeed by picking holes in defendants' plea, if any. To be noted, this proposition was lucidly laid down by the Hon'ble Supreme Court in Union of India Vs. Vasavi Cooperative Housing Society Limited and others reported in (2014) 2 SCC 269 and the relevant paragraphs are paragraphs 15 and 19, which read as follows :
"15.It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited. "
43 There is no difficulty in accepting the plea of respondent No.4/ defendant No.4 that there can be no appeal against a mere finding.
44 Owing to all that have been set out supra and particularly owing to the questions of law being answered against appellants (one does not arise and the other answered against appellants), the second appeal fails and the same is dismissed, confirming the concurring judgments of courts below. Parties are left to bear their respective costs. Consequently connected miscellaneous petition is closed.
To
1.The Subordinate Judge, Srivilluputhur.
2.The Additional District Munsif Court, Srivilliputhur .