Kunju Pakiam vs Krishnan Nadar and Others

Madhavan Nair J.

These appeals are by the plaintiff and the 3rd defendant respectively, against an order of remand made by the Principal Subordinate Judge, Trivandrum. The facts of the suit are thus: The piece of land bearing Survey No. 2034, Aramada Village, 2 acres 40 cents in extent, belonged in 1/3 share to Padmanabhan Padmanabhan, 1/3 to Math Evan Krishnan and Math Evan Padmanabhan and the remaining 1/3 to Yapping Arabian, Yapping Madam and Yapping Padmanabhan. The first named three persons instituted O.S. No. 544 of 1057 in the Additional Munsif''s Court, Trivandrum, against the latter three for separation of their 2/3 shares in the property. Ext. P. 18 is a copy of the decree and Ext. P. 17, a copy of the execution proceedings in that case. They show that the suit was decreed on 21-12-1058 as prayed for, that the appeal and second appeal were dismissed with costs, that in execution a commission was issued on 6-11-1070 to divide the property by metes and bounds and to deliver the decree-holders'' 2''3 in specific plots and that the commissioner did so and submitted his plan of division, report of delivery and the delivery cyclist in Court on 2-12-1070 and the court accepted the same and struck off the application for execution as been satisfied on 25-12-1070. Ext. P. 1 is an attested copy of the plan dated 17-11-1070 prepared by the commissioner for the above purpose.

The heirs of Math Evan Padmanabhan assigned their share to Math Evan Krishnan as per Ext. P. 2 dated 18-10-1093; and the son of Math Evan Krishnan assigned all his interests to the plaintiff as per Ext. P. 4 dated 27-1-1117. Ext. P. 8 dated 20-8-1118 is the release of a prior mortgage and Ext. P. 7 dated 6-9-1118 the release of a prior lease of the property obtained by the plaintiff. The share of Padmanabhan, Padmanabhan devolved on his two sons, one of whom assigned his share to the 4th defendant in 1119. The heirs of the other son of Padmanabhan Padmanabhan, the plaintiff and the 4th defendant entered into a partition evidenced by Ext. P. 8 dated 5-5-1122 as per which the plaint A schedule property was allocated to the plaintiff and the Plaint B schedule property to the 4th defendant. On 25-10-1956 while the plaintiff was away at his place of employment, defendants 1 to 3 trespassed on a portion of the plaint A and B schedule properties and put up a temporary shed thereon. The suit was instituted by the plaintiff on 5-11-1956 for a declaration of his right to the plaint A schedule property and for removal of the trespass thereon by defendants 1 to 3.

The 3rd defendant contended that the suit O.S. No. 544 of 1057 did not concern the suit property or the owners thereof, that the entire Survey No. 2034 belonged to Yapping Aretha, that the same has been got assigned by himself and his brothers defendants 1 and 2 and that the plaintiff has no right in the plaint A schedule property.

The Munsif rejected Ext. D8 which is a copy of the decree in O.S. No. 544 of the Principal Munsif''s Court as different from Ext. P.18 copy of the decree in O.S. No. 544 of 1057 of the Addl. Munsif''s Court, held the contention that Yapping Aretha was the sole owner of the entire Survey No. 2034 barred by the decision of that very question in O.S. No. 1438 of 1119 against the present defendants 1 to 3 and their father and the title and possession of plaint A schedule property vested in the plaintiff and therefore decreed the suit in regard to the plaint A schedule property with costs. The 3rd defendant appealed to the Principal Subordinate Judge, Trivandrum, who set aside the decree and remanded the suit for fresh trial. Both the plaintiff and the 3rd defendant, being dissatisfied with the disposal of the appeal by the Subordinate Judge, pray in these Civil Miscellaneous Appeals to discharge the same and remit the appeal for fresh disposal according to law.

The Subordinate Judge framed the points for determination in the appeal thus.

The points for determination are

(1) Whether there has been a proper judgment by the Court below enabling a proper appellate judgment by this Court ?

(2) If so, whether the respondents proved beyond doubt that the suit properties were directly involved in the two suits referred to in the plaint ?

