Madras High Court
Pappannan vs Kolandasamy on 10 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.09.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.212 of 2005
1. Pappannan
2. Ramasamy
3. Nanjammal
4. Palaniappan
5. Ramakkal ... Appellants
vs.
Kolandasamy ... Respondent
This second appeal is filed against the judgment and decree dated 15.09.2004 passed by the learned Principal Subordinate Judge, Gobichettipalayam in A.S.No.19 of 2004 in reversing the judgment and decree dated 31.03.2004 passed by the learned District Munsif, Sathyamangalam in O.S.No.238 of 1998.
For Appellants : Mr.N.Manokaran
For Respondent : Mr.R.T.Doraisamy
JUDGMENT
This second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 15.09.2004 passed by the learned Principal Subordinate Judge, Gobichettipalayam in A.S.No.19 of 2004 in reversing the judgment and decree dated 31.03.2004 passed by the learned District Munsif, Sathyamangalam in O.S.No.238 of 1998.
2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court.
3. Heard both sides.
4. A summation and summarisation of the facts absolutely necessary and germane for the disposal of this second appeal would run thus:
a] The respondent-Kolandasamy herein, who happened to be the plaintiff, filed the suit seeking the following reliefs:
To pass a decree
(i) to declare the plaintiff's title to the suit properties.
(ii) consequentially to direct the defendants 1 to 5 to vacate and deliver possession of the item (i) to (v) of the suit properties respectively to the plaintiff within a time to be fixed by this Court and the defendants default to do the same through the process of this court.
(iii) to grant a mandatory injunction against the first defendant directing him to remove the constructions effected in the item (I) of the suit property within a time to be fixed by this court and in default to do the same by the first defendant, through the process of this court and
(iv) for costs.
(extracted as such) on the main ground that he purchased a vast extent of land where of the suit property forms a part vide the original sale deed dated 18.03.1993 [Ex.A1 is the photocopy of it]; that thereafter the defendants with the permission of the plaintiff entered into possession of the five moities in the said larger extent purchased by the plaintiff.
b] Whereas the defendants filed the written statement, challenging and impugning the averments as found set out in the plaint.
c] The trial court framed the relevant issues.
d] During trial, the plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A9. D1 to D3 examined themselves as D.Ws.1 to 3 along with DW4 and DW5 and marked Exs.B1 to B9 and the Court documents Exs.C1 to C4 were also marked.
e) Ultimately, the trial court dismissed the suit by rendering a finding that the defendants acquired title by prescription and hence the plaintiff was not entitled to get the suit decreed.
f) Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiff preferred appeal; whereupon the first appellate court, set aside the judgment and decree of the trial court and rendered a finding that the lower court committed error in holding that the defendants acquired prescriptive title over the suit property and accordingly decreed the suit.
g] Challenging and impugning the judgment and decree of the first appellate court, the defendants have preferred this second appeal on various grounds.
5. My learned predecessor framed the following substantial questions of law:
(a) When the plaintiff's positive case that the defendants are in permissive occupation fails and in the face of the evidence brought to the notice of the court by the defendants in particular reference to Ex.B3 and other documents, has not the lower appellate court committed an error of law in non-suiting the plaintiff on the ground of the defendants perfecting title by adverse possession?
(b) Is not the judgment of the lower appellate court vitiated in law, though it finds that there is a dispute regarding the property forming the subject matter of the suit?
(extracted as such)
6. At the hearing, this court thought it fit to formulate the following additional substantial questions of law to the knowledge of both sides.
ADDITIONAL SUBSTANTIAL QUESTIONS OF LAW:
1. Whether the judgment of the first appellate court is vitiated for want of formulation of proper points for consideration as per Order 41, Rule 31 of the Code of Civil Procedure?
2. Whether the first appellate court was justified in reversing the judgment and decree of the trial court without adverting to reasons to disagree with the findings of the trial court point by point?
