Madras High Court
Govindarajulu Naidu vs Arumuga Konar on 21 March, 2012
Author: T. Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 21.03.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.307 of 2006 Govindarajulu Naidu ... Appellant vs. 1. Arumuga Konar 2. Sivasakthi @ Ramu 3. Babu 4. Rajini ... Respondents Second Appeal filed under Section 100 CPC as against the judgment and decree, dated 27.09.2005, passed by the Principal Subordinate Court, Villupuram, in A.S. No.2 of 2002, reversing the judgment and decree, dated 03.05.2002, of the Principal District Munsif Court, Ulundurpet, in O.S. No.88 of 2001. For Appellant : Mr.D.Ravichander For Respondents : Mr.T.Gandhi O R D E R
The present Second Appeal has been filed by the appellant/plaintiff, questioning the correctness of the Judgment and decree, dated 27.09.2005, passed by the Principal Sub Court, Villupuram, in A.S. No.2 of 2002, whereby, the judgment and decree passed in favour of the plaintiff by the Principal District Munsif Court, Ulundurpet, in O.S. No.88 of 2001 on 03.05.2002, was reversed.
2. The plaintiff filed the suit in O.S. No.88 of 2001 on the file of the Principal District Munsif Court, Ulundurpet, seeking for a decree of declaration and permanent injunction in respect of the suit property and for costs on the basis that the suit property originally belonged to the plaintiff's father by name Venkatasamy, who constructed a thatched hut in the suit property and was also paying the house tax for the same. After constructing a house in a part of the land, the rest of the portion was left open as a garden. The property was enjoyed by the plaintiff's father for nearly 30 years and thereafter, he died leaving behind his wife Kamala Ammal and the only son - the plaintiff/Govindarajulu Naidu. The plaintiff, being the only legal heir of Venkatasamy Naidu, has become the absolute owner of the suit property. The first defendant is the father of defendant Nos.2 to 4. The defendants, whose property is on the southern side of the plaintiff's property and who purchased an extent of land measuring East West 40' and North South 30' from the father of the plaintiff on 28.11.1988 for a valid consideration of Rs.4,800/-, are trying to trespass into the suit pathway/lane measuring about 4' in breadth. The defendants have no right whatsoever on the suit lane which is being used by the plaintiff for ingress and egress of the plaintiff's family members.
Per contra, the defendants/respondents filed a written statement, stating that the suit was not maintainable for the reason that the UDR patta issued in favour of the plaintiff was not valid and true. It is further stated that, on the southern side of the plaintiff/appellant's property and in the land lying in S. No.192, the defendants had purchased an extent of land measuring East West 40' and North South 30' from the plaintiff's father on 28.11.1988. Only after the said purchase, the defendants had constructed a hut in the suit property in a portion of the same and the rest is being enjoyed as garden. On the northern side, there is a lane left out measuring 4' in breadth. This is being maintained by the defendants for the ingress and egress of men and cattle. Though the plaintiff was originally using the northern end of the property for drainage, after the dispute between the plaintiff and the defendants, now, the plaintiff/appellant is using the disputed 4' lane for drainage purpose. Thus, the suit laid out of enmity as against the defendants is liable to be dismissed.
3. On these facts in issue, the matter was taken up for trial. The plaintiff/appellant produced Exs.A1 to A14 and examined PWs-1 and 2. On the side of the defendants/respondents, DWs-1 and 2 were examined and Exs.B1 to B11 were marked. By framing an issue as to whether the plaintiff/appellant was entitled to have a decree for declaration and injunction and for costs, and after analysing the evidence adduced by both sides and taking judicial note of the admission made by the defendants, who would admit that the property of the plaintiff is lying on the northern side and he is enjoying the house property and the vacant site surrounding the same, and that in respect of the property lying in S. No.615/4, the defendants had no right or title, the trial court ultimately decreed the suit as prayed for by holding that, in the light of the clear admission of the defendants themselves, the plaintiff has to succeed. However, on appeal, the lower appellate court reversed the judgment of the trial court by observing that the dispute is only with regard to 4' lane lying between the property of the plaintiff and that of the defendants and that, in a case of this nature, an admission by a layman witness to the effect that he has no right or title in respect of the suit lane cannot be taken into consideration.
