Subburam vs Irudayam

S. Tamilvanan, J.—This Second Appeal is directed against the Judgment and Decree, dated 30 04.1993 made in A.S. No. 100 of 1991 on

the file of the Subordinate Judge, Srivilliputtur, reversing the Judgment and Decree, dated 30.07.1991 passed in O.S. No. 430 of 1990 on the file

of the Principal District Munsif, Sattur.

The brief facts of the case are as follows:

The appellant in this Second Appeal is the plaintiff in the suit. The suit in O.S. No. 430 of 1990 was filed by the appellant / plaintiff against the

respondent / defendant, before the District Munsif Court, Sattur, for declaration of title over the suit property and for consequential permanent

injunction, restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property by the appellant / plaintiff.

According to the plaintiff, the suit property was originally belonged to one Perumal Naicker and his brother Venkatasamy Naicker. Perumal

Naicker died in the year 1964 without any issues and hence his brother Venkatasamy Naicker enjoyed the property as his absolute property and

died in the year 1970. His only son Selvasubburaj inherited the property and was in possession and enjoyment of the same. In the year 1986,

settlement patta was wrongly issued in the name of the defendant, who owned only the northern property to the suit property and subsequently

after enquiry, the patta was issued in the name of Selvasubburaj, who sold the property to the appellant / plaintiff, under the sale deed, Ex.A1,

dated 16.12.1988. Thereafter, the appellant / plaintiff is paying list in his own name. According to him, since the respondent / defendant had

interfered with his peaceful possession and enjoyment, he filed this suit for declaration and permanent injunction. According to the respondent /

defendant, the suit property is a nattham land, that he spent nearly 15,000/- in the year 1982 towards the development of the land. According to

the respondent / defendant, the suit property is under the possession and enjoyment of the defendant, and that he got patta for the suit property

and spent nearly Rs. 20,000/- for digging a well in the suit property. As the appellant / plaintiff had lands both on the southern side and eastern

side, he could have got patta with incorrect particulars. The respondent / defendant has further stated that the suit property, as natham land is in his

possession and enjoyment since 1973 and hence prayed for dismissal of the suit.

The trial court after considering the oral and documentary evidence and after hearing both sides, decreed the suit as prayed for with costs.

Aggrieved by the Judgment and Decree, the defendant in the suit preferred an appeal before the Sub Court, Srivilliputhur. The said first appellate

court on considering the evidence on record, Judgment of the trial court and after hearing both sides reversed the Judgment and Decree passed by

the trial court and dismissed the suit with costs. Against the Judgment and Decree of the first appellate court, this Second Appeal has been

preferred by the plaintiff.

This Second Appeal has been admitted on the following Substantial Questions of Law:

Whether the procedure adopted by the lower appellate court is right when the same is not in confirmity with Order 41 Rule 31 C.P.C.?

Is the lower appellate court is justified in holding that the plaintiff has not proved his title when Exs.A7, A6, A5, A4 and A1 will clearly prove

the title of the plaintiff ?

Is not the Judgment and Decree of the lower appellate court vitiated by not applying the principles of res judicata to the claim of the defendant

based on the statutory orders under Exs.A4 to A6?

Mr. P. Saravanan, the learned Counsel appearing for the appellant / plaintiff contended that the first appellate court had not followed the

procedure as contemplated under Order 41 Rule 31 C.P.C with regard to points for determination, while reversing the well considered finding of

the trial court, and the appellate court has not given any specific reason for reversing the finding of the trial court. According to the learned Counsel

for the appellant, the first appellate court has not properly considered the documents Exs. A1 to A7. marked on the side of the appellant / plaintiff

and the Judgment and Decree passed by the court below, reversing the finding of the court below is contrary to the evidence available on record.

Per contra, Mr. R. Kannan, the learned Counsel appearing for the respondent / defendant contended that the burden of proving the case is on

the appellant, being the plaintiff, he has not established his case, where as the respondent / defendant has produced his patta and other documents

Exs.B1 to B3, in order to prove his title and possession.