3. Whether the first appellate court was justified in simply accepting Ex.A1 the photocopy of the original sale deed dated 18.03.1993 without insisting for production of the antecedent title deeds and also revenue records to show that the plaintiff's predecessor-in-title was in possession and enjoyment of the suit properties and following them, the plaintiff started enjoying the properties?
7. Both sides advanced their arguments on the substantial questions of law framed by my learned predecessor as well as the additional substantial questions of law, framed by me.
8. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
9. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL
(iv) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
......................................................................
22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24) "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or action on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."
It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interfering by the High Court under Section 100 of the Code of Civil Procedure would not arise.
10. The learned counsel for the appellants/defendants would cite the following decisions of the Hon'ble Apex Court and certain excerpts from those decisions would run thus:
(i) (2001) 3 SCC 179 [Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs.].
"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing 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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary9). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai10) The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh11) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
(ii) (2011) 3 SCC 545 [Parimal vs. Veena alias Bharti] "24. The appellate court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order 43 Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order 41 shall apply, so far as may be, to appeals from orders. In view of the fact that no amendment by the Delhi High Court in exercise of its power under Section 122 CPC has been brought to our notice, the procedure prescribed under Order 41 Rule 31 CPC had to be applied in this case.
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. (Vide Moran Mar Basselios Catholicos v. Mar Poulose Athanasius20, Sukhpal Singh v. Kalyan Singh21, Santosh Hazari v. Purushottam Tiwari22, Madhukar v. Sangram23, G. Amalorpavam v. R.C. Diocese of Madurai24, Shiv Kumar Sharma v. Santosh Kumari25 and Gannmani Anasuya v. Parvatini Amarendra Chowdhary26.)
26. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order 41 Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh v. H.V. Sreenivasa Murthy27.)"
(emphasis supplied) A plain reading of the aforesaid decisions of the Hon'ble Apex Court and applying the dicta found enunciated therein, would display and demonstrate that the first appellate court herein while passing the judgment had virtually given a go-by to the established norms relating to the duty of the appellate court, in disposing of the appeal and that too while rendering the reversal judgment.
11. In para No.11 of the judgment of the first appellate court, one could notice a few discussions relating to the defect in the defendants' case relating to the plea of adverse possession.
12. Fair and square, the learned counsel for the defendants would submit that the first appellate court took it for gospel truth the title of the plaintiff based on Ex.A1, the photo copy of the sale deed, which was of recent origin, so to say, the one emerged hardly five years anterior to the filing of the suit as the one establishing conclusively the title of the plaintiff and that too when in fact, the plaintiff himself as PW1 candidly and categorically admitted the falsity of his case to the effect that the defendants even before, he having purchased the suit property had been in occupation and enjoyment of the suit property.
13. It is the precise case of the plaintiff in the plaint that after he having purchased the suit property, the defendants entered into possession of it as permissive occupiers and raised constructions. It is therefore, just and necessary to extract the relevant portion of the cause of action para in the plaint:
"8. The cause of action for the suit arose on 18.3.1993 when the plaintiff had purchased the suit property, subsequent permission to the defendants to occupy the suit properties respectively, about two months ago when the 1st defendant had started to put up constructions in the item (I) of the suit properties, on 31.7.1998 when the defendnats 2 to 5 have refused to vacate item 2 to 5 of the suit properties, situate at Varadampalayam village, Sathyamangalam Taluk within the jurisdiction of this Honourable Court."
