Samikannu Chettiar and others vs Armugha Chettiar

Prabha Sridevan, J.—The lower appellate court had remanded the matter for framing an issue with regard to adverse possession and ouster and for letting in evidence in respect of certain documents that were produced pending appeal. This appeal is against the order of remand. The petitioners are the defendants/to 5 and 7 to 1 in the suit O.S. 181/91 filed by the respondent herein. The suit was for declaration of title, for possession and for interim injunction. The case of the respondent is that the suit property originally belonged to his father Ratna Chettiar (RC) and his there brothers Rangasamy Chettiar, Velayudha Chettiar and Narayanasamy Chettiar (NC and 2nd defendant in the suit) The four brothers divided the properties on 10.10.1957 under a registered partition deed. A registration copy of this deed is marked as Ex.A/A, B, C and D schedule properties were allotted to each of the parties and E schedule property in Ex.A) was kept in common. It is the respondent''s case that if any one of the sharers lost any item allotted to his share, the other sharers shall compensated for the said loss or the sharer who lost can be compensate from E schedule property. It is the case of the respondent that RC lost about three items of properties that were allotted to him and therefore, his three brothers agreed that RC should take E schedule property absolutely. This was in 1965. From that date, RC had been in possession and enjoyment of this property paying kist, patta etc. RC had two sons, the respondent and one Ramaswamy Chettiar. They entered into a partition under a registered partition deed dated 17.11.1987 This document is marked as Ex.A11. Under Ex. A11, the suit property was allotted to the share of the respondent. According to the respondent, he is in possession and he has prescribed title by adverse possession and ouster. There is a long standing enmity between the respondent''s family and the petitioners and since there was interference with possession, the suit was filed.

The Trial Court framed four issues:

Whether the suit property is the separate property of the plaintiff?

Whether the suit is bad for non-joinder of necessary parties ?

Whether the plaintiff is entitled to declaration and permanent injunction ?

To what other reliefs, is the plaintiff entitled to?

The suit was dismissed holding that the E schedule property is not the respondent''s separate property but remained a common property. Against that, the respondent filed A.S. 104/96. Alongwith this, he filed three applications, I.A. Nos. 162/97, 166/97 and 163/ 99. The learned Subordinate Judge, Panruti dismissed I.A.162/97, but allowed I.A.166/ 97 and 163/99. Thereafter, the learned Judge held that since these documents have been received, the parties should be given an opportunity to let in oral evidence relating to these documents. The learned appellate Judge also found that since the trail Court had failed to frame an issue regarding ouster this should also be done and a finding given regarding this issue. So holding, the learned appellate Judge remanded the matter to the trial Court for deckling the matter in accordance with law after giving opportunity to either parties and after framing an issue regarding adverse possession and ouster.

Mr. K. Kannan, learned counsel for the petitioners submitted that the order of remand is illegal and that the appellate Judge had not even set aside the finding of the trial Court that the E schedule property continued to be enjoyed in common nor had it accepted the case of the respondent that he was in exclusive possession of the E schedule property either pursuant to the oral understanding or adverse to the rights of the other sharers. In these circumstances, it was not open to the Court below to remand the matter for fresh disposal in accordance with law. He also referred to the order passed in I.A. 166/97 and 163/99 and submitted that the Court below failed to see that under Order 41 Rule 27, the Madras amendment requires the appellate Court to be satisfied that the evidence could not be produced earlier before the decree under appeal was passed. He relied on the following judgements: 20GG(IV) CTC 658 (Ananthachari, S. N. v. A. C. Rajagopalan) and 1997 (II) C.T.C. 313. (Ignasiammal v. Mrs. Fathima Beeva).

Mr. Gururaj, learned counsel for the respondent on the other hand submitted that there was no error in the approach of the Court below. All the documents that were sought to be produced before the Court under I.A.166/97 and 163/99 were obtained only during the appeal and therefore, the provisions of Order 41 and Rule 27B was satisfied. He referred to the following judgments:

(i) Amiappa Nainar v. Annamalai Chettiar (1972 (1) MLJ 317 = (1971) 84 L.W. 691) to show how the document referred to in I.A. 163/99 which is a sale deed dated 24.3.1977 was relevant;

(ii) A.P. Wakf Board and others Vs. Mirza Nizamuddin Baig and others, where, for want of evidence, the Supreme Court remanded the matter to the trial Court for fresh disposal;

(iii) Raja Kamala Ranjan Roy Vs. Baijnath Bajoria, in which the Supreme Court held that when appellate Court allows additional evidence to clear up certain matter and for arriving at a proper decision, no interference is warranted in the exercise of the Court''s decision;

(iv) K. Venkataramiah Vs. A. Seetharama Reddy and Others, in which the Supreme Court held that the provision to record reasons for admitting evidence in the appellate stage is not mandatory and a failure to record reasons will not vitiate such admission;

(v) State of West Bengal Vs. The Dalhousie Institute Society, to show that when the commencement of possession was found to be illegal, then such possession was prima-facie adverse;

(vi) The Premier Automobiles Ltd., Bombay Vs. Kabirunissa and others, in which the Supreme Court remitted the case to the appellate Court for fresh decision after receiving the additional evidence;

(vii) Collector of Bombay Vs. Municipal Corporation of The City of Bombay and Others, was referred to, to show how the question of adverse possession should be decided;

(viii) Muthuveeran Chetty Vs. Govindan Chetty, was relied on to show that when joint family property is allotted to one member, no transfer of property is involved and therefore, no document in writing in support of the assignment is required u/s 113 of the Transfer of Property Act.

