Madras High Court
Jayalakshmi vs Mohankumar on 14 November, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.11.2014
CORAM:
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
Second Appeal No.508 of 2005
1.Jayalakshmi
2.P.Rajkanna
3.Mekala .. Appellants
-Vs-
1.Mohankumar
2.Coimbatore Auto Industries Ltd.,
Rep. By its Managing Director,
Akilmedu Street,
Erode 638 001.
3.A.Gunasekaran
4.Rajendran
5.Mallika .. Respondents
Second appeal filed under Section 100 of the Code of Civil Procedure against the judgment and Decree dated 19.03.2004 passed in A.S.No.02 of 2002 on the file of the learned Principal Subordinate Judge, Erode confirming the judgment and Decree dated 24.12.1998 passed in O.S.No.523 of 1995 on the file of the learned Principal District Munsif, Erode.
For appellants : Mr.N.Manokaran
For 1st
respondent : Notice dispensed with
For respondents : Notice served
2 and 3 (No Appearance)
For respondents : Mr.V.S.Kesavan
4 and 5
JUDGMENT
This memorandum of second appeal has been directed against the judgment and decree dated 19.3.2014 and made in A.S.No.02 of 2002 on the file of the learned Principal Subordinate Judge, Erode confirming the judgment and decree dated 24.12.1998 and made in O.S.No.523 of 1995 on the file of the learned Principal District Munsif, Erode.
2.The appellants 1 to 3 herein are the legal representatives of the deceased plaintiff P.Rangaswamy whereas, the respondents herein are the defendants 1 to 5 in the suit in O.S.No.523 of 1995.
3.For easy reference and also for the sake of convenience, the appellants and the respondents may hereinafter be referred to as the plaintiff and the defendants wherever the context so requires.
4.The deceased plaintiff P.Rangasamy, had originally filed the above suit as against the defendants 1 to 5 seeking the following reliefs:
(a)declaration declaring that the suit property absolutely belongs to him;
(b)granting permanent injunction restraining the defendants and their men from entering into the suit property in interfering in any other manner with the plaintiff's exclusive user and enjoyment of the same;
(c)granting mandatory injunction directing the first defendant, defendants 4 and 5 to remove the constructions made in the suit property and restore the same to its original position within a time to be specified by the Court and in case of non-compliance directing the same to be done by an Officer of the Court at the costs of the defendants 1, 4 and 5 and also for costs.
5.This suit was in fact contested by the defendants 2, 4 and 5. The second defendant had individually contested the suit, while the fifth defendant had adopted the written statement filed by the fourth defendant.
6.It is manifested from the records that the third defendant remained ex-parte as he had not chosen to contest the suit. It is also significant to note here that despite the defendants 4 and 5 had contested the suit, they subsequently remained ex-parte and the first defendant also remained ex-parte. Therefore, this Court can say that the second defendant alone is the contesting defendant.
7.The suit was originally dismissed by the trial Court, which was confirmed by the first appellate Court in the appeal in A.S.No.2 of 2002. Needless to say that the legal representatives of the deceased plaintiff P.Rangasamy are the appellants herein.
8.When the second appeal came up for hearing, Mr.N.Manokaran, learned counsel appearing for the appellants was present. Mr.V.S.Kesavan, learned counsel appearing for the respondents 4 and 5 being the defendants 4 and 5 was also present. Insofar as the first respondent/first defendant is concerned notice was dispensed with, as he remained ex-parte before the lower Court. Despite service of notice on the respondents 2 and 3 (defendants 2 and 3) they have not chosen to appear before this Court either in person or through respective counsels. Therefore, they were called absent.
9.As aforestated, though the second defendant had contested the suit before the trial Court, he has not chosen to appear before this Court to contest the second appeal. Even though the defendants 4 and 5 have appeared through their counsel Mr.V.S.Kesavan, they did not contest the suit as they remained ex-parte during the course of trial. Under these circumstances, the Courts below have concurrently rejected the prayer of declaration, permanent injunction and mandatory injunction sought for by the plaintiff. The findings given by the Courts below have strenuously challenged by Mr.N.Manokaran, learned counsel appearing for the appellants, who has termed the findings of the Courts below as concurrent error instead of concurrent finding.
