Madras High Court
Andal vs Ajjai Alva on 27 January, 2012
Author: G.M. Akbar Ali
Bench: G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.1.2012
CORAM :
THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI
Civil Miscellaneous Appeal Nos.1534 and 1535 of 2006
and C.M.P.Nos.8833/06, 2260/07 and 879/09
and M.P.No.1 of 2006
Andal ..Appellant in both the appeals
vs
1.Ajjai Alva
2.Union of India rep by
Secretary, Electricity,
Government of Union Territory
of Pondicherry,
Goubert Avenue, Pondicherry
3. Superintending Engineer,
Department of Electricity
Vembakeerapalayam
Pondicherry
4. Executive Engineer No.1
Department of Electricity
Vambakeerapalayam,
Pondicherry ..Respondents in all the appeals
Civil Miscellaneous Appeals filed under Order 43 Rule 1(U) of CPC against the judgment and decree dated 26.12.2005 made in A.S.No.14 of 2004 and 26.12.2005 made in A.S.No.28 of 2004 on the file of the learned Principal District Judge, Pondicherry.
For Appellant in both : Mr.I. Abrar Mohammed Ismail
the appeals for Mr.R. Subramanian
For 1st respondent : Mr.T.R. Rajagopalan
Senior Counsel for
Mr.T.R. Rajaraman
For 2nd respondent : Spl.Govt.Pleader (Pondy)
COMMON JUDGMENT
The above Civil Miscellaneous Appeals have been filed under Order 43 Rule 1(U) of CPC against the judgment and decrees dated 4.1.2006 and 26.12.2005 passed in A.S.Nos.14 and 28 of 2004 respectively by the learned Principal District Judge, Pondicherry.
2. Defendant No.4, in original suit in O.S.No.364 of 2000 is the appellant in both the appeals. The 1st respondent is the plaintiff and the other respondents are defendants 1 to 3 in the suit. The original suit was filed by the 1st respondent for a decree to declare that the order dated 28.4.2000, passed by the 3rd defendant/4th respondent is non-est in law and to direct delivery of B schedule property to the plaintiff.
3. The brief averments made in the plaint are as follows:
The suit schedule A property absolutely belongs to the 1st respondent/plaintiff by virtue of settlement deed dated 2.10.1999, executed by the plaintiff's mother Asha Alwa and duly registered. The plaintiff's father is a philanthropist and a social worker and the plaintiff's mother was also involved in social activities. She was extending help to the 4th defendant on several occasions.
4. The plaintiff's mother permitted the 4th defendant to stay in a small part of A scheduled property by putting up a thatched structure. The appellant/ 4th defendant promised to vacate as she was constructing a house at Bajanai Madam Street, Kalarpet, Pondicherry. The 4th defendant, who was given lease to occupy B schedule property which is a part of A schedule property, seemed to have created documents and fabricated records as if she paid tax for the thatched structure for some years and claimed occupation for more than 30 years.
5. The 4th defendant had also approached the 3rd defendant, the Executive Engineer, electricity department, Pondicherry seeking electric connection. Therefore, the plaintiff's mother revoked the leave granted to the 4th defendant/trespasser and issued a legal notice dated 8.11.99 to the defendants 1 and 2. However, the 3rd defendant issued a letter dated 28.4.2000 stating that the 4th defendant is entitled for electricity connection and her request would be considered.
6. The non-speaking order of the 3rd defendant is not sustainable as he had not given any opportunity to the plaintiff to be heard before passing the order. Sec.80 CPC Notice was also given to the defendants. Therefore, the plaintiff was constrained to file the suit for declaration that the order dated 28.4.2000 is non-est and for delivery of possession of B schedule property.
7. The defendants 1 to 3 filed a written statement inter-alia stating as follows:
The suit is not maintainable as it is not filed against the administrator/Chief Secretary to Government of Pondicherry to represent the Union Territory of Pondicherry. The 4th defendant applied for domestic service connection of electricity to her house at Sathya Nagar in the year 1993. At the time of applying such service connection, she enclosed the house tax receipts and the statement from the villagers. The Department processed her application and directed her to pay the necessary fees and she had also enclosed her electoral photo identity card, ration card and an encumbrance certificate. After considering all the documents and verification of the site by the field officer, the plaintiff was informed by letter dated 28.4.2000 that his objection was not tenable. As per sec 7 clause 4 of the terms and conditions of supply of electricity, if the owner is not available or if he refuses to give consent letter, the intending consumer shall produce proof of his or her being in possession, which is not illegal, and also execute an indemnity bond, whereupon, the department has to effect supply of electricity. Therefore, the suit was not maintainable.
