Madras High Court
C.N.Ambalavannan vs C.N.Janakiraman (Died) on 18 June, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras Dated: 18 .06.2012 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH Second Appeal No.810 of 1998 1. C.N.Ambalavannan 2. C.N.Padmanabhan 3. C.N.Prushothaman 4. P.Namasivayam 5. Inbasekaran ... Appellants ..Vs.. 1. C.N.Janakiraman (died) 2. Mohan 3. Sugunavathi 4. Kumar, J. 5. J.Ilango 6. Santhakumari 7. Manjula ... Respondents (Respondents 3 to 7 are brought on records as legal representatives of the deceased first respondent as per order dated 08.09.2003 made in CMP.Nos.2829 to 2831 of 2000) Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 22.01.1997 made in A.S.No.19 of 1996 on the file of the Subordinate Judge, Chengalpattu, reversing the judgment and decree dated 26.03.1996 made in O.S.No.299 of 1989 on the file of the District Munsif, Maduranthakam. For Appellants .. M/s.T.V.Krishnamachari For Respondent -2 .. No appearance For Respondents 3 to 7 .. Mr.V.Narayanasamy JUDGMENT
This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.19 of 1996 dated 22.01.1997 in reversing the judgment and decree passed by the trial court made in O.S.No.299 of 1989 dated 26.03.1996 in dismissing the suit.
2. The appellants herein were the defendants 1 to 5 and the first respondent was the plaintiff and the second respondent was the 6th defendant respectively before the trial court. The respondents 3 to 7 are the legal representatives of the deceased first respondent / plaintiff.
3. The case of the plaintiff before the trial court as stated in the plaint would be as follows:-
The plaintiff is the absolute and exclusive owner of the schedule mentioned property. He has purchased the same under a registered sale deed dated 10.11.1987 from Power Agent of Radhakrishna Reddiar. Since the date of sale, the plaintiff is enjoying the schedule mentioned property. He is doing all acts of ownership. After the purchase, he has fenced the property. The plaintiff and his predecessors in title have prescribed title over the schedule mentioned property. The plaintiff is in absolute possession and enjoyment of the same. The defendants have no manner of right, interest or title to the suit property. The defendants 1 to 3 are the brothers of the plaintiff, who are residing in the adjacent plot on the western side of the suit property. The brothers are divided. The plaintiff is also entitled to share in the Thottam and in the house situated on the western side of the suit property. The defendants cannot prevent the enjoyment of the plaintiff over the suit property. The defendants without any right attempted to interfere with the plaintiff's peaceful possession of the suit property by destroying the fencing of the plaintiff on the south-west portion of the fencing and also attempted to interfere by draining out water in the suit property. One such attempt was made on 05.09.1989. The same was successfully prevented. The defendants partly damaged the fencing on the western side. At any time, the defendants will trespass into the suit property. Hence, the suit.
4. The objections raised by the first defendant as adopted by other defendants in their written statement would be as follows:-
The plaintiff is not the absolute owner of the suit property as alleged nor he is in absolute possession. No doubt, the plaintiff has purchased 0.20 cents under the sale deed, but not the entire suit property. The plaintiff is not having any title, right or interest over an extent of 3 feet breadth and 75 feet approximate length on the west of the suit property, which is a 'narasam'. The plaintiff purchased the suit property only on the east of 'narasam'. On the west of 'narasam', this defendant has got his property, which is ancestral in nature, by way of family partition. The family partition was reduced into writing by kurchit and the same is available with the plaintiff. On the north of this defendant's property, second defendant's property situate and on the west, the fifth defendant's property situate. There are other sharers for whom a separate property has been allotted on the south of the Thennandai Veedhi. There is a common well situate on the north of the plaintiff's house in which this defendant, 2nd defendant, 5th defendant and the plaintiff have right to take water. The well is not an exclusive property of the plaintiff. To take water from the common well, this defendant, 2nd defendant and 5th defendant have to go through only the said 'narasam' and there is no other way. Hence, the 'narasam' has been used for ingress and egress. The parties have been utilising the 'narasam' from the date of family partition. The plaintiff developed hostile attitude prior to suit and in order to defeat this defendant and other sharers from enjoying the common well, the plaintiff wantonly purchased 0.20 cents on the east of 'narasam' and attempting to annex the 'narasam' into the purchased property. The plaintiff has also put up motor in the common well and taking the entire water thereby preventing the other sharers from taking water, which is illegal. The plaintiff did not raise any crops or grew trees in the 'narasam'. The plaintiff has no cause of action at all to file the suit. The second and sixth defendants are unnecessary parties in the suit. There is no merits in the suit. Therefore, the suit is liable to be dismissed with costs.