10.The entire case of the plaintiffs is revolving around the sale deed dated 21.9.1973 (Ex.A.2) under which, the deceased plaintiff Mr.P.Rangasamy claimed to have purchased a strip of land (suit property) measuring 12 feet in breadth towards East-West and 330 feet in length towards North-South comprised in old S.F.No.47 from one Sengoda Gounder in order to have access to his land comprised in old S.F.No.46 from East-West Erode-Perundurai Road. The property comprised in old S.F.No.46 measuring one acre was allotted to the plaintiff/P.Rangasamy (since deceased) under the registered partition deed dated 13.4.1944 (Ex.A.1) entered into between his father Periyasamy Gounder and his brother Shanmuga Goundar. This fact has not been disputed.
11.Generally, the second appeal must be heard only on the substantial question of law so formulated and the respondent has a right to argue that the case does not involve such question. However, the High Court may hear the appeal on any other substantial question of law, not so formulated, if it is satisfied that the case involves such question.
12.This Court being the second appellate Court is very conscious to understand the factum that the interference with a finding of the fact is not warranted if it involves a re-appreciation of the evidence and this Court is not expected to re-appreciate the evidence just to replace the findings of the lower Courts. This Court also knew its jurisdiction that in the second appeal it cannot reverse the concurrent findings of the lower Courts, under ordinary circumstances. However, in deciding a second appeal in the proper perspective , this Court being the second appellate Court may have to enter into a question of facts and if the Courts below have patently gone wrong in casting the burden of proof and have misread the evidence or have not considered the basic requirements to substantiate the case, it cannot be said that this Court is not competent to re-appreciate the evidence to correct the mistake committed by the lower appellate Court. This principle has been laid down in RAJEE V. BABU RAO (AIR 1996 MADRAS [262]) .
13.This appeal came to be admitted on the following single substantial question of law:
After having lost all the interest, right and title in the property forming the subject matter of the present suit by the original owner under Ex.A.2 dated 21.9.1973 in favour of the plaintiff's father, would the subsequent purchase of the very same property by the defendants from the very same owner, confer any legal title on the purchaser?
14.The above formulated substantial question of law though it is solitary in nature, does not appear to be of pure substantial question of law. But, it appears to be of mixed question of law and fact. It is observed by their Lordships of the Privy Council in NAFAR CHANDRA PAL VS. SHUKUR AND OTHERS (1919 ILR 46 P.C 189) = (1918 L.R. 45 I.A 183 (PC) = 1919 (9) LW 552, that the questions of law and on fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other, but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact.
15.The Hon'ble Apex Court while discussing the true scope of the observation made in NAFAR CHANDRA PAL VS. SHUKUR AND OTHERS (cited supra) has pointed out in SRI MEENAKSHI MILLS LTD., VS. COMMISSIONER OF INCOME TAX (AIR 1957 SC 49) = (1956 SCR 691) that there is a distinction between a pure question of fact and a mixed question of law and fact and the observation aforesaid had reference to the latter and not the former.
16.Apart from this, Court may interfere in second appeal (even on a question of fact) if the finding of the Courts below is perverse and unsupported by any evidence on record. In the light of the above fact, this Court is of firm view that the judgments and decrees of the Courts below are deserved to be interfered by this Court.
17.The facts materials are this:
Under the registered sale deed dated 21.9.1973 (Ex.A.2) the deceased plaintiff Rangasamy had purchased a strip of land admeasuring 12 feet in East-West and 330 feet in North-West in SF No.47 from one Sengoda Gounder on the Western side of S.F.No.47 for the purpose of having an access to his ancestral land comprised in S.F.No.46 for a consideration of Rs.1,000/-. The aforesaid strip of land has been marked as ABCD in the plaint plan. This strip of land hereinafter be referred to as suit property. In pursuant to his purchase under Ex.A.2, the deceased plaintiff Rangasamy had become the absolute owner of the suit property excepting him none other is having any semblance of right, title and possession.