8. The appellant/4th defendant filed a written statement inter-alia stating as follows:
The plaint averments are denied. The A schedule property forming part of a vast extent of 6 to 7 acres of land, originally belonged to one Kartha Mudaliar. On his demise, the property devolved to his son Venkatachala Mudaliar and upon his demise, it was inherited by his son P.K.V. Sundarraj. The said P.K.V. Sundarraj settled in Hyderabad with his family leasing out the property to Kandan Udayar who took up agricultural operation upon the entire extent of land. The 4th defendant's husband late Jayaraman was employed by the said Kandan Udayar since 1960 and as such he was permitted to put up a hut in the property and reside. The said P.K.S.Sundararaj died leaving the property to his legal heirs one Damayandhi and three sons Vindoh Kumar, Shyam Kumar and Kailash Kumar. The said legal heirs appointed one Shiva Kannappan as power of attorney in the year 1978.
9. The said Kandan was in uninterrupted holding of the said lands and the said Jayaram's employment continued and the possession was never interrupted.
10. The land was left with one Selva Mudali for the purpose of formulating a lay out. At the time of making laying out there were fragments of land left out and one such fragment with uneven shape is the plaint schedule property. The said Jayaraman was allotted with the plaint schedule property in consideration of his loyal and faithful service. The said Jayaraman, the 4th defendant and their three children are in peaceful possession and enjoyment of the plaint schedule property. The taxes were paid promptly from 1979. The said Jayaraman died in the year 1984 leaving behind the 4th defendant and her three children to inherit the property.
11. The 4th defendant renewed her house and applied for electricity connection. She has produced all the documents to prove her ownership and possession for more than 30 years and the plaintiff is in no way connected with the suit property. The plaintiff's title is denied and the suit for recovery of possession without asking for declaration of title is not maintainable. Therefore, the suit has to be dismissed.
12. With the above pleadings, the parties went for trial before the Principal District Munsif, Pondicherry. The plaintiff was examined as P.W.1 and he produced Exs.A.1 to A.4. The 4th defendant/appellant was examined as D.W.2. One Ramesh was examined as D.W.1 on behalf of the department and Exs.B.1 to B.9 were marked.
13. The trial court found that the plaintiff has failed to establish her title over the suit property and therefore, dismissed the suit.
14. Aggrieved by the order, the plaintiff filed an appeal in A.S.No.14 of 2004 before the Principal District Judge, Pondicherry. Aggrieved by an observation by the trial court that the 4th defendant has also not proved perfection of title by adverse possession, a cross appeal was filed by the 4th defendant in Cross Appeal No.28 of 2004.
15. By a common judgment dated 26.12.2005, the learned Principal District Judge found that the property of the plaintiff and the 4th defendant were not identified properly and therefore, set aside the judgment and remanded back the matter to the trial court for fresh disposal. Aggrieved by which, the 4th defendant has preferred the present appeals.
16. Since both the civil miscellaneous appeals are arising out of the same common judgment, they are heard together and disposed of by this common judgment on the single common point arising for consideration viz., as to whether the remand order dated 26.12.2005 is sustainable?
17. The case of the plaintiff/1st respondent is that the property mentioned as A schedule originally belonged to his mother who had settled the same in his favour by a registered settlement deed dated 2.10.1999. It is his further case that the appellant was permitted to occupy the B schedule property with an understanding to vacate the same later as the appellant was constructing her own house in some other place.
18. On the contrary, the case of the appellant is that the property originally belonged to one Kartha Mudaliar was inherited by one P.K.V. Sundarraj, who in turn, leased out the property to Kandan Udayar and the appellant's husband Jayaraman who was employed by the said Kandan Udayar in the year 1960, was permitted to put up a thatched shed to take care of the agricultural operations.
19 It is her further case that the said P.K.V. Sundarraj died leaving his wife and three children, who appointed one Sivakannappan as power of attorney and one Selva Mudali was entrusted with the work of forming a lay-out and an uneven portion of land left out as a fragment is the suit property in which the appellant's husband, and after his demise the appellant and her children, continue to reside and they also obtained ration card, voter ID apart from paying the property tax and also applied for electricity connection.
Now, after the appellant's making the application for an electricity connection and the 4th respondent's processing of the said application to provide electricity connection, the first respondent has filed the suit to declare the order/letter dated 28.4.2000, passed by the 3rd defendant/4th respondent is non-est in law and to direct delivery of B schedule property to the plaintiff.
