Madras High Court
A.Veerabaghu vs Mookandi (Died) on 30 August, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1278 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 14.08.2019
Judgment Pronounced on : 30.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.1278 of 2001
and
C.M.P(MD).No.7008 of 2001
A.Veerabaghu .. Appellant / Appellant / Plaintiff
Vs.
1.Mookandi (Died) .. Respondent / Respondent /
Defendant
2.Sankaravadivu
3.Venkatakrishnan
4.Subbulakshmi
5.Muthuselvi
6.Kalyani
7.Vasanthi .. Respondents 2 to 7
[R2 to R7 are brought on record
as LRs of the deceased sole
respondent, vide order, dated
20.04.2018 made in M.P.Nos.1 to
1/22
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S.A.No.1278 of 2001
3 of 2008 in S.A.No.1278 of 2001
by MSJ]
PRAYER: Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree, dated 29.09.2019, passed in
A.S.No.14 of 1999, on the file of the II-Additional District Judge,
Tirunelveli, confirming the Judgment and Decree, dated 29.10.1998
passed in O.S.No.756 of 1990, on the file of the I-Additional District
Munsif, Tirunelveli.
For Appellants : Mr.M.Senguvijay
For Respondents : Mr. S.Kumar
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No.756 of 1996 on the file of the I-Additional District Munsif, Tirunelveli, and in A.S.No.14 of 1999 on the file of the II-Additional District Judge, Tirunelveli, the appellant, who is the plaintiff in the suit has preferred this second appeal.
2. Before the trial Court, the appellant/plaintiff filed a suit and seeking the relief of declaration declaring that the suit first item of the property is the absolute property of the plaintiff. Further, he has prayed to direct the defendants for removing the basement put up by 2/22 http://www.judis.nic.in S.A.No.1278 of 2001 the defendants by way of mandatory injunction and for costs.
3. The learned I-Additional District Munsif, Tirunelveli, by Judgment and Decree, dated 29.10.1998, dismissed the suit with costs. Aggrieved over the said findings, the appellant preferred an appeal before the II-Additional District Judge, Tirunelveli, in A.S.No. 14 of 1999. The learned II-Additional District Juge, after elaborate enquiry, came to the conclusion that interference is not necessary in the judgment rendered by the trial Court, ultimately, he dismissed the appeal filed by the appellant/plaintiff. Feeling aggrieved over the same, the plaintiff is before this Court with the present second appeal.
4. For the sake of convenience, the parties are referred to as, as described before the Courts below.
5. The averments made in the plaint in brief are as follows:
Originally, the suit property belongs to one Fathima Beevi vide sale deed, dated 19.10.1974, the plaintiff purchased the suit property from the above referred Fathima Beevi. Eversince from the date of purchase, the plaintiff is in possession and enjoyment of the suit property. In fact, in earlier, the said Fathima Beevi is having the land 3/22 http://www.judis.nic.in S.A.No.1278 of 2001 measuring an extent of 81 cents. She had divided the same into flats and sold the plot No.4 to the plaintiff. For the land purchased by the plaintiff and the land owning by his vendor, only one patta number was issued as patta No.28. After made purchase, the plaintiff paid Government dues. In the meantime, on 04.08.1996, when the plaintiff had seen that there was a basement found in his property to the height of 1 ½ feet, and when the same was questioned with the neighbouring plot owner, namely, Mohammed Kasim, the plaintiff came to know that the defendant has put up the foundation stone. The construction made by the defendant is described as the second schedule of the suit property in the plaint. For the easy understanding of the suit property, a rough sketch in respect to the suit property is produced by the plaintiff, in which the suit property was mentioned as ABCD. After made purchase, the plaintiff left out a pathway to the width of 5 feet in the eastern side of his property. Similarly, the person, who purchased the neighboring property, has also left 5 feet width for pathway. Ultimately, on the eastern side of the suit property, there was a pathway in the width of 10 feet. Since the defendant unlawfully constructed the basement in the year of 1996, the plaintiff filed a suit.