18.As per the averments made in the plaint, subsequent to the purchase of the suit property, the defendants seemed to have purchased the properties on the Eastern side of the suit property. Insofar as the suit property is concerned, they are total strangers. In the first week of June 1995, the defendants 1, 4 and 5, without the knowledge and consent of the plaintiff had encroached into the suit property and subsequently, raised a wall to the height of 4 feet above the surface. The encroached portion is about 8 feet in East-West and 110 feet in North-South.
19.The plaintiff has also contended on 10.05.1995 that when he demanded the defendants 1, 4 and 5 to remove the unlawful constructions made in the suit property, the deceased plaintiff Rangasamy had therefore, filed the above suit seeking the reliefs as aforestated.
20.Though the plaintiff has stated in paragraph 8 of the plaint that no relief is sought for against the defendants 2 and 3 and that they have been added as formal parties in the suit, the second defendant has contested the suit by filing his written statement as under:
(i)The suit property is not belonged to the plaintiff and that the plaintiff's vendor Sengoda Gounder had got no title over the suit property. In fact, he has specifically contended that no such property is in existence in S.F.No.47 of Thindal Village. The description of the suit property specified in Ex.A.2, sale deed dated 21.9.1973 is misleading and false and that the plaintiff is not owning any land on the East of the channel and that there is no access as alleged by the plaintiff in S.F.No.47 at any point of time. The suit property lies immediately on the East of the North South channel and after conducting the resurvey, the said land has been assigned with the re-survey number as R.S.No.167/2C1 by the Survey Department.
(ii)The fourth defendant has also contested the suit by filing written statement and the same was adopted by the fifth defendant wherein, they have stated that the plaintiff's vendor viz., Sengoda Gounder had got no title over the suit property and as such he had no right to alienate the same in favour of the plaintiff, and in fact there is no such property in existence in the field as per the recitals of the plaint schedule.
(iii)They have further contended that they had purchased the properties under two sale deeds dated 19.10.1994 from one Arunachalam, S/o.Muthusamy Gounder. At the time of their purchase, they had measured the entire land with the help of Taluk Surveyor referring with the Village Field Map and therefore, they had no necessity to encroach the land belonged to the plaintiff.
21.Based upon the pleadings of the plaintiff as well as the defendants 2 and 4, the trial Court had framed as nearly as ten issues for the better adjudication of the suit.
22.The deceased plaintiff Rangasamy had examined himself as P.W.1 and one more witness was examined as P.W.2. During the course of their examination, Exs.A.1 to A.2 were marked on his side. The Sales Officer of the second defendant was examined as D.W.1 on behalf of the defendants. During the course of his examination Exs.B.1 to B.10 were marked. Apart from this, Commissioner's reports and plans dated 27.10.1997 and 12.2.1996 respectively were marked as Exs.C.1 to C.4. The Advocate Commissioner was also examined as C.W.1.
23.On appreciation of the evidences both oral and documentary, the learned trial Judge has proceeded to dismiss the suit on 24.12.1998 on the following six grounds:
(1)No recitals in Ex.A.2 to show that the property was intended to be used as an access to reach his land;
(2)The plaintiff has not produced any revenue records to prove his claim over the suit property.
(3)The plaintiff was unable to give re-survey number in his evidence.
(4)The plaintiff did not file any objection to the reports and plans filed by the Advocate Commissioner.
(5)The plaintiff is not the absolute owner of the suit property.
(6)The sale deeds in the name of the second defendant were not challenged by the plaintiff.