5. Based on the pleadings stated above, the trial court had framed necessary issues and entered trial. After appraising the evidence adduced before it, the trial court had come to the conclusion of dismissing the suit. Aggrieved by the said dismissal order, the plaintiff filed an appeal before the first appellate court in A.S.No.19 of 1996. The first appellate court heard the arguments of both sides and had come to a conclusion of allowing the appeal and thereby, the judgment and decree passed by the trial court was reversed and thus, the suit was decreed in favour of the plaintiff.
6. The defendants 1 to 5, having aggrieved by the said reversal judgment of the first appellate court, preferred this appeal challenging the judgment and decree passed by the first appellate court in A.S.No.19 of 1996.
7. On admission, this Court had formulated the following substantial questions of law for being considered in this appeal:-
a) Whether the learned Appellate Judge misconstrued the judgment and decree passed in O.S.No.299 of 1989 ? and
b) Whether the learned Appellate Judge has strictly followed the provisions of Order 41 Rule 27 CPC in allowing the Additional Documentary Evidence and erroneously marked the alleged bogus 'koorchit' ?
8. Heard Mr.T.V.Krishnamachari, learned counsel for the appellants / defendants 1 to 5 and Mr.V.Narayanasamy, learned counsel for the respondents 3 to 7 / legal representatives of the plaintiff. No representation for the second respondent / sixth defendant.
9. The learned counsel for the appellants / defendants 1 to 5 would submit in his argument that the judgment and decree passed by the first appellate court in reversing the judgment and decree of the trial court was not based on finding any grave error or any omission committed by the trial court, but the first appellate court had simply stated its different opinion and thus, reversed the judgment. He would further submit that the suit property purchased by the plaintiff was only 0.20 cents and it would not cover the entire suit property. He would further submit that the plaintiff would not get any title, right or interest over an extent of 3 feet breadth to the length of 75 feet immediately on the west of the suit property, which is a 'narasam' (pathway) to be used for the brothers including the plaintiff to go over to the common property allotted to them in a partition. He would further submit that the property purchased by the plaintiff was located on the east of the said 'narasam' and therefore, the suit filed by the plaintiff cannot be decreed including the said 'narasam'. He would further submit that the plaintiff and other defendants were parties to the 'koorchit', which would bind the plaintiff also and the said original 'koorchit' was not produced by the plaintiff before the trial court and therefore, the trial court had correctly come to a conclusion of dismissing the suit filed by the plaintiff. He would also submit in his argument that the xerox copy of the 'koorchit' along with tax receipt were produced before the first appellate court and the first appellate court had erroneously admitted those documents as additional evidence and gave a marking of Exs.A2 and A3 and thus, came to an erroneous conclusion that there was no 'narasam' left to go to the backyard of the properties allotted to the defendants 1 and 2 and the plaintiff, located on the western side of the suit property. He would further submit that the original 'koorchit' was available only with the plaintiff and the plaintiff did not produce the same into the trial court and therefore, the trial court had rightly drawn adverse inference against the plaintiff. He would further submit that the said 'koorchit' as admitted by the first appellate court was not actually admissible for want of registration under Sections 17 and 49 of the Registration Act as the said documents are compulsorily registrable. He would cite a judgment of the Hon'ble Apex Court reported in AIR 1974 Supreme Court 1066 (Ratan Lal Sharma ..vs.. Purshottam) for the said principle. He would also cite a judgment of this Court reported in 1997 (2) LW 899 (Kalimuthu Pillai ..vs.. Velusami and others) for the same principle. Yet another judgment of the Hon'ble Apex Court reported in AIR 1970 SC 833 (Satish Kumar ..vs.. Surinder Kumar) has also been relied upon by the learned counsel for the appellants for the same position of law. He would further submit in his arguments that the first appellate court ought to have come to the conclusion of reversing the findings of the trial court after assigning sufficient and cogent reasons only. He would also submit that the first appellate court, however, did not assign sufficient reason to reverse the judgment of the trial court. He would rely upon a judgment of the Hon'ble Apex Court reported in 2007 (4) SCC 163 (Chinthamani Ammal ..vs.. Nandagopal Gounder and another) in support of his argument. Similarly he would also quote the judgment of the Hon'ble Apex Court reported in 2012 (1) CTC 216 (State Bank of India & another ..vs.. Emmsons International Ltd., & another) for the same principle. He would, therefore, submit that the first appellate court had reversed the finding of the trial court without any reasons and therefore, he would request the Court that the judgment and decree passed by the first appellate court may be interfered and set aside and the judgment of the trial court in dismissing the suit filed by the plaintiff may be restored and the Second Appeal may, thus, be allowed.
