Madras High Court
S. Madasamy Thevar vs A.M. Arjuna Raja on 27 March, 2000
Equivalent citations: AIR2000MAD465, AIR 2000 MADRAS 465, (2000) 3 MAD LW 793
JUDGMENT S. Thangaraj, J.
1. The respondent in A.S. No. 91 of 1989 on the file of the Subordinate Judge. Srivilliputhur has filed this Second Appeal challenging the Judgment and decree passed by the said Court.
2. The respondent/plaintiff filed O.S. No. 422 of 1984 on the file of the District Munsif. Srivilliputhur for declaration and injunction. The trial Court after full trial, dismissed (sic) suit and the unsuccessful plaintiff filed A.S. No. 91 of 1989 on the file of the Subordinate Judge, Srivilliputhur who allowed the appeal and hence, the Second Appeal.
3. The following substantial questions of law are framed in the Second Appeal:--
"(1) Whether the judgment and decree of the lower appellate Court is in accordance with Order 41, Rule 31, C.P.C.?
(2) in a suit for declaration of title and for consequential injunction does not the initial burden of proof lie on the plaintiff?
(3) in keeping with the Initial burden. Is not the plaintiff bound to prove his case by positive evidence on his side, rather than by reliance on the loopholes, if any. on the side of the defendant?
(4) is not secondary evidence as provided under Section 65 of the Indian Evidence Act worthy of credence and entitled to be acted upon and in the absence of the original in any way detract from the merits of a case?
(5) in the absence of a clear and specific finding as to actual possession and enjoyment, is the plaintiff entitled to a consequential relief of permanent injunction on mere proof of title alone?
(6) Should a Court be swayed by the volume of evidence in a case without testing its quality?"
On 7-1-2000. both the parties requested this Court to frame an additional substantial question of law which is as follows :--
"Whether the High Court can determine issue regarding title, which has not been determined by Appellate Court properly, in exercise of its powers under Section 103 of Code of Civil Procedure?"
4. The suit properties shown in 'A' and 'B' schedule in the plaint are 20 cents and 66 cents respectively are in Rajapalayam. Both the parties claimed title to the suit properties and each one of them have produced their respective title deeds, apart from oral evidence let in by them in support of their respective contentions. As the defendant is the appellant herein, we have to consider his case in proper perspective and at the same time without forgetting the general principle that the plaintiff has to prove his case and he cannot succeed by taking advantage of lack of evidence in the case of the defendant. Though the trial Court approached the matter by considering the evidence let in by the plaintiff and at the same time the evidence adduced on the side of the defendant and has come to the conclusion. The first appellate Court while elucidating the various facts has written the judgment in such a way to have a feeling in the minds of those who read the judgment that it has shifted the burden of proof on the defendant. A perusal of the judgment with some care would go to show that the first appellate Court has also approached various issues on the basis of the claim made by the plaintiff, the appellant before the said Court and the way in which the facts were considered by shifting the burden on the defendant is not in accordance with law. However, the questions of facts are expected to be decided by the trial Court as well as the first appellate Court and the High Court in the Second Appeal should act on the question of law. While approaching the present Second Appeal by bearing the principle in mind, learned counsels for both sides felt that in the circumstances of the present case, the High Court in the Second Appeal has to consider the question of law on the basis of the facts presented by the respective parties along with the various substantial questions of law framed in the Second Appeal. In this case, learned counsels for both sides by consent requested this Court to frame an additional substantial question of law in order to satisfy the provisions of Section 103, C.P.C. 1 do not think it necessary to state the definition of Section 100, C.P.C. However, it will be apt to quote a recent decision of the Supreme Court in Hari Singh v. Kanhaiya Lal, wherein their Lordships have held (Para 10):--
"Sub-section (3) places an obligation on the appellant to precisely state the substantial question of law involved in the appeal. Sub-section (4) confers on the High Court an obligation to formulate the substantial question of law, if it is satisfied that it is involved. Then Sub-section (5) confers right on the respondent to urge that no substantial question of law arises. The proviso supplements the discretion to the Court to formulate if some other substantial question of law arises if not formulated. The aforesaid scheme of this section clearly reveals the intent of the legislature to limit the exercise of power of the High Court under Section 100. Thus the existence of a substantial question of law is the sine qua non for the exercise of power by the High Court under this Section."
