Madras High Court
Amaravathi vs Sankaranarayanan on 4 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.07.2018
CORAM
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.(MD)No.475 of 2009
1.Amaravathi
2.Sankaraparvathy @ Rajathi
3.Mariappan : Appellants
Vs.
1.Sankaranarayanan
2.Murugan
3.Avudaiappan : Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
praying to set aside the judgment and decree passed in A.S.No.82 of 2007
dated 18.11.2008, on the file of the I Additional Sub-Court, Tirunelveli,
confirming the judgment and decree passed in O.S.No.421 of 2005 dated
18.09.2006, on the file of the Principal District Munsif Court, Tirunelveli
and allow the suit in O.S.No.421 of 2005, on the file of the Principal
District Munsif Court, Tirunelveli.
!For Appellants : Mr.Meenakshisundaram
for Mr.D.Nallathambi
^For Respondents : Mr.H.Arumugam
:JUDGMENT
The suit properties in the suit, out of which this second appeal arises is contained in three Schedules. Three Schedules in the plaint are one plot of land each. In Schedule I, the plot admeasures 1542 Sq. ft. or thereabouts and there is a small superstructure thereon. Schedule II is a plot admeasuring 1247 Sq. ft or thereabouts and Court is informed that there is no superstructure thereon. Schedule III is a plot admeasuring 731 Sq. ft and Court is informed that there is no superstructure on this plot also. To be noted, the measurements in the plaint are given in different units, but conversion into Sq. ft. was done at the hearing by both the learned Counsel and there is no dispute or disagreement between the two learned Counsel with regard to the extent, though the extent is not of any great relevance in the instant second appeal.
2.Before adverting to facts further, it is necessary to set out a genealogy which was placed before this Court by both the learned Counsel. Though this genealogy was not marked in the Courts below, for the purpose of ease of reference and for the purpose of clarity / convenience in the hearing, both the learned Counsel submitted in unison that the undisputed genealogy may please be looked into. The genealogy is as follows:
GENEALOGY Avudaiappa Thevar X Y 3rd Wife 4th wife Sankaraparvathiammal Arunachalathammal Adoption Died on 18-08-99 Thuraichi Essakimuthu 20-03-72 (Settlement) Plaintiff No.1&2 Deceased Son Defendants 1 to 3 Plaintiff No.3
3.Two daughters and one grand son (son of the pre-deceased son) of one Thuraichi, filed a suit being O.S.No.421 of 2005, on the file of the Principal District Judge's Court, Tirunelveli, on 26.07.2005. In this suit, there were three defendants. The three defendants are the three sons of one Essaki Muthu.
4.Thuraichi, according to the plaintiffs is the daughter of one Sankaraparvathiammal, who is the third wife of one Avudaiappa Thevar. Essaki Muthu is the son of one Arunachalathammal, fourth wife of Avudaiappa Thevar. Court is informed that Sankaraparvathiammal and Arunachalathammal lived at the same point of time and therefore, they shall hereinafter be referred to as 'senior wife' and 'junior wife', respectively for the sake of convenience and clarity. Court is also informed that senior wife and junior wife are blood sisters and therefore, predecessors of parties at lis will not only qualify as half siblings but they will qualify as cousins too.
5.The aforesaid three plots (with superstructure on one plot alone) which are contained in the three Schedules to the plaint, about which there is a small description supra, shall hereinafter be referred as 'suit properties', for the sake of convenience and clarity. There is no dispute or disagreement that the senior wife became owner of the suit properties vide Exs.A.1. and A.2., which are sale deeds. Also to be noted, Exs.A.1. and A.2. are certified copies of sale deeds and Exs.B.1. and B.2., are the original sale deeds that were marked before the Principal District Munsif Court, Tirunelveli. 'Principal District Munsif Court, Tirunelveli', shall hereinafter be referred to as 'trial Court', for the sake of brevity and convenience.
6.Suit in the trial Court was for declaration of title and consequential injunction qua suit properties. It is the case of the plaintiffs that they being sons and grandson of Thuraichi, inherited the suit properties from her and Thuraichi in turn inherited the suit properties from her mother ie., senior wife, after her demise. It is the case of the plaintiffs that they inherited the suit properties after demise of Thuraichi, on 18.08.1999.
7.Defendants who entered appearance and filed a written statement took three pleas. Two pleas turned heavily on facts and one was a legal plea. The first plea on facts is that Thuraichi is not the daughter of senior wife and therefore, Thuraichi had not inherited suit properties from the senior wife. Second plea on facts is that defendants' father Essaki Muthu was adopted by the senior wife and therefore, the suit properties devolved only on the defendants' father. The third plea is a legal plea and that is to the effect that the plaintiffs not having chosen to seek the relief of recovery of possession, cannot maintain the aforesaid suit in the trial Court in the light of Section 34 of the Specific Relief Act, 1963 (47 of 1963). It is also the case of the defendants that they have been in continuous possession of the suit properties for well over the statutory period of twelve years and therefore, the plaint filed without a prayer for recovery of possession is hit by the proviso to Section 34 of Specific Relief Act, 1963.