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6. The averments made in the written statement filed by the defendant are as follows:
The defendant did not know the purchase made by the plaintiff. The Survey No.110/7 is having the total extent of 1 acre 62 cents in which the property to an extent of 81 cents belongs to the vendor of the plaintiff Fathima Beevi. From the above, on 08.12.1986, one Mohammed Pitchai purchased 56 cents in the south-west portion. Further, he purchased 4 cents in Survey No.110/7. Accordingly, the said Mohamed Pitchai Ravuthar is having 60 cents with the following boundaries:
“(1) the four boundaries of the land to the extent of 56 cents situated in the south-west portion of 1 Acre 62 cents comprised in Survey No.110/7:
North : the Punja land having by one Mohammed Sukkur and one Hajee M.Fathima Beevi in Survey No.110/7. East : sound-east common pathway in Survey No.110/7 South : street West : Punjai compound wall of one Madasamy Chettiar in Survey No.110/6.
“(2) the four boundaries of the land to the extent of 4 cents situated in the centre portion of 1 Acre 62 cents comprised in Survey No.110/7:
5/22 http://www.judis.nic.in S.A.No.1278 of 2001 North : the Punja land having by one Pa.Tha.Si.Ni.Dhatha Beer Mohammed Hayad Kalanthar Ravuthar.
East : sound-east common pathway in Survey No.110/7 South : the Punja land having by one Mohammed Sukkur and one Hajee M.Fathima Beevi in Survey No.110/7. West : Punjai compound wall of one Madasamy Chettiar in Survey No.110/6.” (6.1) From the above, in 60 cents, the plaintiff or his vendor, Fathima Beevi is not having any right to partition the same as plots. The said Mohamed Pitchai purchased the property of 60 cents through valid sale deeds. Only in the boundary between the property of Iyyappa Thevar and the defendant, a basement was erected by the defendant. The so called plot No.4 belongs to Mohammed Pitchai and the same was sold out by the Mohammed Pitchai Ravuthar to one Mohaideen. The defendant is the owner of Plot Nos.2 and 3 and in the area, in which the basement was constructed, the plaintiff is not having any right and title. Further, the plaintiff is not having any right and title over the plot Nos.2 and 3. It is absolutely false to state that the defendant constructed the basement on 04.08.1996. The plaintiff never asked the defendant to remove the basement. There was a common land, which is situated on the eastern side of the property 6/22 http://www.judis.nic.in S.A.No.1278 of 2001 having by the defendant. Accordingly, the plaintiff is not entitled any relief of declaration and injunction.
7. Based on the above pleadings, the learned I-Additional District Munsif, Tirunelveli, framed necessary issues and tried the suit.
8. Before the trial Court, on the side of the plaintiff, two witnesses were examined as PWs.1 and 2, 4 documents were marked as Ex.A1 to Ex.A4. On the side of the defendants, two witnesses were examined as DWs.1 and 2, further 4 documents were marked as Ex.B1 to Ex.B4.
9. Having considered all the materials placed before him, the learned I-Additional District Munsif, Tirunelveli, has come to the conclusion that the plaintiff has not proved the title and thereby he dismissed the suit.
10. In the appeal, the learned II-Additional District Judge, Tirunelveli, has also confirmed the conclusion arrived at by the learned District Munsif, Tirunelveli, and dismissed the appeal. Aggrieved over the same, the plaintiff is before this Court with this 7/22 http://www.judis.nic.in S.A.No.1278 of 2001 second appeal.
11. At the time of admitting the appeal, this Court has formulated the following Substantial Questions of Law for consideration:
“Whether the Courts below erred in law and misdirected themselves in losing sight of the basic rule that when both the parties let in evidence, the burden of proof pales into insignificance?
2. Whether Ex.A-1, Sale Deed, which is prior in point of time to the alleged purchase by the contesting respondents by 13 years confers valid title and whether the appellant has valid title?”
12. Pending appeal, the appellant/petitioner filed an application under Order 41 Rule 27 C.P.C., for receiving additional evidence. Along with the application he enclosed the certified copy of the 4 sale deeds by stating that those documents are very much necessary for proving his case.
