Madras High Court
Koorikilavan vs Gurusamy on 31 October, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.(MD)No.1345 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
04.01.2023 12.01.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD)No.1345 of 2008
1.Koorikilavan, S/o.Sathiah
2.Kannan [Died], S/o.Sathiah
3.Gandhimathi, W/o.Balakrishnan
4.Susila, W/o.Naganathan
5.Uma, W/o.Mani
6.Thenmozhi, W/o.Sathiah
7.K.Thenmozhi, W/o.Late Kannan ... Appellants
[R7 is brought on record as Legal Heir of the
deceased R2, vide order dated 31.10.2019,
made in C.M.P.(MD)Nos.9704 to 9706/2018]
vs.
1.Gurusamy, S/o.Sundaram
2.Rakkammal, W/o.Marikkannu
3.Annalakshmi, W/o.Mangalanathan
4.Murugan, S/o.Sundaram
5.Mangaleswari, W/o.Saminathan
6.Savithiri, W/o.Sundaram
7.Kala, W/o.Vellaisamy
8.Nilavalagan, S/o.Sundaram ... Respondents
Prayer :- Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
C.P.C., against the judgment and decree passed in A.S.No.66 of 2007, on the file of
the Sub-Court, Ramanathapuram, dated 28.02.2008, reversing the judgment and
decree of the District Munsif Court, Ramanathapuram, in O.S.No.631 of 1993, dated
20.06.2007.
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C.M.A.(MD)No.1345 of 2008
For Appellants : Mr.K.Mahendran
For Respondents 1, 3, 4, 5 & 8 : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed by the defendants being aggrieved by the order of the lower Appellate Court, setting aside the judgment of the trial Court, dismissing the suit and remanding the suit for re-hearing on the ground that the impugned judgment of the trial Court is short of complete justice.
2. The facts of the case are as follows:-
(i) The suit property was purchased by the plaintiffs from one Rajendran, prescribing the respective boundaries on all four sides. A residential building measuring an extent of 27 human feet on the east west and 50 human feet on the south north has been constructed in the said property. On the northern side of the house, 2 human feet south west and 27 human feet east west space are left as lane for maintenance of the Wall. Next to the lane, on the east, 15 ½ human feet east west and 52 human feet south north land lying vacant as backyard of the house. The lane is shown as Item No.1 and the backyard is shown as Item No.2 in the suit schedule.
The husband of the first defendant, who is alleged to have purchased the land north of Item No.1 and east of Item No.2, encroached upon Item Nos.1 and 2 of the property by using men power. On 01.10.1993 the first plaintiff has started https://www.mhc.tn.gov.in/judis 2/13 C.M.A.(MD)No.1345 of 2008 construction in it. When that was objected, the first plaintiff using his men power, has expedited the construction and tried to obstruct and occupy Item No.2 of the property. Hence, the suit in O.S.No.631 of 1993 on the file of the District Munsif Court, Ramanathapuram, for declaration that the suit Item Nos.1 and 2 belong to the plaintiffs and mandatory injunction for demolishing the building in the encroached portion and permanent injunction restraining the defendant, his men and agents from interfering with the peaceful possession of the suit schedule property.
(ii) The first defendant has contested the suit by filing written statement alleging that the plaintiffs' claim over the suit property through sale deed, dated 28.04.1966, is false. They have no right of title derived through the said sale deed executed by one Rajendran Vagaiyara. In fact, the property described in the Sketch is not the true description of the land. There is no land left out on the northern side of the plaintiffs' house. It is an imagination that the land mentioned in Item No.1 exists in the field. Similarly, the claim that the existence of vacant backyard measuring 15 ½ x 52 human feet is also incorrect. The defendants, on their own, derived title over the property and have been enjoying the same by putting up construction. The allegation of encroachment into the plaintiffs' land is false. In fact, properties in possession of the plaintiffs and the defendants were originally held by Muniyandi Servai, which was purchased by him under the sale deed, dated 10.09.1942. It is his ancestral property. The husband of the first defendant purchased the property from one Chandran, S/o.Muniyandi Servai on 31.01.1950. In https://www.mhc.tn.gov.in/judis 3/13 C.M.A.(MD)No.1345 of 2008 the said land, the first defendant and prior to that, her vendor had constructed a house and cattle shed, occupying and enjoying the same. Most of the land on the eastern side and on the northern side of the plaintiffs are in possession of the defendants. The defendants have constructed a building in Item No.2 of the property and the same is about to be completed. By fabricating the documents, the plaintiffs tried to occupy the land of the defendants and causing disturbance to the peaceful enjoyment. Since the suit is filed suppressing the fact, the same has to be dismissed.