24.Impugning the judgment and decree of the trial Court dated 24.12.1988, the plaintiff has preferred an appeal in A.S.No.2 of 2002 on the file of the learned Principal Subordinate Judge, Erode. Along with the appeal, he has also filed an Interlocutory Application in I.A.No.233 of 2003 under Order 41 Rule 27 of the Code of Civil Procedure to receive the additional document namely, a compromise decree made in I.A.No.557 of 1977 in O.S.No.62 of 1975 between the first defendant and others. During the pendency of the first appeal, the plaintiff/first appellant died and his legal representatives were impleaded as appellants 2 to 4 in the appeal. After hearing both sides, the first appellate Court has also proceeded to dismiss the appeal on 19.3.2014 confirming the judgment and decree of the trial Court on the following three grounds:
(1)Canal in R.S.No.167/1 has been shown as the Western boundary in Ex.A.2 (21.09.1973) as well as in Exs.B.2 and B.3 (06.09.1984). Therefore, the defendants are the owners of the property situate on the Eastern side of the canal (2)Revenue records marked as Exs.B.4 to B.9 supported the case of the defendants. The plaintiff has not produced any RSR, Chitta Adangal, etc. Further, he has not challenged the mutation effected in the name of the defendants.
(3)Nowhere the recital in Ex.A.2 has indicated that the suit property in S.F.No.47 was purchased as an access to the plaintiff's ancestral property in S.F.No.46.
25.Heard Mr.N.Manokaran, learned counsel appearing for the appellants and Mr.V.S.Kesavan, learned counsel appearing for the respondents 4 and 5.
26.In the plan appended to the plaint, the exact portion of the suit property has been marked as ABCD. This strip of land admeasuring 12 ft. in East-West and 330 ft. in North-South, which is comprised in S.F.No.47, as per the deceased plaintiff, was purchased by him from one Sengoda Gounder to serve mainly an access to his ancestral land comprised in S.F.No.46. As it appear from the averments of plaint, despite no claim is made as against the second defendant, they have filed their written statement and contested the suit on the following two grounds:
(i)The plaintiff's vendor Sengoda Gounder had got no title to the suit property.
(ii)The suit property itself is a figment of imagination and in fact no such property is in existence in the field.
27.The plaintiff has claimed that the defendants 1, 4 and 5 had encroached into the above said suit property to an extent of 8 ft in East-West and 110 ft. in North-South. However, the fourth defendant in his written statement has completely denied the allegation of their encroachment. The learned Advocate Commissioner was examined as C.W.1 and his reports were marked as Exs.C.1 to C.4. Exs.C.1 and C.2 are the Commissioner's report and plan dated 27.10.1997 whereas Ex.C.3 and C.4 are also the Commissioner's report and plan dated 12.2.1996. In Ex.C.1, the learned Advocate Commissioner has identified that the suit property is comprised in Re-survey No.167 (old S.F.No.47) measuring East-West 12ft. and North-South 330 ft. He has also identified that the channel, which is running on the Western side of the suit property is said to have been comprised in Re-survey No.167/1. The learned Advocate Commissioner has also stated that the channel comprised in Resurvey No.167/1 is the Western boundary of the suit property, which is comprised in Re-survey No.167 (old S.F.No.47). He has also stated that there is an encroachment in the portion in Re-survey No.167/2A to an extent of 8 ft. in East-West and 110 ft. in North-South. Further, he has stated that it is shown in the plan that the defendants 4 and 5 have encroached the suit property to an extent of 3.6 metres in East-West and 28 metres in North-South and that they had constructed a wall in the encroached area. In the plan, the encroached portion has been separately shown as ABCD.
28.Exs.C.3 and C.4, another Commissioner's report and plan have shed more light on the encroached portions. In Ex.C.4, the encroached portion has been shown in green colour i.e in East-West 8 ft and in North-South 110 ft and the Advocate Commissioner has also stated that in the above said encroached area, she had found the newly constructed compound wall at an height of 8ft. in the portion of the first defendant. According to the plaintiff, the first defendant's portion has been in possession and enjoyment of the defendants 4 and 5. The learned Advocate Commissioner was examined as C.W.1. Her evidence in chief as well as her report and plan have not been shaken by the cross-examination done on behalf of the defendants.