(extracted as such) (emphasis supplied also) It is also just and necessary to extract the relevant portion in the cross examination of PW1:
@ ehd; fpiuak; th';Fk; nghJ jhth brhj;Jf;fs; te;j fhiyapy; mike;Js;sJ vd;W bjhpahJ/ ehd; fpiuak; bgw;w nghJ gpujpthjpfs; FoapUe;J te;jJ vd;Dila fhiy vz;zpy; jhd; vd;W bjhpe;J th';fpndd;/ ehd; fpiuak; th';fpa nghJ fpiuak; th';fpath;fsplj;jpy; ,e;j gpujpthjpfis mg;g[wg;gLj;jpf; bfhLf;FkhW nfl;ftpy;iy/ ehd; fpiuak; bgw;w gpd;g[[ tHf;F nghLk; tiu gpujpthjpfis jhth brhj;jpypUe;J fhyp bra;a ve;jtpj mwptpg;g[k; bfhLf;ftpy;iy/ mij nfl;ft[k; ,y;iy/@ (extracted as such) (underlined by me) As such, the cause of action para in the plaint and the plaintiff's (PW1) deposition do not go hand in hand and they do not hang together, but antithetical to each other.
14. Placing reliance on the said defect in the plaintiff's case, the learned counsel for the defendants would pyramid his argument to the effect that the first appellate court should have dismissed the appeal confirming the judgment and decree of the trial court as a litigant is not expected to approach the court with unclean hands.
15. Whereas the learned counsel for the respondent/plaintiff would submit that simply because, there was one stray answer to the question during the cross examination by PW1 that the defendants had been in possession and enjoyment of the suit property even before the plaintiff having purchased the same as per Ex.A1, that it does not mean that the paramount title holder viz., the plaintiff should be non-suited on that ground. As such, the first appellate court, taking into account the pros and cons of the matter and also the falsity of the case of the defendants in their plea of adverse possession decreed the suit.
16. He would also proceed to develop his argument by pointing out that no sooner the defendants took up the plea that they acquired title by adverse possession, then it amounts to they having impliedly recognised the title of the plaintiff and hence the first appellate court was justified in decreeing the suit after setting aside the judgment and decree of the trial court, which warrants no interference in the second appeal.
17. I recollect the maxim - falsus in uno, falsus in omnibus false in one thing, false in everything. This is not the maxim, which is recognised in India and in the meantime, I cannot lose sight of one other maxim Allegans contraria non est audiendus A person making contradictory allegations is not to be heard and also the decision of the Hon'ble Apex Court reported in (2012) 5 MLJ 618 (SC) [A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam rep.by its President etc.]. Certain excerpts from it would run thus:
"False and irrelevant pleas:
41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs.
42. On the facts of the present case, following principles emerge:
1. It is the bounden duty of the court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law Court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the Court should in addition to full restitution impose appropriate costs. The Court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. ........"
A mere perusal of the Hon'ble Apex Court's judgment would reveal that the plaintiff who approaches the court with false averments has to be non-suited. However, I do not, as of now, in the facts and circumstances of this case, hold that merely because there is prevaricative stance on the part of plaintiff in view of his versions in the cause of action para and the answer given by him as PW1 during cross-examination, he should be holus bolus non-suited.
18. These facts should have been necessarily considered by the first appellate court, which has not even chosen to insist upon the production of at least the certified copy of the sale deed Ex.A1, even though the lower court without any demur simply allowed Ex.A1- the photocopy of the sale deed to be marked. In this connection, I would like to refer to the decision of the Hon'ble Apex Court reported in (2011) 4 SCC 240 [H.Siddiqui (dead) by L.Rs. vs. A.Ramalingam] cited by the learned counsel for the defendants:
"20. The High Court failed to realise that it was deciding the first appeal and that it had to be decided strictly in adherence with the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of the alleged power of attorney was also raised as is evident from Point (a) formulated by the High Court, the Court should not have proceeded to Point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.
Order 41 Rule 31 CPC
21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh7, Girijanandini Devi v. Bijendra Narain Choudhary8, G. Amalorpavam v. R.C. Diocese of Madurai9, Shiv Kumar Sharma v. Santosh Kumari10 and Gannmani Anasuya v. Parvatini Amarendra Chowdhary11.)