5. Their Lordships of the Supreme Court in the recent years have held in number of decisions that the concurrent findings of fact arrived at by the Court below should not be interfered with by the High Court in the Second Appeal, however, erroneous they may be or the High Court should not substitute its subjective satisfaction in the place of those given by the Court below.
6. In Navaneethammal v. Arjuna Chetty, AIR 1996 SC 3521, it was held by their Lordships of the Supreme Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
7. In Kshitish Chandra Purkait v. Santosh KumarPurkait, , their Lordships of the Supreme Court have held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not mere question of law.
8. In Ninge Gowda v. LingeGowda, . the High Court has wrongly framed an issue and on appreciation of evidence reversed the finding of fact recorded by the first appellate Court and in such ctrcumstances, the Supreme Court has held that the appreciation of evidence by the High Court under Section 100, C.P.C. therefore is unwarranted to reverse the findings of fact recorded by the first appellate Court, which is the final Court of fact.
9. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, . their Lordships have held (Para 11 of AIR) :--
"Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction under Section 100, C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100, C.P.C. without following the aforesaid procedure cannot be sustained."
10. In Kamataka Board of Wakf v. Anjman-E-Ismail Madris-UN-Niswan, . their Lordships of the Supreme Court have held--
"High Court's reversal of the concurrent findings of the trial and appellate Courts and substituting its subjective satisfaction in the place of that of the lower Courts was wholly unwarranted."
11. Their Lordships of the Supreme Court in Kondiba Dagadu Kadam v. Savi tribal Sopan Gujar, have held (Para 5):--
"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
12. From these recent decisions, it is clear that under Section 100, C.P.C., the High Court cannot interfere with the findings of fact arrived at by the first appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law. or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
13. The High Court ordinarily will not interfere with the concurrent findings of the Courts below or the findings of the first appellate Court which is the final Court of facts and the findings can be set aside on valid reasons as contemplated under law. Very many decisions say various reasons for such interference by the second appellate Court on the findings of facl by the first appellate Court. To show how their Lordships have earlier construed such position before the amendment in the year 1976, it is apt to quote some of the earlier decisions on this point.
14. In Shivabasava v. Sangappa, (1905) ILR 29 Bom 1 (PC), it was held--
"Affirming the decision of the High Court that such a disposal of the suit was a "substantial error or defect of procedure" within the meaning of Section 584 of the Civil Procedure Code (Act XIV of 1882) and that the High Court therefore had Jurisdiction to set aside the finding on second appeal."
15. In Ramachandra v. Ramalingam, . It was held (Para 10)--
"In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law. or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court."
16. In Sonawati v. Sri Ram. , the Supreme Court has held that the first appellate Court did not refer to important pieces of evidence and therefore such conclusion cannot be regarded as binding upon the High Court in Second Appeal.
17. In Radha Nathan v. Haripada, , it was held (Para 4)--
"It has been urged that under Section 100, Civil Procedure Code, it was not open to the High Court to interfere with questions of fact. The High Court has pointed out that certain material evidence in the shape of documents was not considered by the first appellate Court and a good deal of assumptions of fact were made. Apart from that on proved and admitted facts it was open to the High Court to find what the nature of the tenancy was."
18. In Budhwanti v. Tulab Chand Praaad, , it was held (Para 11)--
"It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but wherein it is found that the findings is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal patently erroneous finding in order to render justice to the party affected by the erroneous finding."
19. In J. B. Sharma v. State of Madhya Pradesh, . It was held (Para 14 of AIR) :--
"It will thus be seen that the first appellate Court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded. The High Court was, therefore, justified under Section 100 of the Code of Civil Procedure to set aside the finding."