The trial court non-suited the plaintiff. Some of the findings of the trial court corresponding to the issues are as follows:
i) On the issue, whether the suit is barred for declaration of title, the trial court found that the appellant did not accept the title of the plaintiff and she has taken a specific plea that the suit property was owned by one P.K.V. Sundarraj under whom one Kandan Udayar was cultivating and to whom her husband, who was assisting in cultivation, was permitted to put up a thatched shed and reside. The trial court has also observed that the plaint was silent about the original ownership of the land and does not say as to how the plaintiff's mother derived her claim over the suit property. It has been further observed that the plaintiff has filed Ex.A.4 Sale deed dated 15.4.1982 through which the plaintiff is seeking title from the sale of common owner viz., P.K.V. Sundarraj only at the time of trial.
The trial court further observed that the plea of adverse possession strongly raised by the defendant could not be proved. It was further observed that in view of a valid objection on the side of the defendant regarding the claim of the title by virtue of Ex.A.4, the trial court was of the view that the plaintiff's omission to seek for the relief of declaration of title is of grave error, and so observing, answered the issue in favour of the defendant.
ii) On the issue, whether the 4th defendant/appellant has perfected title to the B schedule property through adverse possession over 30 years, the trial court found that, by virtue of the discussion over the first issue, the defendant has failed to establish the character of possession as adverse possession.
iii) On the other issue as to whether the plaintiff is entitled for a decree of delivery of possession regarding B schedule property, the trial court found that the plaintiff failed to prove her title and that Ex.A.4 is inadmissible and so finally, held that the plaintiff is not entitled to question any of the acts of the defendants and ultimately, dismissed the suit.
As stated earlier, the plaintiff had preferred appeal in AS No.14 of 2004 and the appellant had preferred Cross Appeal No.28 of 2004. The appellate court observed as follows:
'The fourth defendant claims independent right over the property through her husband, who was allotted a small piece of land from and out of a larger extent of land, which was divided into several plots. The plaintiff also claims right over the property on the basis of Ex.A2-Gift Settlement Deed. In such a situation, the property of the plaintiff and the fourth defendant has to be identified properly and without identifying the disputed property, the plaintiff cannot be granted a decree as prayed for by him. In the above circumstances, this court finds that it is a fit case to be remanded back to the trial court for identifying and locating the properties of the plaintiff and the fourth defendant by appointing an Advocate Commissioner.
Assailing the order of the remand, Mr.I. Abrar Mohammed Abdullah, who appeared for Mr.R. Subramanian, the learned counsel for the appellant submitted that the trial court has rightly found that the plaintiff has not proved his title to the property and negatived all the reliefs sought for by the plaintiff. The learned counsel pointed out that enough materials were available before the first appellate court to decide the issues on hand and it should not have set aside the decree of dismissal by the trial court.
The learned counsel pointed out that the plaintiff has miserably failed to establish his rights and also failed to identify the property and therefore, the order of remand is not correct.
To strengthen his arguments, the learned counsel relied on the following case laws:
i) AIR 2002 SC 771 (P. Purushottam Reddy vs M/s Pratap Steels Limited
ii) 2008(7)MLJ 695(SC)Municipal Corporation, Hyderabad vs Sunder Singh
iii)unreported Judgment in CMA No.323 of 2007 dated 3.9.2010
iv)1969(2)UJ 115 (SC) (Seth Anand Kumar vs Abnash Kaur)
v) 2003(3)MLJ 524 (Subbiah Konar, Pandi @ Arunachala Konar, Muthupandian and Muthiah vs State of Tamil Nadu through District Collector and the Tahsildar) On the contrary, Mr.T.R. Rajaraman, the learned Senior counsel appeared for 1st respondent/plaintiff submitted that the plaintiff has proved the title by filing a settlement deed as well as a registered document under Ex.A.4 through which the mother of the plaintiff, derived title. The learned senior counsel pointed out that when the title of the plaintiff is not in question, the nature of possession of the appellant alone must be considered and the trial court has correctly held that the appellant has not stated her nature of possession and in that event the trial court ought to have decreed the suit. The learned senior counsel also pointed out that the first appellate court without considering the judgment of the trial court had unnecessarily remanded the case back to the trial court which is a clear violation of the civil procedure code.