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy12, while dealing with the issue, this Court held as under: (SCC p. 531, para 4) 4. 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 is therein open for rehearing 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 Tiwari13, SCC p. 188, para 15 and Madhukar v. Sangram14, SCC p. 758, para 5.) I would suo motu like to refer to one other decision of the Hon'ble Apex Court reported in (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
Once a document, which is basically defective has been wrongly entertained and if it is against law, at any stage, its admissibility can be questioned. The first appellate court, having chosen to reverse the judgment and decree of the trial court should have dealt with all these aspects point by point.
19. Indubitably and indisputably, the suit was filed during the year 1998; whereas Ex.A1 would indicate that only during the year 1993, so to say, scarcely five years anterior to the filing of the suit, the original of Ex.A1 emerged. As such, by no stretch of imagination, it could be described or labelled as an ancient document. The plaintiff was enjoined to produce antecedent title deed to his sale deed along with the revenue records to demonstrate and display that his vendor was in effective possession and enjoyment of the suit property as title holder and that had become all the more important when the defendants questioned the title of the plaintiff and raised the plea of adverse possession.
20. At this juncture, I would like to dispel any wrong notion in this regard. There is no authority on the point that once the defendant raises the plea of adverse possession, the plaintiff is automatically relieved of his burden to prove his title on the assumption that the defendants should be deemed to have admitted the title of the plaintiff.
21. I recollect and call up the following maxims:
(i) Affirmantis est probare [He who affirms must prove]
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
It is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. If the view of the learned counsel for the plaintiff is accepted, then in a title suit, no sooner the defendants file the written statement pleading adverse possession, straightaway the defendants can be directed to enter into the box and prove their case. But this is not the law on that point. The initial burden of proof in cases of this nature is only on the plaintiff, who should enter into the box and prove his title positively as has been already highlighted supra.
22. There could be no denying of the fact that the original of Ex.A1 itself is only five years' old as on the date of the filing of the suit and in such a case, the antecedent title deed coupled with the revenue records in the name of his vendor should have been filed, but it was not done so.
23. If at all the plaintiff succeeds in establishing his title by producing such clinching evidence, then it can be taken that the burden of proof got shifted from the plaintiff's side to the defendants' side and the defendants had to prove positively, their plea of adverse possession. However, the first appellate court started picking holes in the case of the defendants without expecting the plaintiff to prove his case. Wherefore, it is glaringly and pellucidly, palpably and axiomatically clear that the first appellate court erroneously decided the appeal.
24. The first appellate court also has not taken into consideration the prevaricative stance of the plaintiff. In the plaint as has been pointed above, he would plead that the defendants started occupying the suit property only after the plaintiff having purchased the suit property, whereas his case was otherwise during trial. There is topsy-turvedom in the plea of the plaintiff relating to detailing and delineating as to when actually the defendants commenced occupying the suit property and in what capacity.
25. On this point also, the first appellate court was expected to concentrate and render its finding based on precedents; but that was not done so. In that view of the matter also, the decision of the first appellate court cannot be countenanced and upheld as the one sustainable in the eye of law.
26. The first appellate court should have framed proper points for consideration as per Order 41 Rule 31 of the Code of Civil Procedure; but that was not done so.
27. The learned counsel for the plaintiff would submit that if such a standard is rigorously and in stricto sensu applied then none of the first appellate court's judgments can be held to be in order in the present day context.
28. Be that as it may; so far as this case is concerned, there are lot of complications; had the first appellate court, adhered to Order 41 Rule 31 of the Code of Civil Procedure, certainly it would have dealt with all aspects of the matter. The principle, which got embodied in Order 41 Rule 31 of the Code of Civil Procedure is not an empty formality. It is only for the purpose of enabling the court to ensure proper approach to the entire appeal. Had the first appellate court formulated various points for consideration under various sub heads, then this mistake would not have been crept in. Wherefore, so far this case is concerned, the first appellate court's approach in not framing proper points for consideration resulted in failure of justice and it failed to discuss point by point in reversing the judgment of the trial court.