20. In S.V.R. Mudaliar v. Rajabu F. Buhari. , it was held (Para 15)--
'There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Gagadhindra Nath, (1906) 10 Cal WN 630, wherein, while regarding the appellate judgment of the High Courtof Judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."
21. In Kochukakkada Aboobacker v. Attah Kasim, , the Supreme Court has held (Para 3)--
"Having considered the totality of the facts and circumstances, we are of the considered view that the learned Judge had rightly interfered with the concurrent finding of fact recorded by the trial Court and appellate Court and granted a preliminary decree for partition. We do not find any error of law muchless substantial question of law, for interference."
22. In Surain Singh v. Mehenga, , their Lordships of the Supreme Court have held--
"Though normally the High Court might have interfered with the finding recorded by the appellate Court, in view of the diverse views by the trial Court and the appellate Court, the High Court was impelled to go into the question and recorded a finding. The material evidence and relevant circumstances were not adverted to by the first appellate Court. The High Court, therefore, had done that exercise. It being a finding of fact, we do not find it a fit case for our further interference."
23. In Mehrunnisa v. Visham Kumari, AIR 1998 SC 427, their Lordships have considered three earlier decisions of the Supreme Court, wherein it was pointed out (1) if the finding was of an assumption not supported by evidence and failure to consider the entire document; (2) failure to consider the entire relevant evidence and also to consider the evidence having direct bearing; (3) failed to have proper construction of the documents and inferences have not legally be drawn, the High Court was justified in interfering with such findings. Affirming those reasons, Their Lordships have held that thejudgment of the High Court interfering with the findings of the lower appellate Court was justified.
24. This Court in Rajammal v. Ramasami, (1998) 1 Mad LW 451 held--
"Since the lower Appellate Court has Ignored the weight of circumstances and allowed its judgment to be influenced by inconsequential matters, this Court is entitled to interfere under Section 100 of the Code of Civil Procedure."
25. In Rajiah Nadar v. Manomani Ammal, , this Court after considering Section 100. C.P.C. held (Para 25)--
"There is no justification to construe Section 100 in a very narrow and restricted sense and the recent trend has been in favour of keeping an open eye as against the glaring misreading, misquoting or failure to consider crucial evidence. These judgments wilt also show that the Supreme Court had not only upheld the interference by the High Court against the findings rendered by the first appellate Court, but also as against the concurrent findings of fact by both the lower Courts on several grounds."
26. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of the Apex Court and acted on assumption not supported by evidence. Under Section 103, C.P.C., the High Court has got power to determine the issue of fact. The Section lays down:--
Power of High Court to determine issue of fact :-- in any second appeal, the High Court may, if the evidence on the record is sufficient determine any issue necessary for the disposal of the appeal .--
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court; or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."
27. In Bhagwan Sharma v. Bani Ghosh, . Their Lordships of the Supreme Court have held (para 5) --
The High Court is certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in alternative to decide the case finally in accordance with the provisions of Section 103(b). If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the Court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.
28. This Court in Rahmathulla Shutthari alias Peer Hazarath v. The Muslim Jamath of Eachampatti (1998) 1 Mad LW 413 held that the High Court in the Second Appeal can consider such material evidence which were not considered by the Courts below or wrongly determined.
29. Under Article 133 of the Constitution of India, Civil Appeal shall lie to the Supreme Court from the judgment, decree or final order in a civil proceedings of a High Court if the High Court certifies under Article 134A. In one such appeal filed under Article 133 of the Constitution of India in M.S. Jagadambal v. Southern Indian Education Trust . It was contended that the trial Court did not frame an issue as to the defendants perfecting title to the suit property by adverse possession and that has caused prejudice to the defendants. Their Lordships have held (Para 11 of AIR) --
"We are not persuaded by the alternate contention urged by learned counsel for the respondents. The trial Courtdid not frame an Issue as to the defendants perfecting title to the suit property by adverse possession. The defendants did not produce an evidence in support of the plea of adverse possession. It is not the case of the defendants that they were misled their approach to the case. It is also not their case that they were denied opportunity to put forward their evidence. It is, therefore, not proper for us at this stage to remand the case to enable the defendants to make good their lapse."
