Madras High Court
P.Saroja vs Balu (Father'S Name Not Known To The ... on 23 August, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.07.2022
Pronounced on : 23.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.Nos. 865 & 866 of 2002
And
C.M.P.No. 6751 of 2002
And
C.M.P.No. 166 of 2012
S.A.No. 865 of 2002
P.Saroja ... Plaintiff/Appellant/Appellant
Vs.
1. Balu (father's name not known to the appellant)
2. Malar
3. Saravanan (died )
4. S.Santhi
5. S.Sirvasankari
6. Ganesh @ Manikandan ... Defendants/Respondents/Respondents
https://www.mhc.tn.gov.in/judis
2
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree dated 17.10.2001 in
A.S.No. 40 of 2001 before the Additional District Court, Pondicherry,
preferred against the Judgment and Decree dated 26.03.2001 in O.S.No.
84 of 1999 on the file of the II Additional District Munsif's Court,
Pondicherry.
S.A.No. 866 of 2002
P.Saroja ... Plaintiff/Appellant/Appellant
Vs.
1. Balu
2. Malar
3. Elumalai
4. Saravanan (died )
5. S.Santhi
6. S.Sirvasankari
7. Ganesh @ Manikandan ... Defendants/Respondents/Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree dated 17.10.2001 in
A.S.No. 52 of 2001 before the Additional District Court, Pondicherry,
preferred against the Judgment and Decree dated 26.03.2001 in O.S.No.
132 of 1998 on the file of the II Additional District Munsif's Court,
Pondicherry.
***
https://www.mhc.tn.gov.in/judis
3
For Appellant in
both S.As. : Ms. Nilaphar
For RR 1, 2 & 4 in
both S.A. No.865/2002
RR 1 & 2 in S.A.
No.866/2002 : Mr. P.Jotheswaran
For 3rd Respondent in
S.A.No. 865/2002 &
4th Respondent in
S.A.No. 866/2002 : died
COMMON JUDGMENT
The plaintiff P.Saroja in O.S.No. 132 of 1998 on the file of the II Additional District Munsif Court, Pondicherry, is the appellant in S.A.No. 866 of 2002.
2. The said O.S.No. 132 of 1998 has been filed seeking permanent injunction restraining the defendants therein, namely, the respondents herein, Balu, Malar, Elumalai and Saravanan, from raising any construction in the suit schedule property and for costs of the suit. https://www.mhc.tn.gov.in/judis 4
3. The same plaintiff P.Saroja also filed O.S.No.84 of 1999 again before the II Additional District Munsif Court at Pondicherry, seeking declaration of title and directing the defendants to handover vacant possession of the suit property free of any structure and for costs.
4. The property under dispute was said to be situated in R.S.No. 77/2, Cad No. 1506 and it was stated that the first and second defendants, Balu and Malar had put up a hut in that area measuring 20 ft x 12 ft and the third defendant Saravanan had put up a hut measuring 15 ft x 25 ft and that this property was within the larger area of 1200 sq.ft., of land and building claimed by the plaintiff to be belonging to her and situated in R.S.No. 77/2 Cad No. 1506, Saram, Uzavar Kalai Pondicherry. Since both the suits related to the same property and filed by the same plaintiffs, who sought reliefs against the same defendants, joint trial was conducted in both the suits.
5. By common Judgment dated 26.03.2001, the Second Additional District Munsif, Pondicherry, dismissed both the suits. https://www.mhc.tn.gov.in/judis 5
6. The plaintiff then filed A.S.No. 40 of 2001 questioning the dismissal of O.S.No. 84 of 1999 and filed A.S.No. 52 of 2001 questioning the dismissal of O.S.No. 132 of 1998. Both the Appeal Suits came up for consideration before the Additional District Court at Pondicherry and by common Judgment dated 17.10.2001, both the Appeal Suits were dismissed.
7. This has necessitated the plaintiff to file the present Second Appeals. Both the Second Appeals had been admitted on the following two substantia1 questions of law:-
“i) whether in law the Courts below are right in arriving at a perverse finding of fact with regard to the identity of the suit property warranting interference under Section 100 CPC and as held in AIR 2001 SC 1275?;
ii) Whether in law the Courts below are right in overlooking that the appellant's https://www.mhc.tn.gov.in/judis 6 title was traced through Exs. A-1 and A.2 registered sale deeds, the respondents had not produced any evidence to show the basis of their occupation?”