29. The learned counsel for the defendants, inviting the attention of this court to Exs.B1 to B9 would advance his argument that the first appellate court failed to take note of those exhibits in proper perspective. Whereas the learned counsel for the plaintiff would submit that there is nothing to indicate and connote that those documents are in any way connected with the suit property. There is no gainsaying that in this matter the principles stood exemplified and enunciated in the Hon'ble Apex Court decisions in (i) (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others) and (ii) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] should be adhered to.
30. Once again this is a matter of evidence and both sides should have addressed themselves to all those details and the first appellate court should have considered the relevancy of Exs.B1 to B9 with reference to the description of the suit property.
31. Not to put too fine a point on it, I am of the considered view that the judgment of the first appellate court is far from satisfactory, which cannot be confirmed. However, I cannot agree with the contention of the learned counsel for the defendants that the plaintiff's case should be disbelieved in toto as he failed to avail the opportunity earlier. It is not an open and shut case so as to throw the case of the plaintiff. Meanwhile, the case of the defendants also cannot be labelled as a basket case. Without understanding the weight of the matter, the first appellate court dealt with the matter.
32. The role of the Judges is of paramount importance, which is found highlighted in the following decisions of the Hon'ble Apex Court.
(i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] Certain excerpts from it would run thus:
"36. In Ritesh Tiwari and another vs. State of Uttar Pradesh and others,2010(10) SCC 677, this court reproduced often quoted quotation which reads as under:
"Every trial is voyage of discovery in which truth is the quest".
37. This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB 55 has observed that:
"In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries."
39. Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest." In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
51. In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth."
(ii) 2010(10) SCC 677 [Ritesh Tiwari and another vs. State of Uttar Pradesh and others]. Certain excerpts from it would run thus:
"37. Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. "Every trial is voyage of discovery in which truth is the quest". Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and Zahira Habibulla H.Sheikh vs. State of Gujarat].
The dictum as found displayed and enunciated in those decisions are to the effect that every trial is a voyage of discovery, in which the truth is the quest.
33. Scarcely, could it be stated that the first appellate court adhered to such a principle. Hence, I would like to set aside the judgment and decree of the first appellate court and the matter is remitted back to the first appellate court with the mandate that both sides should be given opportunity to file additional oral and documentary evidence to substantiate their respective cases and the first appellate court shall do well to see that the matter is disposed of within a period of four months from the date of receipt of a copy of this order. Both sides shall appear before the first appellate court on 10.10.2012.
34. In the result,
(a) The substantial question of law No.1 is decided to the effect that the lower appellate court committed an error in decreeing the suit for the reasons set out supra.
(b) The substantial question of law No.2 is decided to the effect that the judgment of the lower appellate court stood vitiated as per law.
(c) The additional substantial question of law No.1 is decided to the effect that the judgment of the first appellate court is vitiated for want of formulation of proper points for consideration as per Order 41 Rule 31 of the Code of Civil Procedure.
(d) The additional substantial question of law No.2 is decided to the effect that the first appellate court was not justified in reversing the judgment and decree of the trial court without assigning reasons to disagree with the findings of the trial court point by point.
(e) The additional substantial question of law No.3 is decided to the effect that the first appellate court was not justified in accepting Ex.A1 the photocopy of the original sale deed dated 18.03.1993 without insisting for production of the antecedent title deed and also other records to indicate that the plaintiff's predecessor was in possession and enjoyment of the suit properties and following him, the plaintiff started enjoying the properties.
35. On hearing the judgment pronounced, the learned counsel for the defendants/appellants would shed light on the fact that for matters of this nature, the first appellate court is the Sub Court, Sathyamangalam. Hence, the Registry is directed to sent the records concerned to the aforesaid court for dealing with the matter as mandated supra.
36. Accordingly, this second appeal is allowed. However, there shall be no order as to costs.
vj2 To
1. The Subordinate Judge, Gobichettipalayam
2. The District Munsif, Sathyamangalam