10. The learned counsel for the first respondent / plaintiff would submit in his argument that the first appellate court was quite correct in reversing the judgment and decree passed by the trial court, which did not perceive the evidence properly. He would further submit that the trial court had imperfectly appraised the evidence and put the burden of proving on the plaintiff that there was no 'narasam' on the western side of the suit property, which was said to have been left for the use of the joint family members. He would also submit that the definite case of the plaintiff that the suit property purchased by him was lying adjacent east of the houses of the defendants 1 and 2 was admitted by the defendants in their written statement as well as in their evidence and when they admitted that the suit property is lying east of their houses, the plead put forth by them that there was a 'narasam' left, to the east of their houses through a 'koorchit' ought to have been proved by them. He would further submit that even otherwise, the plaintiff was bound to show that there was no 'narasam' on the western side of the suit property by producing the 'koorchit' and the plaintiff could at best produce the copy furnished to him and accordingly, the xerox copy given to him in respect of the partition had in between his brothers and himself was produced before the trial court, but it was erroneously rejected by the trial court and therefore, it was produced before the first appellate court as additional evidence and the same was considered by the first appellate Court that it would enable the Court to pronounce the judgment and accordingly, it was ordered to be received as Ex.A2. He would further submit that even otherwise, the suit ought to have been decreed without the production of the 'koorchit', since it was the bounden duty of the defendants to show that there was a 'narasam' on the western side of the suit property or eastern side of their house property in order to disprove the case of the plaintiff. He would further submit that the Commissioner's report and sketch were defective, since the Commissioner visited the place after the fence were removed and shifted by the defendants on the eastern side and therefore, the gap shown in between the fence and the house properties of the defendants would not in any way give the defendants any pathway right. He would also submit that the first appellate court elaborately discussed the evidence and had come to a conclusion for reversing the judgment of the trial court which was patently against the principles regarding burden of proof. The admission given by the defendants would clinchingly show that the suit property is lying immediately on the eastern side of the houses of the defendants 1 and 2 and therefore, there could not be any 'narasam' as pleaded by the defendants. He would further submit that the judgments as cited by the learned counsel for the appellants / defendants 1 to 5 in respect of the registration of document under Sections 17 and 49 of the Registration Act would not apply to the 'koorchit', because the said 'koorchit' was executed in between the brothers to evidence an oral partition already had by them and such a 'koorchit' does not require registration. He would also submit that the said judgments were dealing with the registration of award and other documents which cannot be applied to a 'koorchit' - a document subsequently executed in between the parties to evidence an oral partition. He would also submit that the first appellate court based its findings purely on the evidence and corrected the error committed by the trial court and therefore, the principles laid down in the judgments cited by the learned counsel for the appellants regarding the interference of the first appellate court to the facts found by the trial court was quietly complied and followed by the first appellate court and therefore, the judgment and decree passed by the first appellate court may not be disturbed and the appeal may be dismissed with costs.
11. I have given anxious thoughts to the arguments advanced on either side.
12. The suit was filed by the respondent / plaintiff for the following reliefs:-
"1. declaring the title of the plaintiff over the schedule mentioned property;
2. restraining the defendants, their men, agents, servants, representatives from in any way interfering with the plaintiff's peaceful possession and enjoyment of the schedule mentioned property by way of drying out waste water in the schedule mentioned property, or by any other mode permanently.
3. to pay the cost of the suit"
13. The case of the plaintiff that he is entitled to the suit property ought to have been established by the plaintiff by adducing cogent evidence. The evidence adduced by the plaintiff that he had purchased the property through Ex.A1 was not seriously disputed by the defendants. The extent of the suit property was 20 cents and the said property is located in S.No.110/1 in gramanatham was not a serious dispute. However, the defendants would say that the suit property purchased by the plaintiff in Ex.A1 was lying on the eastern side of a 'narasam' (pathway) measuring 3 feet East-West and 75 feet North-South adjacent to the houses of defendants 1 and 2. The plaintiff was examined himself for the purpose of proving title of the suit property obtained through the said sale deed. The first appellate court had appraised the evidence of DW.1 and found that the defendants did not dispute the boundaries referred to in Ex.A1 sale deed and therefore, it had come to a conclusion that the suit property was immediately lying on the eastern side of the houses of the defendants 1 and 2. However, it had also found that the first defendant did not raise any plea that the boundaries were wrongly mentioned in Ex.A1 and since the defendants had not raised such plea, the boundaries mentioned in Ex.A1 was found to have been proved. In support of its decision, the first appellate court had referred to the admission of DW.1 in his evidence that the suit property was on the eastern side of the defendant's house and the ancestral property was lying on the western side of the suit property.