13. The averments made in the affidavit filed in support of the petition filed under Order 41 Rule 27 C.P.C., are as follows: 8/22
http://www.judis.nic.in S.A.No.1278 of 2001 The petitioner/plaintiff claiming his property based on the agreement Ex.A1 executed by one Fathima Beevi, on 19.04.1974, whereas the respondent claims to have purchased the same property on 06.07.1987, which is 13 years after Ex.A1. The boundary recitals found in the title deeds of the plaintiff's adjacent land owners mentioned about the name of the plaintiff long before 1987. The said documents are not traced at the time of trial and now only, the same was traced by the plaintiff. At the time of trial, the plaintiff thought that Ex.A1, which is the deed stands in the name of the plaintiff is enough to prove his case. Only at the time of second appeal, the learned counsel instructed the plaintiff to trace the petition mentioned documents. If the documents enclosed along with the petition is received as additional evidence, there is no prejudice caused to the respondents. By exercising due diligence, the petitioner is not able to produce the documents before the trial Court at the time of trial. Hence, the petitioner prayed to receive the enclosed documents as additional documents on the side of the plaintiff.
14. The averments made in the counter affidavit filed by the respondents 2 to 7 herein are as follows:
The document sought to be produced as additional documents are sale deeds executed by one Solaiappan, infact the said application 9/22 http://www.judis.nic.in S.A.No.1278 of 2001 is filed at the time, when the appeal is posted from respondent side arguments. That shows that the appellant is in the lethargic, callousness, in collecting the proposed documents. Further, the petitioner filed this application to receive the additional evidence without satisfying the requirements stipulated under Order 41 Rule 27 CPC. The filing of the application by the petitioner is only to prolong the matter. Those sale deeds, now required to be received as additional evidence are irrelevant to the issue involved in the present second appeal and the appellant cannot claim the title based on the boundary recitals as proposed in the additional documents. The proposed additional documents are in existence from 03.07.1981, 27.05.1991, 18.06.1993 and 14.12.2001, respectively. The appellant was not in due diligence in proceedings the proposed additional documents, if at all he feels that those documents are necessary to establish his case. So, receiving the additional evidence as required by the petitioner is unnecessary and also those documents are irrelevant to decide the appeal.
15. Before discussing the merits and demerits of the petition filed by the petitioner/appellant, under Order 41 Rule 27, it is necessary to see the concurrent Judgment made by the Courts below in respect to the second appeal filed by the appellant. 10/22 http://www.judis.nic.in S.A.No.1278 of 2001
16. Before the trial Court, the appellant filed a suit as against the respondent and seeks the relief of declaration and consequential injunction in respect to the suit property. Both the Courts below have concurrently held since the title of the suit property was not proved and thereby, the plaintiff is not entitled to any relief as prayed for.
17. The specific case of the plaintiff before the trial Court is vide, sale deed, dated 19.10.1974, the plaintiff purchased a property measuring to an extent of 11 cents in S.F.No.110/7 of Narasinganallur village, Tirunelveli Taluk. The said property was purchased by the plaintiff from one Fathima Beevi. Initially the said Fathima Beevi is having the property measuring an extent of 80 cents and the same was divided by her into parts in which the plot No.4 was sold out to the plaintiff. The sale deed stands in the name of the plaintiff, dated 19.10.1974 was marked as Ex.A1. Eversince, from the date of purchase, the suit property is in the possession and enjoyment of the plaintiff.
18. On the other hand, the specific case of the defendant is that vide sale deed, dated 06.07.1987, the deceased first defendant purchased the very same property from one Mohideen Pitchai. From 11/22 http://www.judis.nic.in S.A.No.1278 of 2001 the said date, he is alone in the suit schedule property. The sale deed stands in the name of the defendant was marked as Ex.B1. Now, on go through the recitals found in the said sale deed, it appears that the defendant purchased the plot Nos.2 and 3 from one Mohideed Pitchai.