(iii) The trial Court, on considering the pleadings, has formulated the following issues:-
(1) Whether the plaintiffs are entitled to declaration and possession as prayed for?
(2) Whether the defendants have any right in the suit property? (3) Whether the defendants are entitled to a decree of permanent injunction against the plaintiffs?; and (4) What other reliefs the plaintiffs are entitled to?
(iv) To prove their respective claim, on behalf of the plaintiffs, two witnesses were examined and four exhibits were marked. On the side of the defendants, one witness was examined and two exhibits were marked. The Advocate Commissioner's Report and Sketch were marked as Exs.C.1 and C.2.
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(v) Ex.A.1 is the sale deed through which the plaintiffs trace their title. In this sale deed, the schedule of the property describes about common lane on two sides of the property. The title deed, dated 31.01.1950, which is marked as Ex.B.2 is relied by the defendants to say that nothing beyond the house of the plaintiffs is available as vacant site or lane for the plaintiffs.
(vi) The trial Court appointed a Commissioner to note down the physical features and he, on inspection of the spot, prepared a Report [Ex.C.1] and Sketch [Ex.C.2].
(vii) The trial Court, taking into consideration the document of title, the Advocate Commissioner's Report and Sketch and the ocular evidence of the respective parties, has held that as per Ex.A.1, the property within the boundary described in the deed alone, had been conveyed. Further, the trial Court found that the claim of the defendants that they have right over Item Nos.1 and 2 of the property has not been proved or supported by the documents relied on by them also not supported by the report of the Advocate Commissioner, dismissed the suit holding that though there is a lane on the northern side of the plaintiffs' property, there is no clear evidence through title document to establish who is in possession of the property. While so, the failure of the plaintiffs to prove right over the lane, disentitles them from getting the relief of mandatory injunction to remove the construction put up in the suit property.
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(viii) Referring the description of the property as found in Ex.B.2 particularly, the boundaries, the trial Court rejected the claim of the defendants that Item No.2 of the property in the schedule is not in existence and the area has been in possession of them as per the title deed when compared with Exs.C.1 and C.2, held that it appears that the cattle shed mentioned in the Advocate Commissioner's report and marked in Sketch is in existence for more than 20 years and enjoyed by the defendants. Insofar as that portion, the trial Court has held that the plaintiffs have not sought for any relief of possession and that the plaintiffs have not proved the case of title and possession and therefore, dismissed the suit.
(ix) Aggrieved by that, the first appeal is preferred by the plaintiffs.
(x) The lower Appellate Court, after considering the evidence and the documents relied on by the parties and comparing the boundaries found in respective title deeds, has observed that the trial Court has rejected the claim of the plaintiffs holding that they were not able to establish that their vendors had title over 42 human feet east west and 52 human feet north south. Since the lis involves a delicate issues of title based on the boundaries as found in the old document only through effective correlation and comparative evidence, the issue can be decided. As there is lapse on either side in adducing evidence on the aspect of the boundary, the matter has to be remanded back for re-hearing. Claiming exercising the power under Section 151 C.P.C., besides the power under Order 21, 23 and 23-A, the lower Appellate Court remanded the matter back to the trial Court and has formulated the https://www.mhc.tn.gov.in/judis 6/13 C.M.A.(MD)No.1345 of 2008 point for consideration by the trial Court including permitted the party to let in additional evidence oral as well as documentary correlating the boundaries in their respective title deeds.
3. The said order of remand is challenged by the defendants in the present Civil Miscellaneous Appeal on the specific ground that the lower Appellate Court erred in remanding the matter back while the plaintiffs who had instituted the suit were not able to establish the right to seek declaration of title and injunction and have not filed any application to frame any additional issues or to receive any additional documents by invoking Order XLI Rule 23 or 23-A or 25 C.P.C. However, the lower Appellate Court has ordered remand of the suit, which has been dismissed by the trial Court for want of proof. The power under Order XLI C.P.C. to remand the matter back cannot be used to fill up the lacuane.
4. Heard the learned counsel for the appellant and perused the material on record.
5. The relief of declaration of title, mandatory injunction and permanent injunction has been sought in the plaint. However, the trial Court on considering the title document, which is marked as Ex.A.1 and comparing the boundaries mentioned in Exs.B.1 and B.2, had dismissed the suit for want of proof regarding the title. https://www.mhc.tn.gov.in/judis 7/13 C.M.A.(MD)No.1345 of 2008 Except re-canvassing the evidence already adduced, no further input has been placed by the plaintiffs in their appeal. However, the lower Appellate Court, after considering the fact that the boundaries found in the document do not correlate with the existing physical features as noted by the Advocate Commissioner, has remanded the matter back for re-hearing.
