Madras High Court
S.N. Ananthachari vs A.C. Rajagopalan And Six Others on 4 August, 2000
Equivalent citations: 2000(4)CTC658
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER
1. The defendant in the suit in O.S.No.295 of 1996 on the file of the Court of District Munsif, Valangaiman is the appellant herein: This Civil Miscellaneous Appeal has been filed against the judgment and decree dated 17.7.1998 made in A.S.No.37 of 1997 by the Court of Subordinate Judge, Kumbakonam thereby remanding the case to the Court of District Munsif, Valangaiman, which passed the judgment and decree dated 2.1.1997 in O.S.No.295 of 1996.
2. The respondents 1 and 2 herein and one Balakrishnan filed the suit in O.S.No.295 of 1996 on the file of the Court of District Munsif, Valangaiman in their capacity as Trustees of a Private Trust called Andi Krishnasamy Iyer Private Trust against the appellant herein for delivery of possession of the suit property and for past and future rents. The suit property is a vacant site measuring about 35' x 411/2, located in Ward No.4 of Kumbakonam town.
3. Regarding the facts of the case, the plaintiffs would submit in the plaint that the suit properties belong to Andi Krishnasamy Iyer Trust; that the first plaintiff's father was Krishnasamy; that the suit property is a vacant site falling in part of T.S.No.960 and it is leased to the defendant in the year 1979 for a monthly rent of Rs.5; that the suit property is required for the purpose of Trust and hence on 26.8.1988, the tenancy was terminated by notice and for evicting the tenant from out of the suit property and for the past rental arrears of Rs.180 further providing for initiating action for the future rents they have filed the suit against the defendant.
4. On the part of the defendant, besides generally denying the averments of the plaint, he would also specifically deny that the suit property is belonging to the plaintiff/Trust and that it had been let out in favour of the defendant in the year 1979 on a monthly rent of Rs.5; that there had been absolutely no tie as landlord and tenant in between the plaintiffs and the defendant; that from the year 1960, the defendant is in occupation of the suit property; that he need not pay any rent to the plaintiffs; that the defendant has become entitled to the suit property by adverse possession; that the notice issued by the plaintiffs dated 26.8.1989 had been fittingly replied by reply notice dated 13.9.1988; that the correct measurements of the suit property have not been furnished; that the oral agreement said to have been entered into is totally invented and false and on such grounds the defendant would pray for dismissing the suit with costs.
5. On the above pleadings, the trial Court framing the following issues, viz.
1. Whether the plaintiffs are entitled to delivery of possession and rental arrears as claimed ?
2. Whether the defendant has perfected his title by adverse possession ?
3. Whether the defendant is a tenant of the suit property ?
4. Whether the plaintiffs are entitled to the suit property ? and
5. What other relief, if any, the plaintiffs are entitled to ?
conducted the trial of the case, wherein on the part of the plaintiffs, besides the third plaintiff himself examining as P.W.1 they have also examined one Subramanian as P.W.2 and marked 10 documents as Exs.A.1 to A.10, Exs.A.1 to A.6 being the tax demand notices, Ex.A.7 being the tax receipt dated 31.3.1985, Ex.A.8 being the notice issued by the plaintiffs to the defendant dated 26.8.1988, Ex.A.9 being the postal acknowledgment and Ex.A.10 being the reply dated 13.9.1988 sent by the defendant to the plaintiffs and on the part of the defendant, he examined himself as D.W.1 but no documents were marked on his behalf.
6. The trial court having assessed the facts and circumstances as revealed in evidence and appreciating the evidence in its own way, had observed in issue No.3 that on the part of the plaintiffs absolutely no documentary evidence was placed before the Court thereby proving the lease agreement entered into or for payment of the monthly rents by the defendant; that the very case of the plaintiffs is that the agreement was oral; that the evidence of P.W.2 is not believable since he deposed that in the last twenty years, he had seen the defendant only once and on that occasion too he did not witness the rent being paid in favour of the plaintiffs by the defendant and had no personal knowledge about the same; that absolutely no iota of evidence had been placed to establish the lease agreement said to have been entered into orally and answered this issue in favour of the defendant that the defendant is not a tenant of the suit property.
7. The trial Court, while dealing with the second issue framed, whether the defendant has perfected his title by adverse possession, observed that the defendant has deposed in his evidence that he is in possession of the suit property to the knowledge of the plaintiffs; that for ever the statutory period for over 12 years, he had been in possession and enjoyment of the suit property without any let or hindrance; that eventhough no documentary proof had been produced on the part of the defendant for having been in possession of the suit property for over the statutory period, his possession has no been denied by the plaintiffs and what the plaintiffs have come forward to say is that the defendant is a tenant and in such capacity only he is in possession and enjoyment of the suit property; that moreover, the plaintiffs have admitted that the defendant is in possession and enjoyment of the property from 1979 and P.W.1, one of the plaintiffs to the suit, had admitted in his evidence that in the year 1973 itself, part of the suit property had been entrusted with the defendant and hence it is established that from 1973 onwards for 17 long years, the defendant is in physical possession of the suit properties without any interruption; that when the allegation of the plaintiffs that the defendant is in possession and enjoyment of the suit property only as a tenant of the plaintiffs has not been established, it is clear that the defendant has perfected his title by adverse possession and thus the trial Court answered this issue also in favour of the defendant.