29.Under Ex.A.2 dated 21.9.1973, the deceased plaintiff Rangasamy had purchased East-West 12 ft. and North-South 330 ft. a strip of land totally measuring to an extent of 3960 sq.ft (9 cent and 36 sq.ft) from one Sengoda Gounder, S/o.Kuppanna Gounder with specific boundaries. In this document, the Western boundary of this land has been shown as channel. The vendor of the plaintiff Sengoda Gounder has stated in the said document that he had got the suit property by way of Registered Partition dated 17.6.1970 and as such, he was the absolute owner of the suit property. From the document, Ex.A.2, it is revealed that the plaintiff's vendor Sengoda Gounder had got saleable title in respect of the suit property to alienate in favour of the deceased plaintiff. Though the second defendant as well as the fourth defendant have contended in their written statements that the plaintiff's vendor Sengoda Gounder had got no title over the suit property, they have miserably failed to substantiate their claim. On the other hand, the deceased plaintiff Rangasamy by marking this document under Ex.A.2 for supporting his title, has proved his case. But, unfortunately, this document has not been properly appreciated and considered by the Courts below.
30.Mr.N.Manokaran, learned counsel for the appellants has submitted that the plaintiff's sale deed dated 21.9.1973, (Ex.A.2) is anterior to the second defendant's sale deeds dated 6.9.1984 (Exs.B.2 and B.3). He has further submitted that as per Caveat emptor principle, the subsequent purchaser ought to have verified the encumbrance and in fact, in the evidence of D.W.1 he had admitted that encumbrance certificates were obtained and verified, but, they were not marked as exhibits. As per BLACK'S LAW DICTIONARY, sixth edition, at page 222, the caveat emptor has been defined as under:
Let the buyer beware. This maxim summarizes the rule that a purchaser must examine, judge and test for himself. This maxim is more applicable to judicial sales, auctions and the like, than to sales of consumer goods where strict liability, warranty and other consumer protection laws protect the consumer-buyer.
31.One Murugan, who is the attestor of Ex.A.2 dated 21.9.1973, was examined as P.W.2. But, the defendants have not examined any witness to prove the second defendant's documents, which were marked as Exs.B.2 and B.3 dated 6.9.1984.
32.As argued by Mr.N.Manokaran, learned counsel appearing for the appellants, Ex.A.2 is anterior to Exs.B.2 and B.3 dated 6.9.1984. Therefore, neither the second defendant nor the other defendants, much less the defendants 4 and 5 do not have any competency to challenge the plaintiff's document under Ex.A.2, which is admittedly anterior to Exs.B.2 and B.3.
33.Mr.N.Manokaran, has also adverted to that this strip of land comprised in S.F.No.47 was purchased by the deceased plaintiff Rangasamy under Ex.A.2 so as to have access to his land comprised in S.F.No.46, which is evident from the Commissioner's report and plan. As argued by the learned counsel for the appellants, Exs.B.5 and B.6 (Revenue Records) are subsequent to the suit and therefore, the finding of the Courts below that the revenue records under Exs.B.5 to B.10 are supporting the case of the defendants does not bear any force. It shows the improper appreciation of both oral and documentary evidence by the Courts below. The absence of recital in Ex.A.2 that the suit property comprised in S.F.No.47 was purchased to have access to the plaintiff's ancestral property comprised in S.F.No.46 would not be a valid ground for the rejection of the case of plaintiff. From Ex.C.2, as admitted by the learned Advocate Commissioner, it appears that the lay-out was drawn by the Surveyor, wherein, it is shown that the plan is relating to Survey No.167. As per the Advocate Commissioner's report, the old S.F.No. is 47 and the re-survey No. is 167, which is relating to the suit property.
34.The learned trial Judge has also found in his judgment that the plaintiff had not produced any revenue records to substantiate his claim over the suit property. It is absolutely wrong and appears to be perverse in nature because the documentary title alone will prevail over the other revenue records when the original sale deed is available to prove the claim of the plaintiff. All revenue records would be of no importance when the original registered sale deed is available and then the finding of the trial Court that the plaintiff was not able to give the re-survey number is immaterial, and this may not be a substantial ground to reject the case of the plaintiff. Further, the Commissioner's report and plan are in favour of the plaintiff's case and therefore, the plaintiff need not file any objection to the Commissioner's report and plan, which are found to be in his favour.