8.On the aforesaid three pleas, parties went to trial. In the trial, with regard to the two factual issues that were raised, Ex.B.3., which is a settlement deed executed by senior wife being settlement deed dated 20.03.1972, was pressed into service, with regard to the adoption plea. According to the defendants, there is a recital in this settlement deed which evidences adoption. With regard to the plea that Thuraichi is not the daughter of senior wife, obviously the burden was on the plaintiffs. However, the plaintiffs did not produce any documents in this regard, in the trial Court. With regard to the legal plea which touches upon possession and turns on Section 34 of Specific Relief Act, 1963, Exs.B.3. to B.7., being revenue records, were marked on behalf of defendants.
9.Second plaintiff examined himself as P.W.1 and one Ganapathi Thevar, who is plaintiffs' relative was examined as P.W.2. Three documents, namely, Exs.A.1. to A.3. were marked on the side of the plaintiffs. On the side of the defendants, the third defendant examined himself as D.W.1. One Subramanian, a local resident was examined as D.W.2. After full contest, the trial Court, holding that the plaintiffs have not discharged their burden of proof, dismissed the suit vide judgment and decree dated 18.09.2006. To be noted, even with regard to the adoption plea, the trial Court had held that the burden is on the plaintiffs and that the plaintiffs have not discharged the burden of proof. With regard to Thuraichi, trial Court held that the plaintiffs have not discharged the burden of proof cast on them.
10.Plaintiffs carried the matter in appeal by way of a regular first Appeal under Section 96 of the 'Code of Civil Procedure, 1908' [hereinafter referred to as 'CPC' for the sake of brevity]. This regular first appeal is A.S.No.82 of 2007, on the file of the 'I Additional Sub Court, Tirunelveli', which shall hereinafter be referred to as the 'first appellate Court', for the sake of convenience and clarity.
11.In the first appellate Court, plaintiffs took out two applications. One is I.A.No.29 of 2008 and the other is I.A.No.76 of 2008. Both these Interlocutory Applications are under Order XLI Rule 27 CPC. With regard to I.A.No.29 of 2008, the same was taken out by the plaintiffs with a plea to mark two documents. One document is proceedings of / communication from the jurisdictional Tahsildar and the other is death certificate of Thuraichi. As far as I.A.No.76 of 2008 is concerned, the plaintiffs sought to mark one document. That one document, according to plaintiffs is the birth certificate of Thuraichi. To be noted, it is referred to as birth certificate extract. As the document is in any event before Court, the nomenclature will be as found in the document.
12.The manner in which these two applications were dealt with (by the first appellate Court), both of which are under Order XLI Rule 27 CPC, for adducing additional evidence at the appellate stage, is what has become very critical and crucial in this entire second appeal.
13.This shall be alluded to infra in the later part of this judgment.
14.The first appellate Court took up both the aforesaid applications along with the main appeal and the main appeal came to be dismissed, confirming the judgment and decree of the trial Court. This was vide judgment and decree dated 18.11.2008, made by the first appellate Court. Aggrieved, plaintiffs carried the matter to this Court by way of the instant second appeal. The instant second appeal was admitted on 18.09.2009, on the following two substantial questions of law:
?1.When the additional documents produced by the appellants / plaintiffs goes to the root of the matter and the same is necessary to decide the case, whether the lower appellate Court is correct in rejecting the same and thus warrants interference under Section 100 of Civil Procedure Code?
2.When the lower appellate Court has rejected the additional documents produced by the plaintiffs, whether the approach of the lower appellate Court in relying upon those documents for dismissing the appeal filed by the appellants / plaintiffs is correct and thus warrants interference under Section 100 of Civil Procedure Code.??
15.Thereafter, plaintiffs who are appellants before this court took out a Civil Miscellaneous Petition being C.M.P.[MD]No.7610 of 2016, invoking the proviso to Section 100 CPC. The prayer in that Civil Miscellaneous Petition was for formulation of additional substantial questions of law. An order came to be passed in that Civil Miscellaneous Petition on 09.08.2016, by this Court, wherein and whereby, four additional substantial questions of law were formulated and the same read as follows:
?(i)Whether the suit for declaration and injunction without the prayer of recovery of possession is hit by Section 34 of Specific Relief Act?
(ii)Whether the courts below are correct in shifting the burden of proof regarding Ex.B3 settlement deed to the shoulders of the plaintiffs, when the same is pleaded by the defendants?
(iii)When there is no explanation about the non production of original document of Ex.B3 (settlement deed) by the defendants, whether the courts below are correct in accepting and marking the settlement deed on the side of the defendants as secondary evidence as against Section 63 of Indian Evidence Act, 1872?
(iv)Whether the factum of adoption of Esakki Muthu Thevar by the original owner Sankaraparvathiammal, pleaded in the written statement was proved by the defendants as mandate under law??
16.From the narrative supra, it will be clear that when this second appeal was placed before this Court and taken up for hearing for final disposal today, effectively, there were six substantial questions of law in all. For the sake of convenience and clarity, the two substantial questions of law on which the second appeal was originally admitted on 18.09.2009 and the four additional substantial questions of law which were formulated and framed by this Court (by my predecessor Hon'ble Judge) on 09.08.2016 are referred to in alpha seriatim in one sequence i.e., consecutively. In other words, the two substantial questions of law on which the second appeal was originally admitted shall be referred to as A and B. The four additional substantial questions of law shall be referred to as C, D, E and F, in the order in which they have been set out in the respective orders both of which have been extracted supra.
17.When the second appeal was taken up for hearing, Mr.V.Meeenakshisundaram, learned Counsel for appellants and Mr.H.Arumugam, learned Counsel for respondents were before this Court. Both the learned Counsel made detailed submissions on all aspects, dimensions and dynamics of this case.