8. Then dealing with Issue No.1, whether the plaintiffs are entitled to delivery of possession and other reliefs as sought for, the trial Court observed that at the first instance, the plaintiffs should establish that the defendant was the tenant, but having failed to establish the same in Issue No.3 and further having failed to rebut the strong plea taken on the part of the defendant by valid evidence that he perfected his title by adverse possession in Issue No.2 and further having failed to establish for Issue No.4 that the plaintiffs are entitled to the suit properties, the plaintiffs ultimately become disentitled to any relief much less under all the issues framed and with such observations, the trial Court dismissed the suit with costs deciding all the issues as against the plaintiffs.
9. Aggrieved, the plaintiffs before the trial Court have preferred the appeal before the Court of Subordinate Judge, Kumbakonam in A.S.No.37 of 1997 and during the pendency of the said appeal, the first appellant therein i.e., the first plaintiff to the suit had passed away and hence his legal representatives were impleaded as appellants 4 to 8 therein, who are the respondents 3 to 7 herein. During pendency of the said appeal, the appellants therein also filed I.A.No.61 of 1998 praying to receive (1) the tenancy agreement dated 26.9.1973 entered into in between the deceased first appellant and A.R. Chakrapani, Ramakrishnan and Subramani wherein the Survey Number of the suit property had been given, (2) the Town Survey Register extract for S.No.960 obtained in the year 1993, (3) a sketch obtained from the Municipality when the appeal was pending, (4) the extract of Survey No.1967 obtained during the pendency of the appeal and (5) the certified copy of the judgment dated 31.3.1920 made in O.S.No.40 of 1918, which had been applied and obtained in the year 1998, for additional evidence and the lower appellate Court dealing with the said appeal along with the said I.A., framed the following point for consideration;
Whether the appeal should be allowed setting aside the judgment and decree passed by the trial Court ?
10. The lower appellate Court remarking that since the trial Court dismissed the suit on ground that the plaintiffs have failed to establish the case with sufficient documentary evidence and since the plaintiffs have filed the documents, which are strongly believed on the pan of the plaintiffs to establish their case allowed the said petition to receive additional evidence on ground that no prejudice would be caused to the respondents by allowing the said petition.
11. The lower appellate Court relying on the decisions reported in Muthu Goundar v. Poosari @ Palaniappan and 4 others, and Abubakar Abdul Inamdar (dead) by LRs. and others, v. Harun Abdul Inamdar and others, observed that unless the defendant admits the ownership of the plaintiffs to the suit property, the question of claiming tide by adverse possession as against plaintiffs would not at all arise and that the defendant has not proved his possession of the suit properties since the onus is heavily on him to positively prove this aspect and hence rejected the observation of the trial Court that the defendant had perfected his title by adverse possession. Further, the lower appellate Court observing that giving some more opportunities for the plaintiffs to prove their case, especially in view of the admission of the additional documents, would in no manner prejudice to the defendants remanded the case to the trial Court for further trial to be held with due opportunity for both parties to be heard and to appreciate the additional documents in evidence further giving opportunity for parties to examine any more witnesses fixed the date of hearing of the case before the trial Court as 16.9.1998.
12. It is only challenging the said judgment and decree, the defendant/respondent has come forward to file the above Civil Miscellaneous Appeal.
13. During arguments, the learned counsel appearing for the appellant would bring to the notice of the Court the requirements of Order 41, Rule 27 regarding additional evidence and would submit that there had been no necessity to admit the additional evidence at the appeal stage and would cite a judgment delivered in S. Umapathy v. Arunachalam Pattankattiar and another, wherein it is held that unless the conditions imposed by the provision of law are satisfied, the Court cannot admit the additional evidence at all. The learned counsel for the appellant would cite yet another judgment of Division Bench of this Court delivered in Visalakshi Ammal v. Dhanalakshmi Ammal and others, 1989 (2)L.W. 414 wherein it is held that for the purpose of appreciating the additional evidence, the case cannot be remanded.
14. The learned counsel for the appellant would further cite another judgment of this Court delivered in Ignasiammal v. Mrs. Fathima Beevi and another, wherein it is held that "Additional evidence can be produced before Appellate Court only when trial Court refuses to admit evidence, which ought to have been admitted or party seeking to produce evidence of additional evidence do not produce such evidence despite exercise of due diligence and such evidence was within party's knowledge and Appellate Court require additional evidence to pronounce judgment or for any other sufficient cause."