The learned counsel relied on a decision reported in 2011 (1) CTC 239, where this Court has held as follows:
Hence in cases where the Appellate Court finds that the materials on hand are not sufficient to definitely come to a conclusion or that the judgment and decree of the Trial Court is erroneous on fact that receipt of additional evidence is required for doing substantial justice, that the matter should be decided afresh by the Trial Court, then alone the Court can admit additional evidence and order a remand for fresh disposal in the light of the additional evidence produced by the aggrieved party. The Appellate Court shall not, as a matter of course, admit additional evidence either at the instance of the Plaintiffs or the Defendant even before considering the Trial Court's judgment. Learned Senior Counsel pointed out that the default of the party in not producing an evidence is no ground for admitting the evidence and to order a remand.
Heard the submissions made on either side and perused the materials available on record.
As stated earlier, what is challenged in these appeals are the remand order of the first appellate court. The purpose of the remand of the first appellate court is for appointment of Advocate Commissioner for identification of the property. It is relevant to quote Order.41 Rule 23, 23(A) and 24 CPC Rule 23. Remand of case by appellate Court:
Where the court from whose decree and 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 cases 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 re-trial 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 Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. In 2005 (3) L.W 366 (S. Shanmugham vs I.S. Sundaram & Others , wherein the Division Bench of this Court in paragraph-12, observed as follows:
On a perusal of the judgment of the lower appellate court, it is revealed that on the basis of both oral and documentary evidence available on record, the lower appellate court came to the conclusion that the third defendant is also entitled to a share in A schedule property and in the sketch of the Commissioner also when it is made clear that as to how A schedule property could be partitioned and especially when the provisions under Order 41 Rules 23 to 29 of CPC., are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and to try the appeal, as rightly pointed out by the learned counsel for the appellant, we are of the view that there is no necessity to remand the matter back to the trial court and that the lower appellate court itself can try the matter after taken further evidence as to the point to be decided and it can dispose of the appeal on merits and in accordance with law In AIR 2002 SC 771 (P. Purushottam Reddy vs M/s Pratap Steels Ltd the Apex Court held as follows:
The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order-41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v Sushila (AIR 1965 SC 365, at P.399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20,Rule 3 or Order 11, is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
In 1969 2 UJ 115 (SC) , (Seth Anand Kumar vs Abnash Kaur) the Apex Court has observed that re-trial can be ordered only in exceptional circumstances.
In 2003 4 LW 873 (Subbiah Konar, Pandi @ Arunachala Konar, Muthupandian and Muthiah vs State of Tamil Nadu through District Collector and the Tahsildar) a division bench of this court held as follows:
16. In the light of the above pronouncement of the Supreme Court, the above dicta, wherein the Supreme Court has, after detailed consideration of the earlier case law held that remand is permissible only if the trial court disposed of the case otherwise then on a preliminary point and the decree is reversed in appeal and retrial is considered necessary. Remand is permissible only if the said twin conditions being satisfied and not otherwise. While following the pronouncement of the Supreme Court, we are of the considered view that remand ordered by the first appellate court cannot be sustained. The Supreme Court has also cautioned that an unwarranted order of remand gives a litigation an undeserved lease of life, which should be avoided.
In 2008 7 MLJ 695 (SC) (Municipal Corporation, Hyderabad vs Sunder Singh), the Apex Court held as follows:
Ratio Decidendi When the suit was not decided on the preliminary issue then Order 41 Rule 23 CPC, not applicable. In the unreported judgment in CMA 323 of 2007 dated 3.9.2010, the learned Single Judge of this court has referred the decision reported in 2007 (2) CTC 49 (Kannathal and four Ors vs Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore rep by its Executive Officer and Anr) and held as follows:
15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand... In the light of the above said decisions, it is well settled that the order of remand for re-trial can be done only in exceptional cases and if there are sufficient evidence before the appellate court the court itself can decide the case as the first appellate court is the last court on facts. If the order of remand is only for the purpose of appointment of commissioner, the appellate court itself can appoint a commissioner to assist the court or it can direct the trial court to appoint a commissioner, call for the report and decide the matter on merits.
In the case on hand, the only purpose for which the first appellate court remanded the matter was to appoint a commissioner for identifying and locating the properties of the plaintiff and the 4th defendant. For that reason, the first appellate court need not have set aside the finding of the trial court and remand the matter for fresh trial or for appointment of a commissioner.
Therefore, I am of the considered view that the order of the remand is unsustainable.
In the result, both the civil miscellaneous appeals are allowed and the matter is remitted back to the first appellate court with a direction to keep the matter on its file and get a report from the trial court either by directing the trial court to appoint an Advocate Commissioner, or if necessary appoint a Commissioner on its own and decide the matter on merits. The parties are at liberty to adduce any additional evidence if any in accordance with law.
sr To The Principal District Judge, Pondicherry