18.After hearing both the learned Counsel with sufficient elaboration, it emerged that the entire matter turns on two main aspects. One aspect is the manner in which the first appellate Court has dealt with the two Interlocutory Applications under Order XLI Rule 27 CPC, about which this Court has alluded to supra. The other aspect is placing the burden of proof qua adoption plea of the defendants on the plaintiffs. This second appeal shall now proceed on this basis.
19.This Court shall first take up the first aspect of the matter being the manner in which the two Interlocutory Applications under Order XLI Rule 27 CPC, were dealt with by the first appellate Court in the judgment which is under challenge in the instant second appeal. The entire manner in which the first appellate Court has dealt with these two Interlocutory Applications which were taken up along with the main appeal is articulated in paragraph No.10 of the judgment of first appellate Court. To be noted, there is no reference to these two applications in any other part of the judgment of the first appellate Court. Therefore, it becomes necessary to extract entire paragraph No.10 of the judgment of first appellate Court. I do so and the same reads as follows:
10. ,e;j tHf;F nky;KiwaPL ePjpkd;wj;jpy; epYitapy; ,Ue;j nghJ nky;KiwaPl;lhsh; thjpfs; jug;gpy; TLjyhf Mtzk; jhf;fy; bra;a ntz;Lbkd;W kD bra;J vjph;kDjhuh; jug;gpy; vjpUiu jhf;fy; bra;ahjjhy; kD mDkjpf;fg;gl;L nkw;go kDtpy; brhy;yg;gl;Ls;s Mtzk; ePjpkd;wj;jpy; Vw;Wf;bfhs;sg;gLfpwJ.
nkYk; ,ilf;fhy kD vz;.29/08 y; TLjyhf ,uz;L Mtzq;fs; jhf;fy; kD epYitapy; cs;sJ. nkw;go Mtzj;jpid ghh;itapLk; nghJ mJ 1930k; Mz;L gpr;irf;fhhp vd;w egh; ,we;jjw;fhd ,wg;g[ rhd;wpjH; vd bjhpa tUfpd;wJ. 3-4-1930y; gpr;irf;fhhp vd;gth; Fd;dj;J}hpy; itj;J ,we;Jtpl;ljhft[k; mtUila jfg;gdhh; bgah; Mt[ilag;gj; njth>; jhahh; bgah; rq;fu ghh;tjp mk;khs; vd;gjhf Fwpg;gpllg;gl;oUf;fpwJ. nkw;go TLjy; Mtzj;jpy; gpr;irf;fhhp (v) Jiur;rp vd;W Fwpg;gplg;gltpy;iy. nkYk; nkw;go Mtzk; ,wg;g[ gjpt[ bra;ag;g;Ls;s epiyapy; fPHik ePjpkd;wj;jpy; tprhuizapd; nghJ jhf;fy; bra;ag;glhjjw;F rhpahd fhuzq;fs; nky;KiwaPl;L thjpahy; Fwpg;gplg;gltpy;iy. nkw;go Mtzk; khtl;l gjpthsh; mYtyfj;jpy; thjpfshy; bgwg;gl;ljhFk;. mJ 22-8-2005y; fz;fhzpg;ghsh; (rhh; gjpthsh;) jpUbey;ntyp ifbaGj;J bra;jjhft[k; bjhpa tUfpd;wJ. Mf Vw;fdnt Vw;gLj;jg;gl;l Mtzj;jpid tprhuizapd; nghJ jhf;fy; bra;ahky; jw;nghJ jhf;fy; bra;jpUg;gjd; nehf;fk; vJt[k; thjpfs; jug;gpy; kDtpy; tpsf;fg;gltpy;iy. nkYk; Kg;gpy njth; vd;gtUf;F nfhkjp kw;Wk; gpr;irf;fhhp (v) Jiur;rp vd ,uz;L kidtpfs; vd;w rhd;Wk; gpr;irf;fhhp vd;w Jiur;rpapd; ,wg;g[ rhd;wpjGk; jhf;fy; bra;ag;gl;Ls;sJ. ,Ug;gpDk; ,e;j Mtzq;fis ePjpkd;wk; fUj;jpw;bfhz;L ghh;f;Fk;; nghJ gpr;irf;fhhp vd;w bgz; rq;fu ghh;tjp mk;khs; Mt[ilag;gj; njth; vd;gth; kfs; vd;gjhf Fwpg;gplg;gl;oUf;fpwJ. Mdhy; gpr;irf;fhhp vd;w Jiur;rp jhth brhj;Jf;fis rq;fu ghh;tjp mk;khs; fhyj;jpw;F gpd;dh; mDgtk; bra;jhh; vd;gjw;F thjpfs; jug;gpy; Mtzk; vJt[k; jhf;fy; bra;ag;gltpy;iy. 2000k; Mz;L brYj;jpa jPh;it urPJ th.rh.M.3 Mf Fwpaplg;gl;oUf;fpwJ. nkw;go rq;fu ghh;tjp mk;khs; ve;j tUlk; ,we;jhh; vd;gJk; mjw;F gpwF vj;jid Mz;Lfs; Jiur;rp (v) gpr;irf;fhhp jhth brhj;Jf;fis mDgtk; bra;jhh; vd;gjw;Fk; Mtzq;fs; vJt[k; jhf;fy; bra;ag;gltpy;iy. th.rh.2d; rhl;;rpaj;jpid fUj;jpw;bfhz;L ghh;f;Fk; nghJ rq;fughh;tjp mk;khs; gpujpthjpfspd; je;ijahd ,rf;fpKj;Jit jj;Jg; gps;isahf tsh;j;J te;jhh; vd;gJk; cz;ikapy;iy. rq;fughh;tjp mk;khs; ,we;j