35.Mr.N.Manokaran, while advancing his arguments has maintained that the mutation of revenue records alone were not sufficient to substantiate the contention of the defendants. Exs.B.5 to B.9 came into existence pending the suit i.e. on 27.10.1995 and that the entries made by the revenue authorities pending suit could not be looked into to decide the rights of the parties. He has also pointed out that prior to effecting changes in the revenue records no notice was served on the plaintiff.
36.In support of his submission, he has placed reliance upon the following decisions of the Supreme Court.
(i)STATE OF ANDHRA PRADESH AND OTHERS VS. STAR BONE MILL AND FERTILISER COMPANY (2013 [9] SCC 319);
(ii)H.SIDDIQUI (DEAD BY LRS) VS. A. RAMALINGAM (2011 [4] SCC 240);
(iii)SURAJ BHAN AND OTHERS VS. FINANCIAL COMMISSIONER AND OTHERS (2007 [6] SCC 186);
(iv)RAJINDER SINGH VS. STATE OF JAMMU AND KASHMIR AND OTHERS (2008 [9] SCC 368); and
(v)VIDHYADHAR VS. MANIKRAO AND ANOTHER (1993 [3] SCC 573.
37.In the decision in SURAJ BHAN AND OTHERS VS. FINANCIAL COMMISSIONER AND OTHERS (2007 [6] SCC 186), it is observed as follows:
An entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only fiscal purpose i.e. payment of land revenue and no ownerhsip is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil Court. In all the above cited decisions, the same ratio has been laid down and therefore, they need not be reiterated herein.
38.Moreover, the learned counsel for the appellants has submitted that along with the appeal in A.S.No.2 of 2002, the plaintiff also filed an application in I.A.No.233 of 2003 wherein, an additional document was sought to be marked on his side. The additional document, which was sought to be marked was a compromise decree passed in I.A.No.557 of 1997 in O.S.No.62 of 1975 between the plaintiff, first defendant and other sharers and it would have lent support to the claim of the plaintiff. However, the judgment rendered in A.S.No.2 of 2002 does not have any reference to show about the filing of I.A.No.233 of 2003 for the reception of additional document, namely, the compromise decree.
39.Admittedly, D.W.1 is an employee of the second defendant. His evidence does not inspire any confidence and not support the case of the defendants. Therefore, his evidence deserves to be discarded. The defendants 1, 3 and 5 remained ex-parte. The second defendant alone was contesting the suit, however there is no claim as against the second defendant. Excepting the second defendant, no other defendants have let in evidence before the trial Court and therefore, an adverse inference as rightly submitted by the learned counsel for the appellants has to be drawn under Section 114 'g' of the Indian Evidence Act as against the defendants as observed in the decision of the Apex Court in VIDHYADHAR VS. MANIKRAO AND ANOTHER (1993 [3] SCC 573). Paragraph No.17 of the said decision reads as follows:
Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in SARDAR GURBAKHSH SINGH V. GURDIAL SINGH. This was followed by the Lahore High Court in KIRPA SINGH V. AJAIPAL SINGH and the Bombay High Court in MARTAND PANDHARINATH CHAUDHARI V. RADHABAI KRISHNARAO DESHMUKH. The Madhya Pradesh High Court in GULLA KHARAGJIT CARPENTER V. NARSINGH NANDKISHORE RAWAT also followed the Privy Council decision in SARDAR GURBAKHSH SINGH case. The Allahabad High Court in ARJUN SINGH V. VIRENDRA NATH held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of Punjab and Haryana High Court in BHAGWAN DASS V. BHISHAN CHAND drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
40.As adumbrated supra, the deceased plaintiff has not sought for any relief as against the second defendant, however he has chosen to file his written statement. In this connection, this Court would like to place it on record that mere filing of written statement alone is not sufficient to substantiate his case. He must come, enter into the box and adduce evidence to add an additional strength to his case.
41.Section 103 of the Code of Civil Procedure deals with Power of High Court to determine issue of fact. Section 103 enacts as under:
In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a)which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b)which has been wrongly determined by such Court by reason of a decision on such question of law as is referred to in Section 100.