6. It is settled principle of law that the plaintiffs, who plead title over the property have to stand or fall on their own legs. As far as this case is concerned, the plaintiffs herein have relied on one document, which is Ex.A.1 to assert their title. That apart, the tax receipts are relied, which are only in respect of the house. In spite of the documents relied on by the defendants, which are marked as Exs.B.1 and B.2, providing the boundaries of their respective properties and the Advocate Commissioner's Report, which explains the actual physical feature, the lower Appellate Court, instead of appreciating the evidence available and rendering judgment, had set at naught the judgment of the trial Court for no reason and ordered remand the case for re-trial, enabling the parties to re-agitate the case afresh including filing of new documents and introduction of evidence, both oral and documentary. This Court has no second opinion that such a right to the appellate Court is not contemplated under Order XLI Rules 23 or 23-A or 25 C.P.C. or even under Section 151 C.P.C., which enable the losing party to fill up the lacunae and project new facts with a new case without being hit by res judicata. https://www.mhc.tn.gov.in/judis 8/13 C.M.A.(MD)No.1345 of 2008
7. The patent error of improper exercise of jurisdiction of lower appellate Court could be very well seen from the direction given by the lower appellate Court while remanding the suit back for re-trial. To appreciate the above observation, the direction given by the lower Appellate Court is extracted as below:-
''Point (b)
(i) The impugned judgment and decree is set aside;
and the original suit is remanded for re-hearing on the following conditions:-
(a) The suit be re-admitted to file under its original number, retaining the evidence already on record.
(b) The parties may let in additional evidence, oral as well as documentary, clarifying, correlating the boundaries in their respective title deeds.
(c) The learned trial Judge may re-issue warrant to the same Commissioner, if felt necessary, for his findings on the areas the impugned judgment pinpoints.
(d) The learned trial Judge shall attempt to find out the extent of the properties on earth as on today from the facts discovered through the commission and evidence, specific instructions may in this regard, be given to the commission.''
8. The scope and jurisdiction of the appellate Court in the matter of remand is governed by Rules 23, 23A, 24 and 25 of Order XLI of C.P.C. The said Rules are extracted below for the sake of convenience.
''23. Remand of case by appellate court.—Where the https://www.mhc.tn.gov.in/judis 9/13 C.M.A.(MD)No.1345 of 2008 Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23-A. Remand in other cases.— Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under Rule 23.
24. Where evidence on record sufficient, appellate court may determine case finally.—Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. https://www.mhc.tn.gov.in/judis 10/13 C.M.A.(MD)No.1345 of 2008
25. Where appellate court may frame issues and refer them for trial to Court whose decree appealed from.— Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time.''
9. It is not the case where the trial Court has disposed the suit on preliminary point, where Order XLI Rule 23 or 25 C.P.C. will apply. It is case where the suit is dismissed otherwise than a preliminary point after full trial and after framing relevant issues. In such a case, there must be strong reason to order re-trial. Because, the plaintiffs have failed to prove the boundaries of their property through document, a second chance cannot be given to the plaintiffs by remanding the matter back for re-trial. There is no iota of acceptable reason for remand and every material is available for the lower Appellate Court to decide the case on merits with available evidence adduced by the respective parties. The lower Appellate Court observing https://www.mhc.tn.gov.in/judis 11/13 C.M.A.(MD)No.1345 of 2008 that there is no clarity in the boundaries, has remanded back to the trial Court for re- trial. If the plaintiff has no clarity in his case, his case is bound to be dismissed. He cannot be afforded with an opportunity to cure the inherent defect and to re-agitate the litigation.
10. Hence, the order of the lower Appellate Court is set aside. The matter is remanded back to the lower Appellate Court to decide the case on merits from the available evidence let in by the parties. Accordingly, this Civil Miscellaneous Appeal is allowed. No costs.
NCC : Yes / No 12.01.2023
Index : Yes / No
Internet : Yes / No
smn2
To
1.The Deputy Commissioner of Labour
(Commissioner for Workmen Compensation),
Tirunelveli – 2.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.1345 of 2008
DR.G.JAYACHANDRAN, J.
smn2
PRE-DELIVERY JUDGMENT MADE IN
C.M.A.(MD)No.1345 of 2008
DATED : 12.01.2023
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