4. In my considered opinion, the lower appellate court has not approached the matter in issue in a proper perspective. It must be noted that the point for consideration before both the courts below was whether the 4' suit lane was properly described by definite metes and bounds in the plaint schedule. The conclusion of the lower appellate court that the plaintiff has not described the suit lane in the plaint schedule with relevant boundaries and resurvey number and that no document of title was produced in respect of the suit lane and that further, no advocate commissioner was appointed to locate and identify as to in whose possession and in whose part of the land the disputed lane lies, is absolutely baseless, for, it is trite law that an admission, being better piece of evidence, does not require any proof. The Apex Court, in Divisional Manager, United India Insurance Co. Ltd. and another v. Samir Chandra Chaudhary (2005-4 L.W. 498), while dealing with evidentiary value of an admission under Section 31 of the Indian Evidence Act, 1872, while holding that admission is the best piece of evidence against the person making such admission, observed thus:-
" ... it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but, they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. ... The effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. ..."
Further, the following observation of the Apex Court in Karam Kapahi v. Lal Chand Public Charitable Trust ((2010) 4 SCC 753), may also be useful to be quoted hereunder:-
" 38. In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:
"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."
39. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it `ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment."
5. On the present case being examined in the light of the principles laid down by the Apex Court governing the effect of admissions as adverted to above, it is seen that, admittedly, the plaintiff was originally owning the entire land in which the house of the plaintiff and that of the defendants situate. It is also an admitted fact that the defendants purchased an extent of land measuring East West 40' and North South 30' from the plaintiff's father on 28.11.1988 for a valid consideration of Rs.4,800/-. After the sale in their favour, the defendants constructed a hut in the suit property in a portion of the same and the rest is being enjoyed by them as garden. In respect of the disputed lane measuring about 4' in breadth lying on the northern side, based on their own sale deed dated 28.11.1988, the defendants could have satisfied the court by disproving the case of the plaintiff/appellant that the disputed 4' also was sold away by the plaintiff's father in favour of the defendants. When the plaintiff, who filed the suit for declaration and permanent injunction in respect of the suit property/lane, specifically made a claim that the suit lane with 4' breadth is being encroached upon by the defendants who have no title since the plaintiff's father did not sell the suit lane in favour of the defendants through the sale deed dated 28.11.1988, legally speaking, the plaintiff appellant has satisfactory discharged his onus and, as a result, the burden shifts on the defendants to disprove the case of the plaintiff. Apart from that, the defendant, in his own admission before the trial court, would admit that the plaintiff enjoys the house property and the vacant site surrounding the same. The second admission made by the defendant is further clear that in respect of the suit lane in S. No.615/4, the defendants had no right or title.
6. It is settled law that in a suit for title or permanent injunction, if the defendant comes to the witness box and admits the case of the plaintiff, the benefit of the said admission enures to the plaintiff. Section 33 of the Indian Evidence Act also states that evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states. Therefore, in this case, the admission made by the defendant is legally admissible against him.
7. In these circumstances, when the trial court, by taking note of the said specific admission by none else than the defendant himself, rightly decreed the suit, the first appellate court by absolutely drawing a wrong inference that too from the proved and admitted facts, erroneously disturbed the judgment of the trial court. Undoubtedly, the impugned judgment and decree of the first appellate court fall within the well recognized exceptions, calling for interference by this court, as outlined in Hero Vinoth (minor) v. Seshammal (AIR 2006 SC 2234), and accordingly, they are liable to be set aside. In this context, para-24(iii) of the said case law is relevant to be extracted below:
"(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
8. The second exception outlined by the Hon'ble Apex Court in the above referred case law makes it clear that the courts should not draw any wrong inference from the proved facts by applying the law erroneously. In the present case, the plaintiff/appellant approached the court for declaration and permanent injunction by producing relevant and acceptable evidence and he has sufficiently established the position that the defendants had no right or title in respect of the suit lane having 4' breadth running in between the property of the plaintiff and that of the defendants. When the clear admission of the defendant also proceeds in the same line, the learned first appellate court on the wrong premises that the plaintiff has not described the suit lane by definite metes and bounds under the plaint schedule and that no document of tile was produced in respect of the disputed lane and that, further, no advocate commissioner was appointed to locate and identify as to in whose possession or in whose part of the land the disputed lane lies, proceeded to disturb the well considered judgment of the trial court ignoring the vital fact that the trial court rightly concluded the issue in favour of the plaintiff based on the admission of the defendant supporting the case of the plaintiff. In view of the above reasons, by answering the question of law in favour of the appellant, the judgment and decree passed by the lower appellate court are reversed, restoring the verdict of the trial court.
9. In the result, the Second Appeal is allowed, however, there will be no order as to costs.
.03.2012.
Index : yes / no.
Internet : yes / no.
JI.
To
1. The Principal Sub Judge, Villupuram.
2. The Principal District Munsif, Ulundurpet.
T. RAJA, J.
Pre Delivery Order in S.A. No.307/06.
.03.2012.
Pre Delivery Judt. in S.A. No.307 of 2006.
To The Hon'ble Mr. Justice T.Raja Most respectfully submitted,