30. In the instant case also, the defendant/appellant has pleaded for prescription of title by adverse possession and the trial Court has not framed any issue and thereby the trial Court as well as the first appellate Court has no opportunity to decide the said question. However, the appellant has candidly admitted, though it was stated in the written statement no such plea was taken during trial of the case. This decision supports the view that civil case cannot be remanded back to the Court below in order to decide any question of fact which was not properly pleaded and no evidence was let in by the parties in support of the said plea.
31. WhlleconsideringOrder41,Rule 23, C.P.C. Their Lordships of the Supreme Court in Ashwinkumar K. Patelv. Upendra, J. Patel ( "In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other, it could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available."
In the instant case, learned counsel for both sides have admitted that the Second Appeal need not be remanded back to the Court below and this Court itself can look into the relevant materials available onrecord and pass a judgment in accordance with law.
32. At the time of admission of the Second Appeal, six substantial questions of law have been framed and in addition to that, as requested by both parties one more additional substantial question of law has been framed in this Second Appeal.
33. To appreciate the case of respective parties, it is better to state the facts in nutshell without offending the provisions of Section 100, C.P.C. and al the same time by utilising the provisions of Section 103, C.P.C.
34. Originally, 'A' and 'B' schedule properties belonged to one Arumuga Perumal Moopanar. One Balkish Ammal filed O.S. No. 16 of 1949 before the Subordinate Judge, Ramnad District at Madurai against him and obtained a decree and subsequently in E.P. No. 50 of 1959, the properties were brought in Court auction on 4-1-1960 and Balkish Ammal herself purchased the property for Rs. 23.301 in the Court auction sale and the sale was confirmed by the Court on 4-1-1960. Balkish Ammal took possession of the suit properties shown under item Nos. 5, 6 and 7 of the sale certificates and also other properties. Baikish Ammal had two sons by name Mohammed Ebrahim, and Mohammed Ismail and she executed agift deeds Exs. A14 and A15 dated 3-5-1969 in respect of undivided half share in 86 cents in favour of Ismail and Ebrahim respectively. The gifts were acted upon and Ebrahim and Ismail were in possession and enjoyment of the properties, on 1-9-1983 Ismail and Ebrahim executed Ex. A4 sale deed selling 20 cents of the said property ('A' schedule ) in favour of one Subramaniam and delivered possession to him. Subramaniam in turn sold the property under Ex. A5 sale deed in favour of of the plaintiff Arjunaraja who has taken possession of the property. Mohammed Ibrahim died. His wife and children were in possession of the remaining properties conveyed under Ex. A-15. The plaintiff by a registered sale dated 17-8-1984 purchased the said property from them. Similarly, he has also purchased the other half share from Mohammed Ismail on the same day under Ex. A8 and thereafter he became the owner of 66 cents of land shown under 'B' schedule also. 35. The defendant/appellant has contended that he purchased the properties under 9 sale deeds marked as Exs. B2 to B10 and since then he hasbeen in possession and enjoyment of those properties which includes 'A' and "B' schedule. In order to prove his possession, he has relied on Exs. B-18 to B-23 and also Exs. B-16 and B-17 Approved Plans to prove the construction of building in the said property . The parties face difficul-tiesbecause of the failure to state the boundaries of the lands purchased by each one of them undervaiious documents. The respondent/plaintiff has contended that the properties purchased by him are comprised in Adangal Nos. 122, 123 and 124 whereas the defendant had contended that he has purchased 1 acre and 86 cents ofland in Adangal Nos. 122, 123 and 124. The parties relied on various documents and itwas the contention of the parties that the documents were not properly considered and construed by the Courts below. The trial Court dismissed the suit on the ground that the plaintff/respondent has failed to locate the property properly and that the defendant/appellant herein has proved his possession over the said property by showing the construction put up by him on the said land, however, the first appellant Court has reversed the findings of the trial Court, and according to the appellant herein, the first appellate Court reversed and interfered with the findings of the trial Court on the grounds that (1) the defendant has not examined his vendor, and (2) that the original sale deeds were not filed by the defendant. Learned counsel for the defendant/appellant herein