gpwF jgrpy; brhj;Jf;fis mtuJ thhpRfs; vd;w Kiwapy; ,rf;fpKj;Jt[k; mtUf;F gpd; te;j gpujpthjpfSk;; mDgtk; bra;fpwhh;fs; vd;gJ cz;ik vd;gjhf Twpa[s;shh;. Mf thjpfspd; rhl;rpahd th.rh.2 jgrpy; brhj;Jf;fis rq;fughh;tjp mk;khs; ,we;j gpwF gpujpthjpfspd; jfg;gdhh; Mfpa ,rf;fpKj;J mDgtk; bra;J mjd; gpd;g[ gpujpthjpfs; mDgtk; bra;J tUtjhf bjspthf Twpa[s;shh;. nkYk; FWf;Ftprhuizapy; th.rh.2> 3 gpujpthjpfs; vdf;Fj; bjhpa jhth brhj;J mUfhikapnyna gpwe;jjpypUe;J FoapUe;J tUfpwhh;fs; vd;why; rhpjhd; vd;Wk; 3 gpujpthjpfSk; FoapUe;j tPl;oy; mth;fSf;F Kd;g[ ,rf;fpKj;J njtUk; mjw;F Kd;g[ Mt[ilag;gj; njtUk; FoapUe;J te;jhh;fs; vd;why; rhpjhd; vd;W rhl;rpak; mspj;Js;shh;fs;. Mf jhth brhj;jpYk; mjw;F mUfhikapYk; ,Ue;j brhj;jpYk; gpujpthjpfSk; mjw;F Kd;g[ mth;fSila jfg;gdhh; ,rf;fpKj;Jt[k; mjw;F Kd;g[ Mt[ilag;gj; njtUk; FoapUe;J te;jpUf;fpwhh;fs; vd;gJ thjpfspd; rhl;rpaj;jpd; K:ynk bjhpa tUfpd;wJ. ,e;j tHf;fpy; gpujpthjpfs; jug;g[ Ml;nrgidia ghh;itapLk; nghJ gpujpthjpfs; ,rf;fpKj;Jtpd; thhpRfs; vd;gJk; ,rf;fpKj;J mUzhryj;jk;khs; kw;Wk; Mt[ilag;gj; njtUf;Fk; gpwe;j kfd; vd;gJk; brhy;yg;gLfpwJ. ,e;jf; Tw;Wf;fs; vJt[k; thjpfs; jug;gpy; kWf;fg;gltpy;iy. Mdhy; gpujpthjp rq;fughh;tjp mk;khshy; jj;J vLj;J tsh;f;fg;gl;l kfs; vd;fpd;w Tw;W kl;Lk; thjpahy; kWf;fg;gLfpwJ. rq;fu ghh;tjp mk;khs; gpujpthjpia jj;J vLj;Jf;bfhz;lhh; vd;gjw;F vGj;Jg{h;tkhd Mtzq;fs; vJt[k; ,y;iy. Mdhy; jhth brhj;ij mUzhryj;jk;khs; kfd; ,rf;fpKj;Jt[k; mjd; gpd;g[ gpujpthjpfSk; mDgtk; bra;J tUtjhf thjp jug;g[ rhl;rp Twpa[s;sjd; mog;gilapy; gpujpthjp mUzhryj;jk;khshy; jj;J vLj;jpUf;f tha;g;g[fs; cz;L vd;gjhf gpujpthjp jug;gpy; thjplg;gl;lJ. vdnt gpujpthjp jug;g[ tHf;F Tw;Wf;fspd;go ghh;itapLk; nghJ jhth brhj;J gpujpthjpapd; mDgtj;jpy; ,Ug;gJk; mij bjhlh;e;J gpujpthjpapd; Kd;ndhh;fs; mDgtpj;J jw;nghJ gpujpthjp mDgtk; bra;J tUtJ bjhpa tUtjhy; thjpfs; jhth brhj;J jq;fs; mDgtj;jpy; ,Ug;gjhf TwtJ Vw;Wf;bfhs;sj;jf;fJ ,y;iy. nkYk; gpujpthjp jug;gpy; jhf;fy; bra;ag;gl;;Ls;s Mtzq;fis ghh;itapLk; nghJ gp.th.th.M.3 brl;oy;bkd;l; gj;jpuk; rq;fu ghh;tjp mk;khs;> ,rf;fpKj;Jit jd; kfdhf jj;J vLj;Jf; bfhz;ljd; fhuzkhf jhth brhj;ij brl;oy;bkd;l; bra;J vGjp bfhLj;jjhf bjhpa tUfpd;wJ. nkw;go gp.th.rh.M3 brl;oy;bkd;l; gj;jpuj;jpnyna rq;fughh;tjp mk;khs; jd;Dila bgz; kf;fSf;F rPh; thpirfs; Kiwahf bra;J jpUkzk; bra;J itj;jpUg;gjdhy; ,e;j brhj;ij jd;Dila mgpkhd g[j;jpudhd ,rf;fpKj;Jtpw;F brl;oy;bkd;l; vGjp itj;jpUg;gjhf Fwpg;gpl;Ls;shh;. gp.th.rh.M.3 Mtzk; ,e;j tHf;fpw;fhf cw;gj;jp bra;ag;gl;ljhf thjpfs; jug;gpy; Ml;nrgpf;fg;gLfpwJ. gp.th.rh.M3 Mtzj;jpd; mry; ePjpkd;wj;jpy; jhf;fy; bra;ag;gltpy;iy. cz;ikapy; ,rf;fpKj;Jt[f;F rq;fughh;tjp mk;khs; brl;oy;bkd;l; vGjp bfhLj;jpUe;jhy; mry; Mtzk; ,rf;fpKj;Jtplk; jhd; ,Ue;jpUf;f ntz;Lk;. Mdhy; ,J tHf;fpw;fhf cw;gj;jp bra;ag;gl;l Mtzk; vd;gjhf thjpfs; jug;gpy; thjplg;gl;lJ. gp.th.rh.M3 Mtzk; cz;ikahd Mtzk; ,y;iybad thjpfs; jug;gpy; brhy;yg;gLk; bghGJ mij rk;ge;jg;gl;l ifbaGj;J epg[zUf;F mDg;gp Mtzj;jpd; cz;ikj; jd;ikia mwpa ve;jtpjkhd eltof;iffSk; vLf;fg;gltpy;iy. gp.th.rh.M3 gjpt[ bra;ag;gl;l gjpthsh; mYtyfj;jpy; cs;s rq;fu ghh;tjp mk;khspd; mry; ifbaGj;jpid xg;g[f;bfhs;sg;gl;l rq;fu ghh;tjp mk;khspd; ifbaGj;Jld; xg;gpl;L ghh;j;J mij bka;gpf;f ntz;oa ghL thjpfis bghWj;jpUe;Jk; mJ Fwpj;J eltof;iffs; vJt[k; vLf;fg;gltpy;iy. mjdhy; gp.th.rh.M3 Mtzk; nkhroahd Mtzk; vd TWtJ Vw;Wf;bfhs;sj;jf;fJ ,y;iy.?
