Madras High Court
Kumarasamy vs Rajkumar ... 1St on 24 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A(MD)No.209 of 2008 and M.P(MD)No.1 of 2008 Kumarasamy ... Appellant/1st Respondent/ Plaintiff Vs. 1.Rajkumar ... 1st Respondent/Appellant/ 6th Defendant 2.Thangakaniammal 3.Ravikumar 4.Jeyakumar 5.Rajeshkumar 6.Arumugaperumal 7.Rajamuthammal 8.Paulkani 9.Lakshmi 10.Nambikani ... Respondents 2 to 10/ Respondents 2 to 10/ Defendants 1 to 5, 7 to 10 Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 22.12.2006 made in A.S.No.192 of 2006 on the file of the I Additional Sub Judge, Tirunelveli, in reversing the judgment and decree dated 25.04.2005 made in O.S.No.94 of 2000 on the file of the Principal District Munsif cum Judicial Magistrate, Nanguneri. !For Appellant ... Mr.P.Senthurpandian ^For Respondents... Mr.M.Sidharthan for Ms.J.Anandhavalli for R.1 Mr.Mohammed Ibrahim Shahib for Mr.A.Arumugam for R.7 to R.10. R.2 to R.6 - No appearance * * * * * :JUDGMENT
This second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 22.12.2006 made in A.S.No.192 of 2006 on the file of the I Additional Sub Judge, Tirunelveli, in reversing the judgment and decree dated 25.04.2005 made in O.S.No.94 of 2000 on the file of the Principal District Munsif cum Judicial Magistrate, Nanguneri.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary for the disposal of this second appeal would run thus:
The plaintiff filed the suit for partition of the properties described in the schedule of the plaint and for allotment of his 1/3rd share.
4. The defendants 1 to 4 filed the written statement resisting the suit by contending that the various family properties including the suit property were partitioned and as such, there is no question of partitioning the suit property once again would arise.
5. The fifth defendant did not file any written statement resisting the suit.
6. The sixth defendant being the purchaser of a portion of the suit property from the fifth defendant, filed the written statement in commensurate with the written statement filed by the defendants 1 to 4. During the pendency of the suit, the defendants 7 to 10, the daughters of the deceased Ramanarayanaperumal who was the brother of the plaintiff got themselves impleaded and they filed the written statement supporting contention of the plaintiff.
7. Whereupon the trial Court framed the relevant issues.
8. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.9 were marked on his side. When the matter was posted for the defendants' side, it appears that the chief-examination affidavit of the fourth defendant - Rajeshkumar was filed, but he did not submit himself for cross-examination. Whereupon the defendants' side was closed and as such, neither oral nor documentary evidence was let in on the side of the defendants.
9. Ultimately, the trial Court decreed the suit ordering the partition of the suit property and granting 1/3rd share in it to the plaintiff, as against which the sixth defendant alone filed the appeal. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and dismissed the original suit.
10. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the present second appeal has been filed by the plaintiff on various grounds and also suggesting the following substantial questions of law:
"(A) Whether the Judgment of the 1st Appellate Court is against sec.10 of the Evidence Act, since patta for the suit properties stand in the name of all co-owners including the plaintiff and no separate patta is made out individually for the parties concerned?
(B) Whether the Judgment of the 1st Appellate Court holding that the suit properties were orally partitioned is based on inadmissible evidence and hence perverse especially when patta for the suit properties is still joint? (C) When the plaintiff alleges that some properties were partitioned and some properties are not partitioned on whom the burden of proof lies, especially when there is mutation of names in respect of first mentioned properties alone? (D) When there is complete variance between the pleadings of D.W.1 and his oral evidence whether 1st Appellate Court is legally right in allowing the appeal especially when the appellant in the 1st Appeal did not examine himself as witness and when D.W.1 though a defendant did not prefer any 1st Appeal?"
(extracted as such.)
11. My learned Predecessor framed the following substantial question of law:
"Whether the judgment and decree of the lower Court is perverse on account of its failure to consider the legal position that the patta obtained by one co- owner is deemed to be for the entire co-owners?"