has elaborately argued the case on the basis of documents and concluded his arguments saying that the lands shown under 'A' and 'B' schedule properties were purchased by the appellant and they are in his possession and enjoyment and that the plaintiff/respondent who has neither proved his title nor possession, is not entitled to the relief prayed for by him. Learned counsel for the appellant further added that the reasons stated by the first appellate Court are not in accordance with law and the same is liable to be corrected in the appeal. The reason stated by the first appellate Court is that the appellant herein has not examined any of the predecessors in title who had sold the properties in favour of the appellant under Exs. B2 to B10. The first appellate Court has construed the position of law, that it was for the plaintiff/respondent to prove his case and it is not for the appellant/ defendant to prove his contention by examining the vendors of the said documents. Further, it was argued that even as per the documents produced by the appellant herein, he has made out a clear case for his title, possession and enjoyment of the suit property and without looking into the said documentary evidence, the lower Court has relied upon the oral evidence of the vendors. One of the reasons stated by the learned counsel for the appellant that the first appellate Court should have arrived at its conclusion on the basis of the case of the plaintiff and not on the weakness of the case of the defendant/appellant. The next reason stated by the first appellate Court is that the appellant herein has not produced any original documents in order to substantiate his case whereas the plaintiff has produced all original documents.
36. Learned counsel for the appellant has relied on a decision of this Court in Karuppanna v. Kolandaswami, , wherein it was held (para 4) --
"When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57. Sub-section (5) of the Registration Act, without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. As the certified copy obtained from a Registrar's office is admissible under Section 57(5), Registration Act, for the purpose of proving the contents of the original documents, the mere production of such copy, without any further oral evidence to support it, would be enough to showwhat the original document contained."
37. In Subudhi Padhan v. Raghu Bhuvan, . It was held (para 8) -
"A certified copy of a registered mortgage deed may be admissible in evidence under Section 65(e) Evidence Act, as secondary evidence but that does not dispense with the proof of actual execution."
38. In Padmanabhachari v. Sithpathirao (1954) 2 Mad LJ 75. It was held --
"The certified copy is therefore, admissible under Section 65(e) and (f) of the Evidence Act. The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar' office. Again by invoking Section 57(5), the said copy becomes admissible for the purpose of proving the contents of the original document itself."
39. From these decisions, the certified copies of the documents obtained from the Registrar's office are admissible and though they are secondary evidence, it cannot be said that they are totally inadmissible and cannot be relied upon by the Courts. Though the reasons stated by the first appellate Court are not acceptable, we have to consider the question of law on the basis of the documents.
40. Learned counsel for the appellant has" relied upon the documents filed by the appellant and argued that Exs. B-2 to B-10 show that the appellant has purchased the suit properly and he has been in possession and enjoyment of the property. Learned counsel further argued that the first appellate Court has not considered the possession of the property on the date of filing of the suit. Exs. B14 to 24 show that the appellant has construted building on the suit property and he has been paying the tax to Rajapalayagam Municipality, whereas the respondent/plaintiff has not filed any such documents to prove his possession and enjoyment of the property. Learned counsel for the appellant has pointed out that in Ex. Al the name of Arugama Perumal is shown and that alone will not give any right to the respondent, as Patta is not a document of title. He has further pointed out that under Exs. A 2 and A3 the boundaries of the property sold under Court auction are not given and the boundary shown under Exs. A5, A-7 and A-8 differ with the boundaries shown under Ex. A4. He has also pointed out that the boundaries shown under Exs- A22 and A25 do not tally with the present boundaries and without showing the boundaries, the respondent/ plaintiff cannot locate or Identify the property in G.R. No. 1278/11, the total extent of which is nearly 1 acres 48 cents. As per Ex. B11 settlement Zamabandhi Chitta, it is shown that the appellant is entitled to 0.59.5 ares in G.R. No. 1278/11.