14. Apart from that the first appellate court had found that the Commissioner's Report would show a fence with different breadths at various points in between the houses of the defendants 1 and 2 and the fence and the reference to that gap as 'narasam' by the Commissioner was not correct, since the Commissioner inspected the suit property long after the date of filing of the suit and DW.1 has admitted that he has removed the said fence put up by the plaintiff. On a careful verification of the evidence of DW.1, I could see that DW.1 would admit that he had removed the fence put up by the plaintiff and the Commissioner also noted the gap measuring at 4 feet or 3 feet distance in between the fence and the houses of defendants 1 and 2. Therefore, the finding reached by the first appellate court that the Commissioner's report did not depict the correct location of the suit property is quite correct. In the said circumstances, the admission made by the first defendant as DW.1 in his evidence that the suit property is located on the eastern side of their houses would go to show that there was no 'narasam' in between the suit property and the houses of the defendants 1 and 2 as put forth by the defendants.
15. However, the defendants have raised a plea that there was a 'narasam' lying on the eastern side of the houses of the defendants 1 and 2 so as to reach the backyards allotted to the defendants' brothers who jointly owned the houses as well as the backyard portion and the said 'narasam' was mentioned in the 'koorchit' executed between the plaintiff and the defendants in respect of the family partition. The defendants' further case would be that the 'koorchit', an important document which was in the custody of the plaintiff, ought to have been produced for the purpose of establishing the case of the plaintiff. As far as the plea of the defendants that the plaintiff failed to produce the original 'koorchit' so as to prove his case is concerned, I could see that the plaintiff did not mention about any 'koorchit' in his pleadings so as to claim that there was no 'narasam' on the western side of the suit property. He has claimed his title only through the sale deed - Ex.A1. As I have already seen, the boundaries in Ex.A1 would show that the western boundary was the defendants' houses. The said fact was also admitted by the defendants in their evidence. In such circumstances, it is the case of the defendants that there was a 'narasam' mentioned in the said 'koorchit' entered into between the brothers in respect of the joint properties lying on the western side of the suit property. The said plea raised by the defendants ought to have been proved only by the defendants in order to disprove the case of the plaintiff established through the evidence. Per contra, the trial court has confused itself that the original 'koorchit' was not produced by the plaintiff and therefore, adverse inference should have been taken against the plaintiff for the purpose of disallowing the claim of the plaintiff. Even after the admission of the defendants in their evidence regarding the lie of the properties and the boundaries mentioned in Ex.A1, the trial court had insisted for the production of 'koorchit' on the side of the plaintiff to show that there was no 'narasam' as mentioned in the 'koorchit' which is totally against the concept of law on burden of proof. However, the first appellate court was also swayed by the arguments that the 'koorchit' is necessary for deciding the case, had ordered to admit the xerox copy of the 'koorchit' produced by the plaintiff along with tax receipt as Exs.A2 and A3. The first appellate court had thus come to a conclusion that there was no reference as to 'narasam' on the eastern side of the defendants' house and consequently, there was no 'narasam' at all. The first appellate court had also forgotten that the plea was raised only by the defendants as to the presence of 'narasam' in the 'koorchit' entered into between the brothers namely, the plaintiff and the defendants and therefore, it is the burden of the defendants to produce necessary documentary evidence namely the original 'koorchit' or admissible copy of it before the courts below to show that there was a 'narasam'. But it was not done by the defendants. However, the plaintiff had filed an application under Order 41 Rule 27 CPC and had got the documents admitted as additional evidence.
16. It was also argued before this Court by the learned counsel for the appellants / defendants 1 to 5 that the original 'koorchit' which was in the custody of the plaintiff ought to have been produced to reach correct conclusion and therefore, the order of reception passed by the first appellate court regarding the xerox copy of the 'koorchit' was not a correct order and for that purpose, the court may pass suitable orders even for a remand. In my earlier discussions, I am of the considered view that the production of 'koorchit' is purely, the burden or duty of the defendants for the purpose of disproving the case of the plaintiff and it is not bounden duty for the plaintiff to prove the negative aspect. Therefore, the said argument advanced by the learned counsel for the appellants/defendants 1 to 5 is not sustainable.