(extracted as such.)
12. The dictum laid down by the Honourable Apex Court in the following decisions:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1;
would be to the effect that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
13. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
14. Keeping in mind the aforesaid dictum, I heard both sides and after hearing them, I have decided to reframe the substantial question of law as under:
"Whether the first appellate Court was justified in placing reliance on one sentence in the middle of the cross-examination of P.W.1 as though there was admission that there had been already partition of the suit property and in reversing the judgment and decree of the trial Court?"
15. Pithily and precisely, the arguments as put forth by the learned Counsel for the plaintiff could be set out thus:
The trial Court placing reliance on Ex.A.3 - the representation given by the co-sharers and also Ex.A.2 - the joint patta and also the deposition of the witnesses, ordered for partition. However, the first appellate Court of its own accord, picked and chose a stray sentence in the cross-examination of P.W.1 and simply reversed the judgment and decree of the trial Court on the sole ground that P.W.1 during his cross-examination allegedly admitted that there had been already oral partition of the suit property, which the trial Court allegedly failed to take note of it. Trite, the proposition of law is that no Court is expected to cull out a sentence from the deposition of a witness and simply by placing reliance on it, decide the lis. Accordingly, he would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court.
16. Per contra, in a bid to shoot down and mince meat, pulverise and torpedo the contentions as put forth and set forth by the learned Counsel for the plaintiff, the learned Counsel for the sixth defendant would pilot his arguments, the nub and essence, the pith and marrow, the gist and kernel of it, would run thusly:
The first appellate Court appropriately and appositely, correctly and convincingly, after going through the entire evidence and also the admission made by P.W.1 during his cross-examination relating to the suit property having been partitioned, held that the case of the plaintiff was not believable and accordingly, set aside the judgment and decree of the trial Court, warranting no interference in second appeal. The original suit is also bad for want of adding some of the legal heirs of the deceased Easwaramoorthy @ Mookkan and to that effect, P.W.1 himself admitted the defect. Accordingly, he would pray for the dismissal of this second appeal in toto.
17. The learned Counsel for the defendants 7 to 10 would support the cause of the plaintiff.
18. My mind is redolent and reminiscent of the garden or common principle that the entire deposition has to be read for understanding the testimony of a witness.
19. A mere poring over and bare perusal of the decisions cited supra would unambiguously and unequivocally, pellucidly and palpably, glaringly and plainly, highlight and spotlight, indicate and drive home the point that the Courts are not expected to read a few sentences in isolation in the depositions and jump to a conclusion in deciding the lis. The entire deposition should be read in order to understand and infer, realise and grasp as to what the witness has deposed before the Court. No witness or no litigant should be caught unaware. The trial proceedings should not be converted into a trench for trapping the unwary people; per contra, the trial should be a journey in quest of unearthing truth and reality involved in the case concerned.
20. The first appellate Court diligently and continuously bearing in mind Order XLI Rule 31 of the Code of Civil Procedure, should have dealt with the matter. In this connection, I would like to refer to the decisions of the Honourable Apex Court thus:
(i) Parimal v. Veena reported in (2011) 3 SCC 545. An excerpt from it, would run thus:
"25. Order 41 Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance with the said provisions. The first appellate court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts."
(ii) B.V.Nagesh and another v. H.V.Sreenivasa Murthy reported in JT 2010 (10) SC 551. An excerpt from it, would run thus:
"4.1 The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re- hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari v. Purushottam Tiwari [JT 2001(2) SC 407 : 2001 (3) SCC 179] and Madhukar and Others v. Sangram and Others [2001(4) SCC 756].
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate Court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
21. A bare perusal of the above decision would clearly indicate and exemplify, denote and connote that in stricto sensu, the first appellate Court being the last Court of facts, should deal with the oral and documentary evidence in extenso once again and wherever the first appellate Court disagrees with the findings of the trial Court, valid reasons should be furnished.