41. Learned counsel heavily relied upon Ex.B1 order passed by the Tahsildar Rajapalayam dated 14-3-1985. The plaintiff's vendor Subramaniam has sent an application to the Tahsildar, Rajapalayam to include his name as a joint pattadar in G.R. No. 1278/11 and the then Tahsildar by his order dated 2-12-1983 allowed the said application and Included Subramaniam as one of the joint pattadars in respect of the land in G.R. No'. 1278/11. The appellant herein filed an appeal before the Revenue Divisional Officer, Slvakasi and the Revenue Divisional Officer set aside the order of the Tahsildar on two grounds (1) the appellant Madasamy Thevar was not examined by the Tahsildar. (2) on the basis of the documents, the Tahsildar failed to see the actual land to find out whether the parties are entitled to any land in G.R. No. 1278/11. As per the directions given by the Revenue Divisional Officer for further enquiry, the then Tahsildar Rajapalayam after following the decision of the Revenue Divisional Offier passed his order dated 14-3-1985 which is marked as Ex. B1. Learned counsel for the respondent has pointed out the orders of the District Revenue Officer under Ex. B18 wherein he has held that since the present suit was pending in Civil Court, the judgment and decree passed by the Court should be considered and thereafter, the Tahsildar can pass orders regarding the grant of joint patta in the name of Subramaniam. the plaintiffs vendor. Learned counsel for the respondent has contended that since the District Revenue Officer under Ex. A 18 has set aside Ex. B1 order, the appellant cannot rely upon Ex. B1. It was argued on the side of the appellant that though the order was set aside awaiting the decision of the Civil Court, there is nothing wrong in looking the order, as the Tahsildar has visited the properties in question and also has given his order after going through the various documents filed by the parties. When we peruse Ex. B1 and Ex. A18 it is clear that Ex. B1 was not set aside by the District Revenue Officer under Ex.A18 after considering the merits of the documents and it was an order passed awaiting the decision of the Civil Court. Ex. Bl can be taken into consideration to a limited extent and the fact remains that the Tahsildar after visiting the said properties and also considering the various documents has come to the conclusion that the properties of the respondent do not lie in G.R. No. 1278/11.
42. Learned counsel for the respondent has pointed out that the plaint averments give the entire particulars regarding the source of title of the respondent. Under Ex.A2 item Nos. 5, 6 and 7 are the suit properties herein and in Exs. A4 and A5, G.R. No. 1278/11 is given and apart from that in Ex. A5 Adangal 122, 123. 124arealsogivenandthosearealr reasons which made the first appellate Court to set aside the findings of the trial Court and to pass a judgment and decree in favour of the respondent. Learned counsel for the appellant has argued that G.R. No. 1278/11 comprised of nearly 20 acres of lands and therefore, the respondent cannot rely much upon G.R. number and it is for the plaintiff to identify the lands. Without proper identification, no decree can be passed in his favour.
43. When we consider the substantial questions of law framed by this Court, at the time of taking the Second Appeal on hie, the first question is in respect of Order 41, rule 31. C.P.C. The said rule deals with content, date and signature of judgment. Order 41, Rule 31(a). C.P.C. deals with the "points for determination". Learned counsel for the appellant has argued that the first appellate Court has not framed the proper points for determination in the appeal whereas the only point framed is omnibus in nature. The only point raised by the first appellate Court is whether thejudgment and decree of the trial Court are to be set aside and the appeal to be allowed ? it would have been better if the first appellate Court has framed sufficient points for its consideration in the appeal. However, though sufficient points are not framed for determination, the first appellate Court has considered all the relevant questions raised by the parties in the first appeal and also oral and documentary evidence and thereafter has come to the conclusion of reversing the judgment and decree passed by the trial Court. In such circumstances, as the relevant points are all considered by the first appellate Court, it cannot be said that the said Court has not followed Order 41, Rule 31(a), C.P.C.