8. Pending the Second Appeals, the 3rd defendant/3rd respondent in S.A.No. 865 of 2002, Saravanan died and his legal representatives were brought on record as 4th to 6th respondents. He was the 4th respondent in S.A.No. 866 of 2002 and consequently, his legal representatives were brought on record as 5th to 7th respondents in S.A.No. 866 of 2002.
9. The appellant in S.A.No. 866 of 2002 also filed C.M.P.No. 6751 of 2002 under Order 26 Rule 9 Civil Procedure Code to appoint an Advocate Commissioner to inspect the suit schedule property and note down its location and physical features and to submit a report.
10. It was the case of the appellant P.Saroja that she was the absolute owner of the property measuring 1,200 sq.ft., in R.S.No. 77/2, Cad No. 1506 in Saram, Uzavar Kalai in Pondicherry and that the defendants Balu and his wife Malar and Elumalai and Saravanan had https://www.mhc.tn.gov.in/judis 7 encroached upon a portion of the said property and had put up huts detrimental to her interest.
11. She claimed that she had purchased the property from Ellappa Gounder on 31.03.1983 by a registered sale deed. Since there was a mistake in the Survey number and in the Cad number given in the schedule of the property, a rectification deed was executed on 15.02.1985.
12. She claimed that the defendants encroached into the property and she therefore filed O.S.No. 1073 of 1995. However, that suit was not pursued further since the schedule of the property had been wrongly mentioned. It was dismissed for default.
13. Thereafter, the defendants put up constructions and this necessitated her to file O.S.No. 132 of 1998 for permanent injunction restraining them from putting up any construction.
14. She then filed O.S.No. 84 of 1999 for declaration of title and https://www.mhc.tn.gov.in/judis 8 for recovery of possession.
15. She claimed that one of the defendant Elumalai handed over possession of the portion encroached by him, accepting her title.
16. She claimed that in O.S.No. 132 of 1998, an Advocate Commissioner had also been appointed, who noted down the physical features.
17. The defendants filed written statement in both the suits. They contended that the plaintiff had deliberately not taken any steps to restore O.S.No. 1073 of 1995. They claimed to have been in possession for considerable number of years. The 3rd defendant Saravanan claimed that his grandmother Virudhambal was originally in possession and had put up a hut in R.S.No. 77/1 and the other defendants also put up constructions. They claimed that the property is poromboke land. They claimed that the plaintiff was claiming right over R.S.No. 77/2 but was residing in R.S.No. 77/1. They further claimed that even in the plaint, the plaintiff had described their property as situated to the North of her https://www.mhc.tn.gov.in/judis 9 property. They also claimed that the plaintiff had not produced the prior title deed of the suit property and if that had been produced, it can be determined how a wrong survey number and a wrong Cad number had been given in the title deed of the plaintiff. They stated that both the suits should be dismissed.
18. The trial Court framed necessary issues for trial particularly whether the plaintiff was the absolute owner of the suit property and also whether the property under the possession of the defendants was part of the larger property claimed by the plaintiff and also relating to the mistakes in the survey number and Cad number in the sale deed in favour of the plaintiff.
19. During trial, the plaintiff examined herself as PW-1 and her Vendor Ellappan as PW-2 and one more witness as PW-3. The third defendant examined himself as DW-1 and the second defendant was examined as DW-2. The Advocate Commissioner was examined as CW- 1. https://www.mhc.tn.gov.in/judis 10
20. The plaintiff marked Exs. A-1 to A-3. Ex.A-1 was the sale deed in favour of the plaintiff dated 31.03.1983. Ex.A-2 was the copy of the rectification deed dated 15.02.1985 and Ex.A-3 was the encumbrance certificate for the property.
21. The defendants marked Exs. B-1 and B-2, the House Tax Receipts, Exs. B-3 to B-5, the voters registration cards and Exs. B-6 to B-9, the family ration card of the defendants.
22. The Commissioner Report and rough sketch were marked as Exs. C-1 and C-2.
23. The authorisation letter given by the Tahsildar and the chitta prepared by the Deputy Tahsildar Taluk Office, Pondicherry were marked as Exs. X1 and X2.