19. Only in the said circumstances, the plaintiff has approached the trial Court for the relief of declaration and injunction. Before the trial Court, during the time of trial, on the side of the plaintiff, apart from the sale deed stands in the name of the plaintiff, the tax receipt pertains to the suit property, rough sketch and the encumbrance certificate dated, 24.09.1974, were marked as Ex.A2 to A4. On the other hand, the patta pass book in the name of the defendant, the tax receipt pertaining to the suit property for the year 1996 to 1998 and the demand notice issued by the Tirunelveli corporation, dated 29.08.1996, were marked as Ex.B1, B3 and B4 respectively.
20. While at the time of disposing the suit, the learned I-Additional District Munsif, Tirunelveli, has held, for proving the title, the documents marked on the side of the plaintiff are not sufficient. Particularly, for the reason that the title deed stands in the name of the vendor of the plaintiff is not produced and also the report filed by the advocate commissioner is not tallied with Ex.A3, which is the 12/22 http://www.judis.nic.in S.A.No.1278 of 2001 rough sketch appended with the plaint, the trial Court dismissed the suit.
21. In this regard, the learned counsel appearing for the petitioner/plaintiff would contend that the defendant has purchased his property in the year of 1987. Before 13 years, from the said purchase, the plaintiff Veerabahu has purchased the suit property in the year of 1974. So, it cannot be said that the defendant is having a valid title. For concluding the suit, the Courts below is having the duty to peruse the evidence let in by either side and not solely on the evidence let in by the plaintiff. In this regard, he relied on the Judgment of our Hon'ble Apex Court, in the case of Lakhan Sao (deceased) vs. Dharamu Chaudhary, reported in 1991 (3) SCC 313, wherein, in paragraph No.6, our Hon'ble Apex Court has held as follows:
“6. It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence, he cannot ask the court not to look at and act on it. The question of burden of proof at the end of case when both parties have tendered evidence is not 13/22 http://www.judis.nic.in S.A.No.1278 of 2001 of any great importance and the court has to come to a decision on a consideration of all materials.”
22. Further he relied on the Judgment of this Court, in the case of Tuticorin Diocesan Trust Association thro' its procurator at Tuticorin and others., vs. Thavamani and others., reported in 2003 (1) CTC 478, in which this Court has held in paragraph No.11 as follows:
“11. In Lakhan Sao (deceased) through LRs. v.
Dharamu Chaudhary, 199193) SCC 331, the Supreme Court has held, “6. ....... The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the Court has to come to a decision on a consideration of all material.” The very same view was reiterated by the Supreme Court in the case of “Arumugham (dead) by LRs and others v.
Sundarambal and another, Air 1999 SC 2216, wherein it was held, “16.On the question of burden of proof we are of the view that even assuming 14/22 http://www.judis.nic.in S.A.No.1278 of 2001 burden of proof is relevant in the context of the amended provision of Section 100 CPC., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether”.
23. Of course, it is open to the Court to peruse all the evidence let in by either side, before deciding the issue. But in this case, for proving the title, both the plaintiff and defendant have produced title deeds stands in their name as Ex.A1 and Ex.B2, respectively. Both the documents are registered sale deeds. Accordingly, both the documents are having equal force. Only upon considering Section 101 to 103 of the Indian Evidence Act, 1872, the trial Court has held that the plaintiff has not proved his case. In other words, it cannot be said that the trial Court is not considered the evidence let in by the defendant. In the said circumstances, it is appropriate to see the copy of the sale deeds, now enclosed along with the petition filed by the petitioner under Order 41 Rule 27.
24. In fact, all the sale deeds pertains to the property situated in and around the suit schedule property. In all the sale deeds, now 15/22 http://www.judis.nic.in S.A.No.1278 of 2001 submitted by the plaintiff, the name of the plaintiff has also been mentioned as one of the neighbouring land owners. Hence, it is very useful for the Court to consider the case of the plaintiff, particularly, for fixing the title now claimed by the plaintiff.
25. In this occasion, the learned counsel for the respondents would contend that all the copy of the sale deeds now referred by the plaintiff are executed in the year of 1991 onwards. So, without due diligence, the plaintiff has not produced the said documents at the time of trial, thereby, submitting the same after a long gap will prejudice the right of the respondents and accordingly, the additional evidence now produced by the plaintiff cannot be accepted.