20.Both the learned Counsel took me through paragraph No.10 and highlighted their respective stands. Both the learned Counsel pointed out their respective perspectives qua the two Interlocutory Applications based on the pleas projected by the litigants in the Courts below.
21.What can be culled out from paragraph No.10 of the judgment of the first appellate Court is that I.A.No.76 of 2008 'appears' to have been allowed, as no counter has been filed in the said application. It has become necessary to say that it 'appears' to have been allowed or that it has apparently been allowed because there is no reference to I.A.No.76 of 2008. The opening sentence in paragraph No.10 supra, cannot but be a reference to I.A.No.76 of 2008.
22.Thereafter, a reading of paragraph No.10 would reveal that with regard to I.A.No.29 of 2008, no verdict has been returned.
23.The first appellate Court has not articulated and set out with specificity as to whether the said application ie., I.A.No.29 of 2008, has been allowed or dismissed. However, the lower appellate Court has proceeded to deal with and discuss the two documents which were sought to be marked vide I.A.No.29 of 2008. Even in the discussion, it was pointed out by the learned Counsel for appellants before me that the birth certificate has been wrongly referred to as death certificate. This is the birth certificate, which according to appellants pertain to Thuraichi. This does not appear to be a simple typographical error, as the discussion proceeds on the basis that it is a death certificate, which is clear from the subsequent sentences. As I have extracted entire paragraph No.10 supra, for avoiding repetition and prolixity, I am not restating the same here.
24.Learned Counsel for appellants points out that with regard to an application under Order XLI Rule 27 CPC, if the same is not opposed to and if counter affidavit has not been filed, it only means that the respondents therein is not opposing filing / receiving of the said documents. That would not mean that there is a consent for marking of the documents. In other words, it is his pleading that when a respondent does not file counter in an application under Order XLI Rule 27 CPC, it only means that there is no objection for receiving the documents and it does not mean that there is no objection for marking the document. Elaborating a little further on that, it follows as a necessary sequitur that an application under Order XLI Rule 27 CPC is essentially in two parts. One part is receiving a document and the other is marking the document. If there is no objection for receiving the document, obviously, the document has to be marked in a manner known to law and any document received is subject to proof and relevance. For this purpose a procedure has been laid down in CPC and that is laid down in Rule 28 of Order XLI of CPC.
25.Elaborating further on this, learned Counsel for appellants pressed into service a judgment being N.Ravi and others Vs. S.K. Thirunavukkarasu (died) and others reported in 2015 (2) MWN (Civil) 283. Specific reference was drawn to paragraphs 14, 15 and 16 to say that there should be a separate order with regard to consent for marking of the document. In the light of relevance of the same, I deem it appropriate to extract paragraphs 14, 15 and 16 of N.Ravi's case. I do so and the read as follows:
?14. In K.R.Mohan Reddy vs Net Work Inc. Represented through MD reported in (2007) 14 SCC 257, the Supreme Court made the following observation:
"It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary."