24. On the basis of the pleadings and the oral and documentary evidence adduced, the learned Second Additional District Munsif, Pondicherry observed that the survey number and Cad number in Ex.A-1 https://www.mhc.tn.gov.in/judis 11 sale deed in favour of the plaintiff was given as 184/18 and 2010 respectively. This was contrasted with the suit schedule property which was in S.No. 77/2 and with Cad No. 1506. It was observed stated that PW-2, Vendor had stated during his evidence that he did not recollect having executed any rectification deed. It was also pointed that the original rectification deed was not produced but only a certified copy was produced. It was also pointed out that the prior sale deed executed by Devados Gandhi to Ellappan / PW-2 was not produced though PW-2 stated that he had handed over the same to the plaintiff. It was also pointed out that the huts put up by the defendants were to the North of the property of the plaintiff and not within the property of the plaintiff. It was also pointed out that the plaintiff had filed an earlier suit in O.S.No. 1073 of 1995 but had abandoned the same claiming that the description of the property had been wrongly given. Pointing out all the above discrepancies in the case of the plaintiff in both the suits, the suits were dismissed.
25. This necessitated the plaintiff to file two separate first appeals in A.S.No. 40 of 2001 and A.S.No.52 of 2001. Both the Appeal suits https://www.mhc.tn.gov.in/judis 12 came up for consideration before the Additional District Court, Pondicherry. By Common Judgment dated 17.10.2001, the learned First Appellate Judge again reappraised the evidence available and found that the learned trial Court had correctly pointed out the difference in the survey number and Cad number as found in Ex.A-1 and as given in the Schedule of the property in the plaint. It was also pointed out that Ex.A- 2 was only a copy of the rectification deed and no reason had been given as to why the original had not been produced. This fact was correlated with the statement of PW-2 Ellappan, who claimed that he did not remember having executed any rectification deed. It was also pointed out that the earlier sale deed executed by Devados Gandhi in favour of Ellappan had not been produced though PW-2 stated that he had handed over the same to the plaintiff. It was thus held that the appellant/plaintiff had not come to Court with clean hands and had not stated the correct facts before the Court and therefore, both the Appeal Suits were dismissed and the findings of the trial Court were upheld.
26. The plaintiff then filed the present two Second Appeals. Pending the Second Appeals, the plaintiff filed C.M.P.No. 6751 of 2001 https://www.mhc.tn.gov.in/judis 13 in S.A.No. 866 of 2002 seeking appointment of an Advocate Commissioner under Order 26 Rule 9 Civil Procedure Code.
27. In the affidavit filed in support of the petition, it had been stated that the respondents/defendants are taking efforts to sell the property. It was also stated that both the suits were dismissed on a finding with respect to identity of the A and B schedule properties as given in the plaint. It was therefore stated that a fresh Commissioner should inspect the property.
28. In the affidavit, the reason why the Commissioner, who had been appointed before the trial Court had not been asked to measure the suit property had not been mentioned. It is trite in law to point out that a second Advocate Commissioner can be appointed only if it is found that the report of the earlier Advocate Commissioner suffers from some material facts or is ambiguous in nature or not executed as per order of the Court. None of these reasons have been pointed out in the affidavit. There is also no request made to scrap the earlier report of the Advocate Commissioner. It must also be pointed out that the Advocate Commissioner originally appointed had also been examined as a witness and if at all, he had not discharged the warrant as per the order of the https://www.mhc.tn.gov.in/judis 14 Court, that fact should have been pointed out during his cross examination.
29. In 1986 1 MLJ 319 [K.Vishwanathan Vs. D.Shanmugam Mudaliar and Another], it has held as follows:-
“.....under O. 26, R. 10(2), C.P.C the report of the Commissioner is evidence in the suit and forms part of the records. The report of the Commissioner has therefore evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot be set at naught by scrapping the report. The effect of scrapping the report is that the report which is evidence in the case and part of the record ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according to the defendant were important does not mean that the whole report should be scrapped. Adequate provision to safeguard the interest of the parties concerned is made in sub-rule (3) of O. 26, R. 10, C.P.C” https://www.mhc.tn.gov.in/judis 15
30. In the instant case, in the affidavit filed, the appellant had not pleaded that the report of the Advocate Commissioner already appointed suffers owing to failure to discharge the warrant in accordance with the order of the Court. Therefore, without further discussion, I would dismiss C.M.P.No. 6751 of 2002.
31. The two substantia1 questions of law revolve around Exs. A-1 sale deed and A-2 rectification deed in both of which the identity of the suit property had been variedly given.
32. The appellant herein had come to Court claiming that she is the owner of the property measuring 1,200 sq.ft., in R.S.No. 77/2, Cad number 1506, Saram, Uzavar Kalai Pondicherry. She claimed that the defendants had encroached and built huts measuring 20 x 12 sq.ft., and 15 x 25 sq.ft., respectively in the said property. However, in the description given with respect to the area encroached by the defendants, the southern boundary is given as the larger area of 1,200 sq.ft. This https://www.mhc.tn.gov.in/judis 16 itself very clearly establishes that the huts of the respondents are to the North of the property of the plaintiff.