26. On considering the arguments advanced by the learned counsel for the respondents, it is true, for allowing the application filed under Order 41 Rule 27 CPC., the person, who filed the said application has fulfilled the two conditions contemplated in the said section. In otherwise, the additional evidence shall not be allowed in appellate Court unless one of these conditions is satisfied:
“(a) improper refusal of evidence by trial
Court which ought to have been admitted, or
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S.A.No.1278 of 2001
(b) non-production of evidence
notwithstanding exercise of due diligence, or
(c) requirement of the appellate court itself for pronouncing judgment, i.e., impossibility to pronounce judgment without the additional evidence; or
(d) any other substantial cause.”
27. Now, applying the said principle with the case in our hand, as already observed, the evidence let in by the plaintiff and the defendant are having equal force. Now, the additional evidence requires to be received is in support of the plaintiff's case. Since all the sale deeds enclosed along with this petition are having the name of the plaintiff, the same may be necessary documents to decide the title of the plaintiff. In the absence of those documents, it is very difficult for the Court to identify the property as claimed by the plaintiff. So, for the better adjudication, it is necessary to allow the said application and accordingly the petition in C.M.P.(MD).No.7088 of 2019 is allowed.
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28. However, it is obvious on the part of this Court to give opportunity to the respondents to testify the same before marking those documents as exhibits, non-giving of opportunity to the appellant, is against the principles of law. Hence, without going into other aspects, I am of the considered opinion that it is a fit case for remitting back to the first Appellate Court for the purpose of testifying the additional documents, after marking the same through witnesses.
29. Substantial Question of Law Nos.1 and 2:
As already referred, while at the time of disposing the C.M.P.No.7088 of 2019, the Courts below has decided the case only based on the principles laid under Sections 101 to 103 of the Indian Evidence Act, 1872, it is true the sale deed stands in the name of the appellant is executed prior to 13 years from the date on which the defendant has purchased the suit property. Both the Courts below only in the situation that the documents relied on by either side is not helpful to fix the title of the suit property and accordingly, negatived the claim made by the plaintiff. However, this Court held that the additional documents now requires to be received by the plaintiff is very helpful to decide the title of the suit property. However, only 18/22 http://www.judis.nic.in S.A.No.1278 of 2001 after marking those documents as exhibits, the validity of the sale has to be decided for disposing the dispute. In fact, before marking those documents as exhibits, it is necessary to give sufficient opportunity to the respondents herein for testifying the documents by way of cross- examination of the witnesses, through whom the documents are exhibited. Without affording sufficient opportunity to the respondents, marking the additional documents as exhibits amounts to violation of natural justice. So, for the said purpose, it is necessary to remit back the appeal to the first Appellate Court only for the purpose of recording the additional evidence by way of marking the documents enclosed along with this petition. Since the matter is remitted back to the first Appellate Court, it is not necessary for answering the Substantial Question of law Nos.1 and 2.
30. In the result, for the foregoing reasons, the Judgment and Decree, dated 29.10.1998 is set aside and the appeal is remitted back to the file of the learned II-Additional District Judge, Tirunelveli, for the limited purpose, i.e., for recording the evidence with respect to the documents now produced by the plaintiff alone. The learned II-Additional District Judge, Tirunelveli, is directed to give sufficient opportunity to either side to mark those documents as evidence and thereafter, decide the issue in accordance with law. The Registry is 19/22 http://www.judis.nic.in S.A.No.1278 of 2001 directed to send the case records to the first Appellate Court immediately along with this order copy. Accordingly, this Second Appeal is disposed of. No costs.
30.08.2019 Index : Yes/No Internet: Yes/No PJL To
1. The II-Additional District Judge, Tirunelveli.
2. The I-Additional District Munsif, Tirunelveli.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai. 20/22 http://www.judis.nic.in S.A.No.1278 of 2001 21/22 http://www.judis.nic.in S.A.No.1278 of 2001 R.PONGIAPPAN, J.
PJL Pre-delivery Judgment made in S.A.No.1278 of 1999 30.08.2019 22/22 http://www.judis.nic.in