44. In a suit for declaration of title and consequential injunction, the initial burden or his right over the properties and also his possession is on the plaintiff. Learned counsel for the appellant has argued that the trial Court has rightly considered those points and held that the plaintiff has not proved his title as well as possession to the property and dismissed the suit. The first appellate Court has taken a different view and thereby it allowed the appeal and decreed the suit in favour of the plaintiff for declaralion and injunction. As far as the Second Appeal is concerned, though the appellant is the defendant, yet the respondent, as plaintiff has not prove his title and possession of the property, otherwise the decree passed in his favour by the first appellate Court cannot be confirmed. In a suit for declaration of title and for consequential injunction, it is the duty of the plaintiff to prove his case and he cannot place any reliance on the loopholes in the case of the defendant. In the instant case. the appellant has filed documents to prove his possession and the Court below without considering the various documents filed by the appellant has granted permanent injunction in favour of the plaintiff. Learned counsel has argued that possession follows title and since the possession is with the appellant who has filed number of documents to show (sic) in possession and enjoyment of the property apart from his title, the first appellate Court ought not to have disturbed the well considered findings of the trial Court. Exs. B13 to B24 show that the appellant is in possession and enjoyment of the property. He has also produced Exs. B1 to B10 and B12 title deeds in his favour to prove his title to the property. By placing reliance on these documents, learned counsel further contended that as the defendant has produced number of documents to prove his title and possession of the suit property the suit filed by the plaintiff was rightly dismissed by the trial Court, whereas the first appellate Court erred in allowing the appeal without any basis whatsoever. Learned counsel for the respondent/plaintiff has argued that he has proved his title and possession through documentary and oral evidence, since the first appellate Court has found that the plaintiff has title to the property and also he is in lawful possession of the same and it has reversed the findings of the trial Court and allowed the appeal. Both of them cannot have title to the same property so also possession. The real dispute between the parties is the location of the property and also the identification of the same through documents. In a Second Appeal, once again the question of fact cannot be gone into, however, the additional question of law framed referring Section 103, C.P.C. would give a helping hand in solving the dispute between the parties. The various decisions stated supra would go to show that this Court can consider the case of the parties as a whole in the SecondAppealand there is no bar weighing the documents available in the case.
45. It was argued on the side of the appellant that the title without possession of the property will not give any right to an party to get consequential injunction from a Court of law. It was further contended that on the basis of the various documents filed by the respondent, he cannot get an injunction restraining the appellant, since the actual possession is with the appellant. The appellant has relied upon the judgment of the trial Court and argued that the said Court has come to a correct conclusion that the plaintiff/respondent has not proved his title to the suit property and such a finding was interfered with by the first appellate Court on unacceptable grounds. Learned counsel for the respondent/plaintiff has argued that the appellant has produced various documents to prove his title through his predecessors since 1943. In the written statement, there is a specific plea by the appellant herein that the documents of the plaintiff do not contain G.R. No. 1278/11 and all those documents cannot be taken to prove that the suit property was conveyed in those documents. PW 4 has stated that Adangal Nos. 122, 123 and 124 are to the total extent of 20 acres whereas G.R. No. 1278/11 is to the total extent of 1 acre 48 cents.. His evidence further shows that patta No. 260 stands in the name of Ebrahim and Ismail and Madasamy, the appellant herein. The defendant has filed Ex. B14, the ground plan of G.P. No. 1278. wherein sub-division No. 11 has been shown. The respondent/plaintiff has filed property tax receipt s Exs. A16, A17, and A20 where neither Adangal Number nor G.R. Number is shown. Ex. A10 tax receipt stands in the name of the respondent's vendor Subramaniam also do not contain G.R. Number of Adangal Number. Ex.All is after suit. Exs. A2 and A3 do not contain the