15. Hence the procedure adopted by the lower appellate court to dismiss the application filed under Order XLI Rule 27 CPC without even considering the entire evidence and the appeal on its merits to find out whether the adduction of additional evidence is necessary to enable the lower appellate court to pronounce the judgment or for any other substantial cause. The requirement of hearing the application for adducing additional evidence along with the appeal on merits does not mean that in all cases the order in the application Under Order XLI Rule 27 should be incorporated in the judgment itself. In case, the lower appellate court decides to allow the application, a separate order should be passed and thereafter recording of additional evidence should be made following the procedure contemplated under Order 41 Rule 28 CPC. In case, the lower appellate court, after hearing the application along with the appeal and after considering the entire evidence, comes to the conclusion that the application under Order XLI Rule 27 CPC cannot be allowed, it can incorporate the order with reasons in the judgment itself and proceed with the pronouncement of the judgment.
16. Apart from the said mistake committed by the lower appellate court in hearing the application filed under Order XLI Rule 27 separately and not along with the appeal on merits, learned lower appellate judge has committed a blunder, as it is obvious from the order passed in the said application that there was misconception and nonapplication of mind regarding the nature of the prayer made in the interlocutory application. The prayer made in the said application reads as follows:
"For the reasons set out in the accompanying affidavit, it is prayed that this Hon'ble Court may be pleased to pass order permitting the petitioners/appellants to produce additional evidence oral and documentary which are Patta, Voter IDs and Family cards, Driving License etc. of the petitioners/appellants and pass such further or other orders..."
The order of the lower appellate court proceeds on the erroneous assumption that I.A.No.100/2012 was also for appointment of an Advocate Commissioner to inspect the suit properties and submit a report regarding their physical features. Such a total non-application of mind on the part of the learned lower appellate judge is writ large. Hence the said order dated 06.09.2013 made in I.A.No.100/2012 in A.S.No.18/2012 cannot be sustained and there shall be every justification for interference with it and setting aside the same in exercise of the power of this court under Article 227 of the Constitution of India. The illegality caused by the misconception and the nonapplication of mind cannot be condoned. For the said reason alone, this court comes to the conclusion that the order dated 06.09.2013 dismissing I.A.No.100/2012 in A.S.No.18/2012 on the file of the Sub Court at Tambaraman is liable to be set aside and the said application shall be remitted back to the lower appellate court with a direction to hear it along with the appeal and then take a decision.
In the result, C.R.P.(NPD) No.3728/2013 is dismissed. C.R.P.(NPD) No.3985/2013 is allowed. The order of the Sub Judge, Tambaram dated 06.09.2013 made in I.A.No.100/2012 in A.S.No.18/2012 shall stand set aside. I.A.No.100/2012 is remitted back to the trial court to hear it along with the appeal and then take a decision. It is made clear that the dismissal of the C.R.P.(NPD) No.3728/2013 confirming the dismissal of I.A.No.102/2012 shall not preclude the appellate court from resorting to appointment of a Commissioner at a later stage, if the circumstances so warrant. However, there shall be no order as to cost. Consequently, the connected miscellaneous petitions are closed.?
26.Thereafter, Selvaraj's case reported in 2015-4-L.W. 424 was pressed into service for the principle that recourse to Rule 28 of Order XLI CPC is imperative. In this regard, paragraph 11 of the said judgment was referred to and the same reads as follows:
?11. Of course, the learned lower Appellate Judge has adopted the correct procedure in hearing the application with the Appeal. But it shall not be desirable to incorporate the order allowing such an application in the judgment itself. There cannot be any quarrel over the proposition that, if the Court comes to the conclusion that an application under Order 41 Rule 27 C.P.C deserves to be dismissed, the same can be incorporated in the judgment and the judgment in the appeal on merits may be pronounced. When the Court comes to the conclusion that such an application is to be allowed, the normal procedure is to pass a separate order, follow the procedure for recording additional evidence and thereafter decide the appeal after giving an opportunity to the parties to advance arguments based on the evidence already available and the additional evidence recorded in the appeal. This procedure can be dispensed with under only one circumstance, that is when the parties consent for not only allowing the application but also for marking those documents, without there being any necessity to examine any witness in proof or disproof of such document. In such cases alone, the additional documents can be marked as additional evidence and the Appellate Court can proceed with the pronouncement of the judgment incorporating the order allowing the application under Order 41 Rule 27 C.P.C and also the factum of marking those documents by consent and of hearing the arguments advanced on both sides on the basis of the additional documents also.
27.Thereafter a judgment of the Hon'ble Supreme Court of India being Union of India Vs. K.V.Lakshman and others reported in 2016 (4) CTC 533, was pressed into service for the principle that in taking recourse to Rule 28 of Order XLI CPC, it would always be better to send the matter back to the trial Court. To be noted, K.V.Lakshman's case arose out of a first appeal in contradistinction to the instant case which is a second appeal.
28.The first appellate Court here is still a last Court of facts, being a Court hearing a regular first appeal under Section 96 CPC. Considering the length of time and considering the nature of litigation, there was no disagreement before me that if the ultimate conclusion in this second appeal is with regard to sending the matter to one of the Courts below, it could be the first appellate court. It may not be necessary to delve further into this aspect of the matter. Most importantly, learned Counsel for appellants pointed out that this procedure for marking the document qua additional evidence in an appellate Court is not only imperative, but is also very sacrosanct as there has been further development of law in this regard, to the effect that respondents should also be permitted to let in rebuttal evidence. In support of this contention / proposition, learned Counsel pressed into service Lal Babu Singh's case reported in 2018-3-L.W. 97. The aforesaid principle has been lucidly laid down by the Hon'ble Supreme Court and this is contained in paragraphs 11 to 13 of the said judgment which reads as follows:
?11. Order LXI Rule 27 of the CPC, which deals with the provision of additional evidence in Appellate Court provides for the grounds and circumstances on which the Appellate Court may allow such evidence or documents or witnesses to be examined. Order LXI Rule 27 sub-rule (2) further provides that wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record a reason for its admission. Order LXI Rule 27 is silent as to the procedure to be adopted by the High Court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the Appellate Court to grant opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order LXI Rule 27.
