Munivel vs Munusamy Mudaliar and Others

AR. Lakshmanan, J.—Heard both sides. The appeal is directed against the judgment and decree of learned Subordinate Judge of

Tindivanam dated 31.10.1989 in A.S. No. 76 of 1987 which was preferred against the judgment and decree in O.S. No. 489 of 1982, dated

30.4.1987 on the file of learned District Munsif Court, Tindivanam.

The first respondent herein filed O.S. No. 489 of 1982 on the file District Munsif Court, Tindivanam, against the appellant''s mother

Veeralakshmi Ammal who died pending the suit stating that he is the absolute owner of the property by purchase under the sale deed dated

26.6.1962, that though the sale deed is standing in the name of the mother of the appellant, she was only a benamidar for his benefit. Hence the

appellant disputed the title of the first respondent and the suit was necessitated. The appellant resisted the suit contending that the suit properties

were purchased by his mother out of the fund provided by his father, that the respondent who is none other than the appellant''s sister''s husband

was cultivating the land on their behalf for some years and taking advantage of the same, he is trying to set up title with himself.

The trial court held that the case of benami set up by the first respondent is not true and that the appellant''s mother is the absolute owner of the

suit property and in this view, dismissed the suit.

The lower appellate court though concurred with the finding of the trial court that the case of benami set up by the plaintiff/respondent is not true,

however, remanded the matter to the trial court with a direction to give a finding on the plea of adverse possession. Aggrieved against the judgment

and decree, the appellant has filed the above civil miscellaneous appeal.

I have heard Mr. A.K. Kumaraswamy, learned counsel for the appellant and Mr. M.N. Muthukumaran learned counsel for the contesting party.

It is contended on behalf of the appellant that the first appellate court has failed to appreciate the scope of the suit which was filed for

declaration of plaintiffs title to the suit properties and for a permanent injunction stating that the plaintiff had purchased the properties though the

sale deed stands in the name of the first defendant benami for his benefit.

It is the definite case of the first respondent-plaintiff that he is in possession of the suit property as absolute owner thereof as per the purchase

under Ex. B-1 sale deed and not on the basis of adverse possession.

As already seen, the trial court has considered the evidence of the parties regarding adverse possession and held that the first respondent is not

in possession of the suit properties. It is contended on behalf of the first respondent-plaintiff that the first respondent-plaintiff is entitled to plead

adverse possession since according to him, he is in possession of the property for more than 12 years without any interruption from any quarters

and therefore, he is entitled to claim adverse possession. It is also contended by Mr. M.N. Muthukumaran learned counsel for the respondents that

the plea is not an inconsistent one as argued by learned counsel for the appellant, but is an alternate plea.

I have perused the judgment of the trial court. Though it is contended by the first respondent herein that he has perfected his title by adverse

possession, the trial court has not framed any issue regarding adverse possession. However, the lower appellate court has framed the only point for

determination as to whether the plaintiff has perfected his title by adverse possession.

Order 41, Rule 31 of C.P.C. reads thus:-

Contents, date and signature of judgment:-

The judgment of the Appellate Court shall be in writing and shall state.

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be

signed and dated by the Judge or by the Judges concurring therein.

The Madras High Court Amendment to Rule 31 reads thus:

The Judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appealed is entitled; and shall at the time that it is pronounced and

shall be signed by the Judges concurring therein:

Provided that, where the presiding Judge is specially empowered by the High Court to pronounce his judgment by dictation to a shorthand writer

in open Court the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary be signed by the Judge"" (1917).

In this case, the first appellate court has not conformed strictly to the provisions of Rule 31. This Court has held that the provisions of this Rule

are mandatory. A judgment which does not comply with the provisions of Rule 31 is no judgment in law. The judgment of the appellate court

should briefly but clearly set out the allegations of the plaintiff, the pleas in defence and the findings of the court below on the issues arising out of

the pleadings and then it should give the points for determination the decision thereon and the reasons.

Since the judgment of the appellate court is not in accordance with the provisions of Order 41 , Rule 31 in regard to the formulation of the

points for determination, the judgment, in my opinion, is vitiated. Since the provisions of this Rule are mandatory, the lower appellate court ought to

have considered all the points raised by both parties in the trial court and formulate the necessary points for determination and decide the case on

merits. The law imposes on the appellate court an imperative duty and obligation of giving adequate and satisfactory judgment when reversing a

judgment. The aggrieved party, namely, the appellant in this Court can therefore, demand a consideration of the points on which the lower court

relied when a judgment is one of reversal. The lower appellate court has not discussed the matters which are germane to the points at issue fully.

Since the lower appellate court has failed to do so. I have no other option except to set aside the same and remit the matter to the lower appellate

court to formulate necessary points for determination on the points raised by both sides and dispose of the appeal on merits and in accordance

with law after affording an opportunity to both sides. The judgment of the lower appellate court in A.S. No. 76 of 1987, dated 31.10.1989 is set

aside and the matter is remitted to the lower appellate court for fresh disposal. Since the appeal is of the year 1987, I direct the lower appellate

court to dispose of the appeal within three months from the date of receipt of a copy of this order and records from this Court, positively. Since the

matter is of the year 1987, top priority should be given in regard to the disposal of this appeal.