42.As decided in BALAI CHANDRA VS. SHEWDHARI JADAV (AIR 1978 SC 1062), the jurisdiction of the High Court to decide a question of fact not determined by the lower appellate Court is confined to evidence on record, which is sufficient to determine such question of fact necessary for the disposal of the appeal. It does not extend to the appreciation of additional evidence being led before it - a function which is more appropriately performed by lower Courts.
43.As pointed by Mr.N.Manokaran, learned counsel for the appellant, the lower appellate Court has not followed the provisions of Rule 31 of Order 41 of the Code of Civil Procedure. In this connection, this Court would like to have reference to the decision in H.SIDDIQUI (DEAD) BY LRS. VS. A. RAMALINGAM (2011 [4] SCC 240). Paragraph No.21 of the said decision reads as follows:
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 provision if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects 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 (i)SUKHPAL SINGH V. KALYAN SINGH,
(ii) GIRIJANANDINI DEVI V. BIJENDRA NARAIN CHOUDHARY,
(iii)G.AMALORPAVAM V. R.C.DIOCESE OF MADURAI,
(iv)SHIV KUMAR SHARMA V. SANTOSH KUMARI and
(v)GANNMANI ANASUYA V. PARVATINI AMARENDRA CHOWDHARY)
44.On the other hand, Mr.V.S.Kesavan, learned counsel for the respondent has submitted that the lower appellate Court has observed in paragraph 13 of its judgment based on the boundaries relating to the defendant's property, that the defendants' property is located on the Eastern side of the North-South canal and therefore, it is to be accepted that the property lying on the Eastern side of the North-South canal belonged to the defendants. The arguments advanced by the learned counsel for the respondents 4 and 5 is not discernible because as already observed by this Court in the foregoing paragraphs, the finding of the Courts below is absolutely perverse in nature without proper appreciation of evidence available on record and therefore, this piece of argument advanced by Mr.V.S.Kesavan, learned counsel is to be rejected.
45.Exs.B.2 and B.3 stand in the name of the second defendant, which are subsequent to Ex.A.2 and therefore, it is for the defendants to verify prior encumbrance and not for the plaintiff to challenge the subsequent sale deeds Exs.B.2 and B.3, which are in the name of the second defendant since the plaintiff was not a party to the said sale deeds.
46.It is seen from Ex.A.2 that in S.F.No.47, the vendor of the plaintiff was originally having 7 acres and 56 cents of which, he had sold 3960 sq.ft i.e. East-West 12 ft and North-South 330 ft in favour of the original plaintiff (since deceased) under Ex.A.2 dated 21.9.1973. Similarly, the sons/the legal representatives of the said Sengoda Gounder had sold some portion to the second defendant under Exs.B.2 and B.3 respectively. It is to be noted that the purchase made by the plaintiff is earlier to the purchase of the second defendant under Exs.B.2 and B.3.
47.In such circumstances, after having lost all the interest, right and title in the property forming the subject matter of the present suit by the original owner under Ex.A.2 dated 21.9.1973 in favour of the plaintiff, no valid title could be passed on the second defendant being the subsequent purchaser of the very same property from the very same owner. Therefore, the substantial question of law is answered in favour of the plaintiff. This Court has made an analytical approach on the judgments of the Courts below and found that they are perverse in nature without understanding the intrinsic evidentiary value.
48.In the result, the second appeal is allowed. The judgments and decrees of the Courts below are set aside and the suit in O.S.No.523 of 1995 is decreed as prayed for with costs throughout. Consequently, C.M.P.No.8039 of 2005 is closed.
49.The defendants 1, 4 and 5 are directed to remove the construction made in the suit property and they shall restore the same in its original position within a period of three months from the date of receipt of a copy of this judgment.
14.11.2014
Index: yes/no
Internet: yes/no
cla
T.MATHIVANAN,J.
cla
To
1. The Principal Subordinate Judge,
Erode.
2. The Principal District Munsif,
Erode.
3.The Section Officer, V.R.Section,
High Court, Madras.
S.A.No.508 of 2005
14.11.2014