It is not in dispute that the suit property is a punjab land, an extent of 1 acre 37 cents i.e., 0.55.5 hectare in S. No. 409/3 in Nalli village, sattur

taluk. According to the appellant / plaintiff, it was originally owned by Perumal Naicker and his brother Venkatasamy Naicker. Perumal Naicker

died issueless and hence, Venkatasamy Naicker, brother of Perumal Naicker was in possession and enjoyment of the property as absolute owner

of the same and after his death his only son Selvasubburaj was in possession and enjoyment of the property, by way of inheritance and sold the

same to the appellant / plaintiff under the sale deed, Ex,A1. As per Ex.A4, settlement register extract, dated 10.12.1990, the suit property in S.

No. 409/3 punja land of 159, Nalli village has been shown in Patta No. 526 in the name of K. Perumal Naicker and K. Venkatasamy Naicker. As

per the proceedings of the Special Tahsildar (Natham Land Survey), Sattur, dated 14.10.1988, the suit property in S. No. 409/3 was ordered to

be removed from Patta No. 68 and issued patta in the name of Perumal Naicker and Venkatasamy Naicker. In the reference, it has been stated

that the copy of the proceeding was given to the plaintiff and the defendant, though the defendant has pleaded that no notice was served on him.

According to the learned Counsel for the respondent / defendant, though the appellant / plaintiff purchased his property under the sale deed,

Ex.A1 on 16.12.1988, as per Ex.A6, he is said to have given the petition dated 20.05.1988 regarding the change of patta and on that basis the

order, dated 14.10.1988 was passed. But it is seen that patta in respect of Survey No. 409/3 had been issued only in the name of Perumal

Naicker and Venkatasamy Naicker. Subsequently, as per the proceedings of the Tahsildar, dated 04.12.1990, patta in S. No. 409/3 was issued

in the name of the appellant / plaintiff from the name of Perumal Naicker and Venkatasamy Naicker. Hence, the Judgment and Decree passed by

the court below is sustainable in law.

The trial court has given separate finding to all the issues, though jointly discussed the points for certain issues and held that the plaintiff was

entitled to declaration and injunction as prayed for in the suit. Where as the first appellate court has not framed separate points for determination in

the first appeal. The only question framed as point for determination by the first appellate court is whether the first appeal has to be allowed setting

aside the Judgment and Decree passed by the trial Court. As contended by the learned Counsel for the appellant, as per order XLI Rule 31 of the

Code of Civil Procedure, the Judgment of the appellate court shall contain a) the points for determination b) the decision thereon c) the reasons for

the decision, apart from other aspects.

It is seen that the first appellate court has framed only one point for the determination of the appeal is that whether the appeal has to be allowed

and the Judgment and Decree passed by the court below has to be set aside. On the basis of grounds of appeal with reference to the pleadings of

both sides and evidence available on record, the appellate court has to decide the points for determination, especially when the Judgment and

Decree of the trial court is being reversed. I am of the view that the first appellate court could have framed separate points for determining the

issues involved in the appeal and given specific reasons for its findings under Order XLI Rule 31 of the Code of Civil Procedure. Therefore, I am

of the view that the lower appellate court has not decided the points for determination in confirming with Order XLI Rule 31 of the Code of Civil

Procedure.

The learned Counsel appearing for the appellant / plaintiff would contend that the first appellate court has not decided the documents marked

as Exs.A1, A4, A5, A6 and A7, which would clearly prove that the appellant / plaintiff was entitled to the relief of declaration and injunction as

prayed for.