17. Furthermore the learned counsel for the appellants / defendants 1 to 5 was seriously disputing the admissibility of the said xerox copy of the 'koorchit' admitted as additional evidence in Ex.A2 that the said document was compulsorily registerable document and a catena of judgments of Hon'ble Supreme Court as well as this Court have been submitted for that purpose. In the said judgments, viz., AIR 1970 SC 833 (Satish Kumar ..vs.. Surinder Kumar), AIR 1974 Supreme Court 1066 (Ratan Lal Sharma ..vs.. Purshottam); and 1997 (2) LW 899 (Kalimuthu Pillai ..vs.. Velusami and others), it has been categorically referred to the compulsory registration of award for worth more than Rs.100/- was found to have been registrable under Section 17(1)(b) of the Registration Act. The impugned document in this case is a 'koorchit' executed by the joint family members in order to recognize an earlier partition had in between them. It is a settled principle of law that a 'koorchit', which is containing the schedule of properties allotted to them in an earlier partition, need not necessarily be stamped or registered. The nomenclature 'koorchit' itself would mean 'the list of partitioned properties' (TW rPl;L). Therefore, I could see that the judgments cited by the learned counsel for the appellants / defendants 1 to 5 have no application to the present facts of the case.
18. It is also insisted by the learned counsel for the appellants / defendants 1 to 5 that the first appellate court has not given any reasons for reversing the well considered judgment of the trial court. For that he has referred to a judgment of the Hon'ble Apex Court reported in 2007 (4) SCC 163 (Chinthamani Ammal ..vs.. Nandagopal Gounder and another). The relevant passage would be as follows:-
"18. Furthermore, when the learned trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first appellate court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW.2, the learned Judge did not consider any other materials brought on record by the parties."
19. When the principle laid down by the Hon'ble Apex Court is applied in this case, we have to see the question whether the first appellate court had not applied its mind towards evidence before reversing the judgment of the trial court. The trial court had taken adverse inference for not producing the 'koorchit' by the plaintiff and had dismissed the suit filed by the plaintiff by holding that the plaintiff did not prove the non-existence of 'narasam'. As already discussed, the existence of 'narasam' and the mentioning of the same in the 'koorchit' was pleaded only by the defendants. But, the trial court has miserably failed to understand the principles governing burden of proof and had cast the burden on the plaintiff to produce the 'koorchit' and had wrongly drawn adverse inference. Whereas the first appellate court had seen the evidence of DW.1 as to the boundaries of suit property as well as the truth and genuineness of Ex.A1 and the boundaries stated therein and had come to a conclusion on correctly appreciating the evidence. Therefore, it cannot be said that the first appellate court did not consider the evidence and without reasons reversed the judgment and decree of the trial court. Ex facie the judgment and decree passed by the trial court in dismissing the suit are liable to be interfered. Therefore, I could very well appreciate the reversal judgment of the first appellate court, which has purely based its conclusion on the evidence adduced by the parties.
20. It is also cited by the learned counsel for the appellants / defendants 1 to 5 yet another judgment of the Hon'ble Apex Court reported in 2012 (1) CTC 216 (State Bank of India & another ..vs.. Emmsons International Ltd., & another) for the same principle. The relevant passage would run as follows:-
"26. In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact. This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained."
Therefore, the said principle laid down in the judgments of the Hon'ble Supreme Court as well as this Court have been promptly followed by the first appellate court and thus, reversed the judgment of the trial court.
21. For the foregoing discussions, I am of the considered view that the questions of law framed are liable to be decided against the appellants. Therefore, I find no reasons to interfere with the findings of facts by the first appellate court. There is no reason for remand of the case to the first appellate court as sought for by the learned counsel for the appellants / defendants 1 to 5 for enabling the production of original 'koorchit'. Therefore, the judgment and decree passed by the first appellate court in reversing the judgment and decree of the trial court are confirmed and thus, the Second Appeal deserves to be dismissed.
22. In fine, the Second Appeal preferred by the defendants 1 to 5 is liable to be dismissed and the judgment and decree passed by the first appellate court in reversing the judgment and decree of the trial court are confirmed. Since the parties are closely related, there is no order as to costs.
18 .06.2012 Index :Yes/No Internet :Yes/No mra To
1. The Subordinate Judge, Chengalpattu.
2. The District Munsif, Maduranthakam.
V.PERIYA KARUPPIAH,J.
mra Pre-delivery Judgment in Second Appeal No.810 of 1998 18.06.2012