(3) Whether he proved physical possession of the property described in the plaint A schedule on the date of suit and the act of trespass attributed to the appellant?

Discussing point No. 1, he catalogued several ''should hive''s on the part of the plaintiff and on the part of the Munsif, blamed the Munsif to have judged the case in a ''perfunctory manner'' and to have "reached his conclusions through a meandering process of defective reasoning", and, without entering any discussion of the evidence on record, concluded "I am therefore unable to write an appellate judgment and answer the point accordingly in the negative", held points Nos. 2 and 3 not to arise in the appeal and therefore allowed the appeal with costs, set aside the judgment and decree and sent back the suit to the court below for fresh trial.

An appellate court in India is a court of appeal on facts as well as law, and the appeal, is a rehearing of the case:

Hukumchand Sarupchand v. Handsaw Hajji (1938-2 M.L.J. 966) and at the hearing of the appeal it is for the appellant to show that the decision of the trial court is wrong:

Mt. Farinose v. Moulin Saris Sadie (A.I.R. 1921 P.C. 55) AIR 1936 34 (Privy Council) ;

and his onus would not be discharged by showing merely that a contrary conclusion is possible on the evidence on record.

The Munsif has in his judgment given reasons for his conclusions on the various issues in the case. If the Subordinate Judge differed from those conclusions he could have entered his own findings and reversed the decree. The "points for determination" set by him show clearly that he was not prepared to go into the evidence on record to see if it justified the conclusions of the Munsif. If the conclusion was right, even if the reasoning given therefore was not satisfactory, the appellate Judge ought to accept the decision giving his own reasons therefor. A total refusal to advert to the evidence on record by the court of first appeal is an abdication of its function and duty. It is not the duty of the court to advice any party as to how he should have framed his pleadings or adduced his evidence in the case. "The decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found". Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, . The Subordinate Judge observes:

There was no satisfactory averment in the plaint explaining the delay (of 10 days) between that alleged act of trespass and the suit.............. There was also no reference in the plaint to the exact manner in which this alleged act of trespass was noted, by the respondent or the steps, which he took immediately to prevent the same at the proper time. Nothing was produced to prove the complaint to the Police and its result. The allegations in paragraphs 7 and 8 of the plaint in this regard left very much for substantive evidence to prove them

One can understand these observations if made, in the course of a discussion of the evidence on record, to belittle the weight of the plaintiff''s evidence. But, as the Subordinate Judge has not uttered one word on the evidence on record, these observations are totally unwarranted. The appellate judgment directs:

The respondent will apply for a commission for local investigation about the property now involved and for identification thereof as against the properties involved in the previous litigation, if so advised. If he does not apply for that purpose, the learned Munsif is directed to write a fresh judgment upon the evidence now on record and enter clear findings upon all the material issues including issue 8 relating to court-fee

When the Subordinate Judge has not cared to advert to the description of the property in the decree in "the previous litigations" to feel any doubt in the identity thereof with the suit property in the present case, or found any one finding of the Munsif to be not clear, or the court-fee levied on the plaint insufficient, all the directions and observations, quoted above, are out of place. The epithets ''perfunctory'' and ''meandering'' used by the Subordinate Judge in regard to the Munsif''s judgment and reasoning were quite unwarranted and misused in the context.

The first point for determination set by the Subordinate Judge which is the only point decided by him, appears rather strange. It betrays an emotional approach to the case rather than a factual one. The aim and purpose of an appeal seem to have been overlooked in the framing of such a question as the material point for decision in the case. His finding thereon:

I am, therefore, unable to write an appellate judgment and answer the point accordingly in the negative

savors abdication of the functions of an appellate Judge in him. A Judge is bound to decide every case presented before him for adjudication, unless it be beyond his jurisdiction. In so deciding he has to give his reasons for such decision and that forms his judgment. It is not consistent with his office to express inability to write a judgment. I am constrained to set aside the judgment of the Principal Subordinate Judge and direct the Judge now in office at the station to restore the appeal to his file and dispose of the same afresh. As both the parties to the appeal in the court below are aggrieved by the judgment of the Subordinate Judge, which appears to be of his own initiative, I make no order as to costs in either appeal.