22. Here, the first appellate Court has not even framed the relevant points for consideration for adjudication. I would like to reproduce hereunder the paragraph 13 of the judgment of the first appellate Court:
"13. Point for consideration:
1. It is true that the suit property was not partitioned among the sharers while the other properties belonging to Arumuga Perumal Nadar were orally partitioned earlier?
2. Whether the Judgement and Decree of the trial court is in accordance with law?"
(extracted as such)
23. A plain reading of it would reveal that nowhere in the points for consideration, the alleged admission of P.W.1 is found referred to as the subject matter of contention. However, in the body of the judgment, one could come across that the first appellate Court mainly relied upon the stray sentence of P.W.1 in his cross-examination, which the first appellate Court labelled and dubbed it as admission.
24. I would like to extract hereunder the relevant portion of the deposition of P.W.1 and that too, during cross-examination:
"........ ne;j tHf;F brhj;J jtpu BtW brhj;Jf;fSf;F vA;fSf;Fs; jhth fpilahJ. ne;j tHf;fpw;F Kd;Bg vd; jfg;gdhh;f;F ghj;jpag;gl;l brhj;Jf;fis ghfk; gphpj;Jtpl;Blhk;. ........
....... vd; mg;ghtpd; vy;yh brhj;Jf;fisa[k; ghfk; gphpj;Jf;bfhz;Blhk; vd;Wk; ne;j xU brhj;ij khl;Lk; ghfk; gphpf;ftpy;iy vd;W tHf;fpw;fhf bgha; brhy;fpBwd; vd;why; rhpay;y. ......." (extracted as such)
25. Accordingly, if viewed, it is crystal clear that even after such stray sentence alleged to be the admission relating to the oral partition of the suit property by P.W.1, there is a suggestion just a few lines thereafter, put to him, for which P.W.1 would categorically deny and disagree that there was an oral partition relating to the suit property. In such a case, I am at a loss to understand as to how the first appellate Court ignored the later portion of the cross-examination, but clung on to earlier stray sentence of P.W.1 during his cross-examination which the first appellate Court treated as admission.
26. The learned Counsel for the plaintiff would vehemently contend that P.W.1 - the plaintiff, with an intention to admit, did not state any such things and his deposition was recorded not in the same tenor in which he deposed. When this Court raised a query as to why during the re-examination, the matter was not got clarified or disambiguated, he would hasten to add that no importance was given to that stray sentence before the trial Court. Holus bolus, the first appellate Court of its own accord read the deposition of P.W.1 and gave undue importance to that stray sentence and decided the lis warranting interference in second appeal.
27. I could see considerable force in the submission of the learned Counsel for the plaintiff. The first appellate Court should not have of its own picked and chosen such a stray sentence and treated it as an admission. In this connection, I would like to refer to the decision in C.Koteswara Rao v. C.Subbarao reported in AIR 1971 SUPREME COURT 1542. An excerpt from it, is extracted hereunder for ready reference:
"5. We shall now proceed to consider the true effect of the statement made by the appellant. In his chief-examination, he specifically stated:
"The lands purchased in my name under Exh.B-3 to seven are my own property. Since then I have been paying taxes on them under Exhs.B-59 and 60 receipt books. The lease deeds for those lands are Exs.B-61 to 66 besides Exhs.B-14, 15, 17 to 20."
6. From this statement, it is clear that he had put forward a positive case that the lands in question are his separate properties. In the course of his cross-examination it was elicited from him:
"Under Ex.B-6 the consideration was paid by my father. I do not know how he got it."
7. This admission must be read along with the evidence given by him in his chief-examination. Soon after he made that statement, he also stated:
"From the time I took the sale deed Exh.B-6, I was paying taxes. I filed those tax receipts in a separate book for my personal properties. My father was paying taxes on family lands, separate from my lands."
8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on his behalf and the consideration for the same was paid by his father from out of the appellant's private funds that were in the hands of his father. Hence we are unable to agree with the High Court that the appellant had admitted that the properties covered by Ex.B-6 were the acquisitions of his father."
28. As such, it is clear that in the wake of the aforesaid dictum, even by phantasmagorial thoughts, that stray sentence can never be treated as admission on the part of the plaintiff - P.W.1, during trial.