boundaries of the property conveyed. It was also pointed out by learned counsel for the appellant that there is difference between boundaries of the land in south, north and west shown under Exs. A4 and A5. Exs. A7 and AS. the title deeds of the respondent for 'B' schedule property, contain the name of the appellant in the schedule as "North of Madasamy's land". Ex.B1 the order passed by the Tahsildar shows that the respondent/ plaintiff has no right in G.R. No. 1278/11. Under Ex. B18, the District Revenue Officer set aside the order on that ground since the present suit was filed at that time and therefore, the. Distirict Revenue Officer has stated that subject to the result of the civil suit, the name of the successful party can be entered into in the revenue records. The fact remains thai in Ex. B1, the Tahsildar has verified the documents of both parties as also the actual ground by Inspecting the place and thereafter has come to the conclusion that the respondent/plain tiffs documents do not show that he has not got any title in G.R. No. 1278/ 11. As already stated, it is for the plaintiff/ respondent to prove his case and he cannot rely upon the inconsistency or loopholes or insufficiency of materials in the case of the defendant. As it is abundantly clear that the plaintiff/respondent has failed to prove his clear title to the property, he is not entitled for the declaration and the decree passed by the first appellate Court cannot sustain.
46. The main contention in substantial question of law (Nos. 5) is that even though the relief of declaration is granted in favour of one party when the actual possession is found in the hands of the other party whether a consequential Injunction can be granted in favour of the party in whose favour a decree for declaration is passed. Such a question is very general. In a civil suit wherein parties claim the property either under title or of possession or of bolh, the appropriate relief has to be given on considering their claims. In the present suit, both parties claim ownership in respect of the same property and the defendant/appellant has furnished Exs. B16 and B17 to prove that he has constructed the building in the said property with the approval of Rajapalayam Municipality. Exs. B18 to B 23 show that he has paid property tax for the said property. The evidence of DW 1 would go to show that he has constructed a small Mill under the name and style Thiruvalluvar Mill" and also constructed quarters for the workers working in the Mill. The actual possession is with the defendant/ appellant and not with the plaintiff/respond-ent. As far as this case is concerned, no declaration can be given to the respondent/plaintiff and therefore, he is not entiled to any consequential injunction.
47. When we consider the substantial question of law (No. 6), it is also a question of general importance and when we decide the case of parties on the basis of evidence available on record by applying the law on that point, the various questions of general im--portance need not be considered, unless such situation arose in any particular case. In the instant case, on such situation has arisen to decide no a question of genera! nature and both the parties have produced volumious documentary evidence to prove their title to the suit property. As far as possession is concerned, the appellant has produced substantial documents than the respondent. What ever may be the amount to evidence produced, it is only the quality or essence of such evidence which is necessary to decide the actual issue which has arisen in a particular case. However, it is well settled that it is not the quantity but the quality of evidence which gives a helping hand to get any appropriate relief by the parties.
48. While considering the additional issue, we have given substantial reasons in the foregoing paragraphs basing on the decisions of Their Lordships of the Supreme Court and any such question of law which is necessary for deciding the right of the parties on the basis of documents can be considered by the High Court in the Second Appeal. The various reasons pointed out by the Supreme Court are also stated in the foregoing paragraphs and in accordance with such decisions, the case of the parties herein are considered to arrive at a conclusion on the basis of the questions of law.
49. The substantial questions of law framed in the Second Appeal are answered in the foregoing paragraphs and accordingly, the judgment and decree passed by the first appellate Court is liable to be set aside.
50. In the result, the judgment and decree in A.S. No. 91 or 1989 on the file of the Subordinate Judge, Srivilliputhur are set aside and that of the trial Court are restored and the Second Appeal is allowed, accordingly. In the circumstances of the case, the parties shall bear their respective costs throughout.