33. The title deed of the appellant, Ex.A-1 is not with respect to R.S.No. 77/2, but with respect to R.S.No. 184 of 80. It is also not with respect to Cad No. 1506 but with respect to Cad No. 2010. Thus, the appellant cannot claim any right, title or interest over the suit schedule property on the basis of Ex.A-1.
34. It is claimed by the appellant that she purchased the suit property under Ex.A-1 from PW-2 Ellappan. It is the contention of PW-2 Ellappan that he had handed over to the appellant the prior title deed executed by Devados Gandhi. However, that document had not been produced. Naturally a presumption under illustration 'g' of Section 114 can be straight away drawn adverse to the appellant for not producing the said document.
35. The burden of proof is only on the appellant to establish that she is the owner of R.S.No. 77/2 and Cad No. 1506. As a matter of fact, PW-2 Ellappan, in his evidence stated that he does not remember https://www.mhc.tn.gov.in/judis 17 executing Ex.A-2 rectification deed. The original of Ex.A-2 had not been produced. This raises a strong suspicion that the said document, particularly the sale deed executed by the Devados Gandhi and the original of Ex.A-2 have not been produced only because if they are produced, they would speak adverse to the interest of the appellant herein.
36. In (2011) 12 SCC 220 [ Rangammal Vs. Kuppuswami and Another], the Hon'ble Supreme Court had held as follows:-
“21. Section 101 of the Indian Evidence Act, 1872 defines `burden of proof' which clearly lays down that:
101. Burden of Proof.- whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the https://www.mhc.tn.gov.in/judis 18 burden of proof lies on that person.
Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts.
Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden.
Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. ”
37. In (2012) 8 SCC 148 [ Union of India Vs. Ibrahim Uddin and Another], the Hon'ble Supreme Court had held as follows in paragraph No. 12 is as follows:-
“Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material https://www.mhc.tn.gov.in/judis 19 evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence.
(Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126). ”
38. It is also seen that both the Courts below had, on the basis of the evidence adduced, come to a concurrent conclusion of the fact that the appellant had not produced necessary documents to establish title and had produced a document which relates to a different survey number https://www.mhc.tn.gov.in/judis 20 and a different Cad number and had produced a rectification deed, which is not the original and on all these grounds had dismissed the suit of the appellant. This concurrent findings of the fact cannot be said to be perverse.
39. In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris- Un-Niswan, (1999) 6 SCC 343, it was held as follows by the Hon’ble Supreme Court :
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
https://www.mhc.tn.gov.in/judis 21 “13. In Ramanuja Naidu v. V. Kanniah Naidu [(1996) 3 SCC 392] this Court held:
“It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.” “14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166] this Court held:
“Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same https://www.mhc.tn.gov.in/judis 22 evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” “15. And again in Secy., Taliparamba Education Society v.
Moothedath Mallisseri Illath M.N. [(1997) 4 SCC 484] this Court held:
“The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.””
40. In State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637, the Hon’ble Supreme Court held as follows :
“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and https://www.mhc.tn.gov.in/judis 23 lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)”
41. In view of the above reasons and the binding precedents, I hold that the appellant has unfortunately failed to establish that the Judgments of the Courts below require to be interfered by this Court.
The Second Appeals have no merits and accordingly, they are dismissed.
42. In the result:-
i ) The Second Appeals are dismissed with costs;
ii) The Judgment and Decree in A.S.Nos. 40 & 52 of 2001 dated 17.10.2001 /Additional District Court, Pondicherry, are confirmed;
iii) The Judgment and Decree in O.S.Nos. 132 of 1998 and O.S.No. 84 of 1999 dated 26.03.2001 on the file of II Additional District https://www.mhc.tn.gov.in/judis 24 Munsif Court, Pondicherry are confirmed;
C.V.KARTHIKEYAN, J.
vsg
iv) C.M.P.No. 6751 of 2002 is dismissed; and
v) Connected Miscellaneous Petition is closed.
23.08.2022 Index :Yes/No Internet:Yes/No vsg To
1. Additional District Court, Pondicherry.
2. II Additional District Munsif Court, Pondicherry.
Pre-Delivery Judgment made in S.A.Nos. 865 & 866 of 2002 And C.M.P.No. 6751 of 2002 And C.M.P.No. 166 of 2012 https://www.mhc.tn.gov.in/judis 25 https://www.mhc.tn.gov.in/judis