29. On the side of the defendants, not even a single witness was examined. After filing the chief-examination affidavit of the fourth defendant, he had not chosen to submit himself for cross-examination. In such a case, the legal effect of the cited chief-examination affidavit of Rajeshkumar - the fourth defendant, was 'Nil' and it has legally got eshewed. As such, there is no documentary or oral evidence on the side of the defendants 1 to 6, even though they resisted the suit with their specific plea of oral partition.
30. It is a run of the mill proposition that in a partition suit, the plaintiff is the defendant and vice versa. Wherefore, the defendants who pleaded oral partition, ought to have entered into the box and deposed so as to buttress and fortify their contentions in the written statement, but they did not do so. It is not enough to lay the narrations on with a trowel in the written statement, but the defendants should prove it. The versions in the written statement cannot be taken for gospel truth in deciding the lis. Virtually, so far this case is concerned, it has to be taken as of now, that the defendants had not at all contested the matter in stricto sensu during trial. A mere filing of the written statement cannot be taken as the one resisting the suit. Onus probandi is ambulatory. There is no smidgeon or miniscule evidence adduced on the defendants' side to establish and demonstrate their plea of oral partition. Hence, I would like to recollect the following decisions of the Honourable Apex Court:
(i) Vidhyadhar v. Manikrao and another reported in (1999) 3 Supreme Court Cases 573. Certain excerpts from it, would run thus:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property.
.....
21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the land lord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.
22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2.
23. The findings of fact concurrently recorded by the trial Court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."
(ii) Man Kaur (Dead) by Lrs. V. Hartar Singh Sangha reported in (2010) 10 Supreme Court cases 512. Certain excerpts from it, would run thusly:
"14. In Vidhyadhar v. Manikrao this Court reiterated the following well- recognised legal position: (SCC pp. 583-84, para 17) "17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct?."
15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the power-of- attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
* * *
17. ? In Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain. It was held that the word 'acts' used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC. * * *
21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri followed and reiterated in Ram Prasad is the correct view." (emphasis supplied)
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
...
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
31. It is, therefore, crystal clear that there is a serious setback and drawback on the part of the defendants in contesting the matter. The sixth defendant for whom the learned Counsel is appearing and arguing the matter, could not also justify as to why the sixth defendant shunned the witness box even though he filed a separate written statement in resisting the suit. The sixth defendant is not a pendente lite purchaser, but even before the filing of the suit, he purchased a part of the suit property. In such a case, he is having a right to put forth and set forth by adducing evidence and he ought to have entered into the box and deposed in support of his contention, but without doing so, virtually he is having, in the peculiar facts and circumstances, no case to argue in this second appeal.
32. Accordingly, the substantial question of law is answered to the effect that the first appellate Court was not justified in placing reliance on one sentence in the middle of the cross-examination of P.W.1 as though there was admission that there had been already partition of the suit property and in reversing the judgment and decree of the trial Court.
33. In this factual matrix, I am of the considered view that the judgments and the decrees of both the Courts below should necessarily be set aside and accordingly, are set aside and the matter is remitted back to the trial Court with the following directions:
(i) The plaintiff is expected to take steps to implead the left out legal heirs of the deceased Easwaramoorthy @ Mookkan, if any details are furnished relating to them;
(ii) The plaintiff is also expected to clarify his position by recalling himself as P.W.1, whereupon the defendants could cross-examine him further;
(iii) The trial Court shall make all endeavours to see that the matter is disposed of within a period of six months from the date of receipt of a copy of this judgment;
(iv) The trial Court is expected to deal with the matter untrammelled and uninfluenced by any of the observations made by this Court on merits relating to the disposal of this second appeal; and
(v) The parties shall appear before the trial Court on 19.12.2011.
Consequently, the connected Miscellaneous Petition is closed. No costs.
rsb To
1.The I Additional Sub Judge, Tirunelveli.
2.The Principal District Munsif cum Judicial Magistrate, Nanguneri.