12. One provision, which is part of Order LXI, which also needs to be noted is Order LXI Rule 2, which is as follows:-
2.Grounds which may be taken in appeal.- The appellant shall not, ex-
cept by leave of the court, urge or be heard in support of any ground of objection not set forth in the memo-randum of appeal; but the appellate court, in deciding the appeal, shall not be confined to the grounds of ob- jections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportu- nity of contesting the case on that ground.
13. Order LXI Rule 2 provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order LXI Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence under Order LXI Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence.
In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present appellant and his other co-sharers and what was relied before the High Court was that the appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial Court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lad evidence in rebuttal.
29.However, with regard to the first appellate Court taking up both the aforesaid Interlocutory Applications along with the main first appeal and disposing of the same along with the main appeal, the first appellate Court cannot be faulted. This is owing to the ratio laid down in Ibrahim Uddin's case reported in (2012) 8 SCC 148. Relevant paragraph is paragraph No.49, which reads as follows:
?Stage of Consideration:
49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh reported in AIR 1951 SC 193 and Natha Singh v. Financial Commr., Taxation reported in 48 (1976) 3 SCC 28 : AIR 1976 SC 1053)?
30.However, as paragraphs 50, 51 and 52 of Ibrahim Uddin's case also will be of relevance in the nature of the order I propose to pass, I deem it appropriate to extract the same. The same read as follows:
?50. In Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, it was held:
?.... The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal.
... Under Rule 27, Clause (1)(b), it is only where the appellate Court 'requires' it (i.e. finds it needful). ?? The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ?when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent?, it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified... the power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case? (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128)
51. In Arjan Singh v. Kartar Singh, this Court held:
?7. ... If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent ?.
8. ...The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment?
(Emphasis added)
52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.
31.This takes us to the substantial questions of law.
32.As would be evident from the narrative supra, there are six substantial questions of law. Before I deal with the substantial questions of law, it will be necessary to examine the further scope of this second appeal in the light of the submissions made by learned Counsel before this Court.
33.Learned Counsel for respondents Mr.H.Arumugam, submitted that additional documents which were sought to be marked may not have any great impact on the outcome of the verdict / findings returned by both the Courts below. Reliance was placed on the legal plea turning on Section 34 of the Specific Relief Act, 1963. This Court is unable to agree, as the documents sought to be marked at appellate stage pertain to Thuraichi and the question as to whether Thuraichi is senior wife's daughter may well be a tie breaker in an otherwise evenly balanced tough evidentiary situation in the Courts below in the instant case.
34.In the light of the trajectory of the submissions supra, this Court is of the considered view that this will be a fit case for remand under Order XLI Rule 23-A CPC as all the well established ingredients for remand adumbrated inter alia in Rule 23 of Order XLI of CPC are present in abundance in the instant case. Therefore, I propose to pass an order of remand.
35.As I propose to pass an order of remand, it will suffice if questions of law B and D are answered. Both the learned Counsel very fairly agreed that it will suffice if questions of law B and D are dealt with and answered.
36.Before I proceed with the order further, it may be necessary to make some observation regarding the scope of remand in a second appeal. As alluded to supra, remand in the instant case will be under Order XLI Rule 23 A CPC. A remand under Order XLI Rule 23-A CPC can be made in a second appeal under Section 100 CPC also. Learned Counsel for appellants points out that this is permissible in the light of Rule 1 of Order XLII CPC. Rule 1 of Order XLII CPC mandates that the Rules under Order XLI CPC shall apply so far as may be to appeals against appellate decrees. This instant second appeal is under Section 100 CPC and is obviously against an appellate decree made by an appellate Court. In the light of Order XLII Rule 1 CPC, Order XLI Rule 23-A CPC is available for proceedings under Section 100 CPC also.
37.Reverting to the aforesaid two substantial questions of law, in the light of the discussion regarding Order XLI Rule 27 CPC, its scope as well as the procedure and modality for marking of additional documents about which there is elaboration supra with specific reference to ratios of various judgments which have also been alluded to supra, there is no difficulty in answering substantial question of law B in favour of appellants to the limited extent of saying that this case warrants a remand as the first appellate Court has dealt with order XLI Rule 27 applications in a manner which is not strictly in accordance with the procedure which has been explained and lucidly laid down by the Hon'ble Supreme Court.
38.Further more, the documents have certainly been misread. It may be necessary to have the three documents which were sought to be marked vide the aforesaid two Interlocutory Applications by letting in evidence, permitting cross examination. In the light of the aforesaid Lal Babu Singh's case reported in 2018-3-L.W. 97, it will be necessary to permit rebuttal evidence also by the defendants. As all the three documents essentially pertain to the revenue authorities and local authorities, it may also be necessary to permit the parties at lis to summon the authorities concerned or even take out a subpoena, if it becomes necessary but that shall be only with regard to these three documents. In other words, it shall not be in a manner to expand the scope of the hearing in the Court below beyond these three documents and one other aspect about which this Court shall mention infra.