It has been further held therein that "The appellate Court cannot receive additional evidence to find out truth of plaintiffs case and reception of additional document would only enable plaintiff to fill up lacuna."
It has been further held therein that "For Order 41, Rule 93 of C.P.C., no remand of suit can be ordered on ground that available evidence does not support respective case of plaintiffs and defendants assuming available evidence does not reveal the rival parties and suit cannot be remanded but appeal Court itself can deal with the matter. Power of remand is not unfettered for receiving additional evidence. Power under Order 41, Rule 27 can be exercised only where effective adjudication is not possible without receiving documents for additional evidence. Failure to file documents due to oversight and mistakes will not be a ground to seek opportunity to adduce additional evidence as it would amount to giving second opportunity to prove case set up by parties."
15. In reply, the learned counsel appearing for the respondents would submit that it is a Trust property leased out in favour of the third party; that the documents sought to be marked are vital to the issue and they were not available when the suit was pending before the trial Court; that it is only the remand that is challenged and not the order passed the lower Court in allowing the I.A. and the same remains unchallenged and would pray for dismissing the above appeal.
16. It is an open case that the suit had been filed by the respondents herein seeking delivery of possession of the suit property and for past and future rents on ground that the appellant herein is their tenant and that the suit property is belonging to the Trust and that the respondents are the Trustees. However, on evidence adduced before the trial Court since the plaintiffs have not established their case in evidence, the trial Court would not only dismiss the suit in toto but also on the plea of the defendant would declare that the defendant had perfected his title to the suit property by adverse possession. Aggrieved, the plaintiffs have not only preferred the appeal but also would file a petition under Order 41, Rule 27 of the.C.P.C. to receive the .additional evidence. The first appellate Court discredited the manner in which the trial Court had declared that the defendant had perfected his title by adverse possession since the same Court had refuted the plea of the plaintiffs that they are entitled to the suit property. The lower appellate Court also remarked that unless the plaintiffs are declared as entitled to the suit property, the question of perfecting title by adverse possession by the defendant does not arise at all. The appellate Court further remarking that since the trial Court had dismissed the suit for inadequate evidence placed before it, now it has become necessary to accept the additional evidence placed before the appellate Court and would not only set aside the judgment and decree as passed by the trial Court but also remanded the case to the trial Court for fresh trial to be conducted with direction to afford further opportunities for parties to be heard allowing them not only to examine further witnesses but also appreciating the additional document admitted by the appellate Court and to arrive at a valid decision ultimately.
17. While allowing the I.A.No.61 of 1998 filed under Order 41, Rule 27 of the C.P.C., the appellate Court observed that for inadequacy of evidence plaintiffs case has been dismissed by the trial Court and that now before the appellate Court, some more evidence has been placed and it is highly necessary to accept those evidence and hence remanded the matter to the trial Court for fresh trial to be conducted.
18. While doing so, the appellate Court has miserably failed to take into consideration the requirements of Order 41, Rule 27 of the C.P.C. so far as it is concerned with admitting the application for additional evidence and further regarding Order 41, Rule 23 regarding remand. As well pointed out in the judgment reported in Ignasiammal v. Mrs. Fathima Beevi and another, , neither the appellate Court seems to have been bothered about the requirements of Order 41, Rule 27 nor Order 41, Rule 23. At both scores, absolutely no legal considerations or norms applied by the first appellate Court and in fact the discussion of the first appellate Court pertaining to both these vital aspects of law is absolutely nil. Hence, it is appropriate only for the appellate Court to decide about these two points in application of the legal yardstick as imposed by the relevant provisions of law and propounded by the said judgment Hence, in the circumstances of the case, it is just and proper to remand the case only to the first appellate Court for proper consideration of both these questions and for its final decision and hence the following orders are made:
(i) The judgment and decree dated 17.7.1998 made in A.S.No.37 of 1997 by the Court of Subordinate Judge, Kumbakonam is hereby set aside;
(ii) the case is remanded to the Court Of Subordinate Judge, Kumbakonam for reconsideration of I.A.No.61 of 1998 pertaining to admitting the additional evidence under Order 41, Rule 27 of the C.P.C. The first appellate Court is hereby directed to strictly adhere to the requirements of Order 41, Rule 27 C.P.C. in dealing with the I.A.No.61 of 1998 pertaining to additional evidence and decide the same strictly applying the legal yardstick as broughtforth in the judgment reported in Ignasiammal v. Mrs. Fathima Beevi and another, , extracted;
(iii) After taking a decision in adherence to the law, as aforementioned, regarding the application for additional evidence, the first appellate Court to deal with the appeal and to decide itself the appeal on merit and in accordance with law.
In result, the above Civil Miscellaneous Appeal is allowed subject to the above directions. No costs.
Consequently, C.M.P.No.16017 of 1998 is closed.