I do not intend to go into the question of whether the respondent is entitled to plead adverse possession when his case that he was given E schedule property by agreement was rejected by the trial Court. That should be decided by the Court on fact. Nor do I intend to go into the question whether E schedule property was given by the other brothers to the respondent under an agreement not set down in writing. The question mainly urged here is with regard to the legality of the order of remand and the order passed for receiving additional evidence. As regards the documents that were sought to be produced in evidence under I.A.166/ 97 and 163/99, the Court below had found that all those documents were obtained by the respondent only after the trial Court had disposed of the suit and the Court was satisfied that the non-production of the documents earlier was not because the respondent lacked due diligence. There, I do not think, the exercise of discretion by the appellate Court in this regard is in any way illegal or irregular.

Even with regard to the documents produced under I.A.163/99, the Court was satisfied that not only that they were public documents, but also that they related to the suit properly and were necessary for deciding the issue. Therefore, the decision of the appellate Court with regard to I.A.163/99 is also not interfered with. It is always open to the petitioner herein to demonstrate that these documents though produced are either not relevant or do not in any way advance the case of the respondent and most importantly that they have not been proved in accordance with law. The receipt of those documents cannot be shut out at the threshold.

With regard to the order of remand, the appellate Judge has found that no issue was framed with regard to ouster. No doubt, the respondent had pleaded adverse possession. But, it is not enough merely to plead adverse possession and he should also prove them. If the evidence on record is sufficient to support his case of adverse possession and ouster, the appellate Court has the power to determine them. The omission to frame an issue relating to ouster cannot be] considered fatal to the case, unless the appellate Court had on examination of the materials before it found that because of the failure to frame the issue the parties had proceeded with the trial without knowing that the question of ouster was an issue to be decided and had therefore not adduced evidence in this regard. No such exercise by the appellate Court is evident here. The mere production of additional evidence appears to have convinced the appellate Court of the necessity to remand the matter. If the parties had been fully aware of this case, then there is no prejudice. Order 41 Rule 27 C.P.C empowers the Court to allow not only documentary evidence but also oral evidence if the conditions stipulated therein are satisfied.

In the decision reported in 2000 (IV) CTC 658 (Ananthachari S.N. v. AC. Rajagopalan), it was held thus:

"While allowing the I.A. No.61 of 1998 filed under Order No:41, Rule 27 of the C.P.C., the appellate Court observed that for inadequacy of evidence plaintiff�s 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 considered.

While doing so, the appellate Court has miserably failed to take into consideration the requirements of Order 41, Rule 23 regarding remand. As well pointed out in the judgement reported in Ignasiammal v. Mrs. Fathima Beevi and another, 1997 (II) C.T.C. 313, 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 consideration or norms applied by the first appellate Court and in fact the discussion of the fist 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.

In the decision repotted in 1997 (II) C.T.C. 313 (Ignasiammal v. Mrs. Fathima Beevi), it was held thus: The observation of the learned Subordinate Judge that the evidence adduced by the plaintiff and the defendants does not support their respective case cannot be a ground for remanding the suit. It has been held in the decision reported in Visalakshmiammal v. Dhanalakshmiammal, 1989 (2) L. W. 414 that the unsatisfactory consideration of an issue by the first court, and the non-advertence to the judicial precedents by the first court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacunae, if in fact they are present, can be rectified by the appellate court itself. Therefore, even if the evidence of P.W.1 and D.W.1 does not establish their respective rival contentions, it can be rectified by the appellate court itself and the matter need not be remanded to the trial court.

The case relied on by the learned counsel for the petitioners is squarely on the point. If the appellate Court, on the materials before it, finds that though the issue relating to adverse possession and ouster has not been framed, yet, there are materials sufficient to decide the issue and still comes to the conclusion that the trial Court''s finding that the respondent is in possession not in- his own right, but only on behalf of the joint family, is correct then, the order of remand is an unnecessary exercise. The decisions cited by the learned counsel for the petitioners and extracted in the paragraph above are squarely on the point. The impugned order is therefore set aside. The matter is remanded to the Sub Court, Panruti. The first appellate Court is directed to consider the materials before it in view of his framing the issue regarding adverse possession and ouster and dispose of the appeal in accordance with law. The C.M.A is allowed. No costs. CMP 6965/ 2000 is closed.