39.This takes us to substantial question of law D. This substantial question of law does not present any difficulty whatsoever. Ex.B.3., as mentioned supra, is a settlement deed dated 20.03.1972 executed by senior wife in favour of Esakki Muthu (Defendants' father). The Courts below have believed the recital in Ex.B.3, but the issue is, the Courts below have held that the burden of proof that Esakki Muthu was not adopted by the senior wife was on the plaintiffs and that the plaintiffs have not discharged the burden. This is obviously incorrect. The plea of adoption was set up by the defendants and therefore, the burden was on the defendants. In this context, it may be relevant to hold that burden never shifts and it is only onus that shifts. In fact, onus not only shifts but swings like a pendulum from one end of the lis to the other. Therefore, there is no difficulty in answering substantial question of law D by holding that the Courts below definitely were incorrect in placing the burden of proof regarding Ex.B.3 settlement deed, on the plaintiffs, when the same has been pleaded by the defendants.
40.Having answered the aforesaid two substantial questions of law which alone were taken up for disposal of this second appeal by consent, we shall now move on to the remand, about which there is elaboration supra. Owing to the reasons set out supra, this is a fit case for remand as the three documents that were sought to be marked vide two Interlocutory Applications turn heavily on the question as to whether Thuraichi was the daughter of the senior wife. This may be pivotal for clinching the lis between the parties at lis one way or other. Equally, the adoption issue has also been decided by wrongly placing the burden on the plaintiffs and therefore, it may be necessary to revisit the adoption issue in the remand. Therefore, this remand is limited only to two aspects of the matter. One aspect of the matter is marking of the three additional documents vide I.A.Nos.29 and 76 of 2008. The other aspect of the matter is with regard to proof of adoption of Esakki Muthu (defendants' father by the senior wife).
41.As already mentioned supra, with regard to the three additional documents sought to be marked as additional evidence under Order XLI Rule 27 CPC, the parties will be at liberty to summon revenue / local authorities and take out applications for subpoena, if it becomes imperative and if so advised. This explains the limited scope of the remand.
42.Having explained the limited scope of the remand, I proceed to set aside the judgment and decree of the first appellate Court dated 18.11.2008. In the light of the consent that the matter can be remanded to the first appellate court, the same being a Court of facts hearing an appeal under Section 96 CPC, the remand will be to the first appellate Court. There is one more reason as to why the remand is to the first appellate Court. That reason is, the remand turns heavily on Order XLI Rule 27 CPC, which were obviously taken out only in the first appellate Court. For these two reasons, there shall be a remand in the instant case.
43.For the sake of convenience and clarity, the details and scope of remand are set out by way of bullet points infra.
a) It is a limited remand, restricted to two aspects of the matter. One aspect of the matter is the three documents sought to be marked vide I.A.Nos.29 and 76 of 2008. Second aspect is regarding adoption of Esakki Muthu by senior wife.
b) For the purpose of the three documents sought to be marked vide the aforesaid two Interlocutory Applications, oral evidence shall be let in. Oral evidence will include cross examination of the deposing witnesses.
c) In the course of deposition and marking of documents qua the three documents, if necessary revenue / local authorities can be summoned and subpoena applications can be taken out, if it becomes imperative. If so advised and taken out, those applications shall be dealt with on their own merits by the first appellate Court.
d) In the light of the ratio laid down by the Hon'ble Supreme Court in Lal Babu Singh's case reported in 2018-3-L.W. 97, the defendants who are respondents in the instant second appeal and also respondents in the Order XLI Rule 27 Interlocutory Applications (I.A.Nos.29 and 76 of 2008), shall be given an opportunity of rebuttal evidence and it is open to the defendants to utilise the same at their discretion.
e) The question of adoption of Esakki Muthu by senior wife shall be reheard and decided. For this purpose, parties will be permitted to let in oral and documentary evidence. It is made clear that oral and documentary evidence in this regard shall be restricted only to the adoption issue and other extraneous material / deposition shall not be permitted. However, what would be relevant and what would be extraneous material will be at the discretion of the first appellate Court.
f) The first appellate Court, after remand shall not permit amendment of pleadings or prayers under any circumstances.
g) Exercising powers under Rule 26-A of Order XLI of CPC, the date of appearance of the parties before the first appellate Court i.e., I Additional Subordinate Court is being fixed and the same shall be 08.08.2018.
h) From 08.08.2018, first appellate Court i.e., I Additional Subordinate Judge's Court, Tirunelveli, shall decide and dispose of the first appeal in the aforesaid manner within six months therefrom i.e., on or before 08.02.2019.
44.The Second Appeal is disposed of on above terms. Considering the nature of lis and the trajectory of the litigation, coupled with the nature of the hearing today, I am of the view that the parties should be left to bear their respective costs.
Note to Office:
i) Issue Judgment and Decree by 16.07.2018.
ii) After issuing Judgment and Decree by 16.07.2018, Registry to send all lower Court records back to I Additional Subordinate Court, Tirunelveli, forthwith, in such a manner that it reaches the said Court within a fortnight therefrom ie., by 30.07.2018.
To
1.The I Additional Subordinate Judge, Tirunelveli,
2.The Principal District Munsif, Tirunelveli.
3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.
.