According to the respondent / defendant, the suit property is only a natham poramboke land and he has been in possession and enjoyment of

the same and that he spent nearly Rs. 15,000/- to develop the land and also dug a well in the suit property, by spending nearly Rs. 20,000/-. Had

it been a poramboke land in the occupation of the respondent / defendant, he could have produced the ""B"" Memos issued in his name, to prove his

possession and enjoyment, apart from other supporting documents to show that he had spent Rs. 15,000/- to develop the land. Further, in the

cross examination, the defendant as D.W.1 has admitted that there is no well in the suit property, which is contrary to his pleadings.

The learned Counsel for the appellant / plaintiff contended that the suit property is only a patta land. The UDR patta was wrongly issued in the

name of the defendant, as per Ex.B1, in Patta No. 68 and subsequently, the same was corrected under Ex.A6, dated 14.10.1998. As per the

order of the Special Tahsildar, Natham Survey, Sattur, dated 14.10.1988, S.No.409/3 was deleted from Patta No. 68 and issued change of

patta, in the name of Perumal Naicker and Venkatesamy Naicker. Except, Ex.B1, patta issued in the name of the respondent / defendant, no other

document is available to show the possession and enjoyment of the first defendant in the suit property. As contended by the learned Counsel for

the appellant, Patta is not a document of title.

The respondent / defendant as D.W.1 has admitted in his evidence that he had purchased the land on the North of the suit property, but he has

not produced the sale deed, in order to prove the details about the southern boundary, which is admittedly the suit property, where as the appellant

plaintiff had purchased some other land on the east and Ex.A7, is the certified copy of the sale deed, dated 22.01.1976. The earliest document is

the certified copy of the sale deed of the appellant, whereby the property was purchased by Subburam, the appellant, wherein the Survey Number

is stated as 409/4 and the southern boundary of the property is specified as Perumal Naicker''s land. The appellant / plaintiff who was examined as

P.W.1 has stated that his land is situated on the south and also on east of the suit property and that the northern property to the suit property

belongs to the respondent / defendant. The defendant as D.W.1 has also admitted in his cross examination that the eastern property of the suit

property belonged to the appellant, which was purchased by him under Ex.A7.

In Ex.A1, sale deed, the defendant''s property has been described as the Northern boundary to the suit property and the appellant''s other

properties were stated as eastern and southern boundaries to the suit property. It is not in dispute that Ex.A7, registration copy of the sale deed,

dated 22.01.1976, relates to the property on the east of the property, which was purchased by the appellant / plaintiff, long prior to Ex.A1, sale

deed, wherein, the suit property being its western boundary has been stated as property belongs to Perumal Naicker, who is admittedly the

predecessor in title to the appellant. The case of the appellant / plaintiff is that the land was originally belonged to Perumal Naicker and his brother

Venkatasamy Naicker and that the evidence of P.W.1 and P.W.2 would also show the same. Therefore, Ex.A7, earlier document, dated

22.01.1976, corroborates the plaintiff''s case that the suit property shown, as western boundary to the property is described in Ex.A7, as property

belonged to Perumal Naicker and another, which was subsequently, purchased by the appellant/ plaintiff, under Ex.A1, sale deed, dated

16.12.1988. The defendant / respondent has not even produced his sale deed or the copy of his sale deed. Admittedly, he purchased the northern

property to the suit property, but for the reasons best known to him, he has not produced his sale deed, in order to prove the title and possession

of the southern property, which is admittedly the suit property. The evidence available both oral and documentary, would clearly show that the suit

property originally belonged to Perumal Naicker and his brother Venkatasamy Naicker, the same is stated as western boundary to the other

property purchased by the appellant under Ex.A7. But, subsequently, the same had been wrongly stated in UDR Patta No. 68, as the same

belongs to the respondent / defendant and the revenue authorities, after enquiry conducted by them issued change of patta in the name of appellant

/ plaintiff. The plea of the respondent / defendant that the suit property was a poramboke land and that he dug a well in the suit property by

spending Rs. 20,000/- are against the evidence available on record.

As per the decision of the Apex Court reported in Ramlal and Another Vs. Phagua and Others, , the Honourable Supreme Court has held that

the High Court can interfere in exercise of second Appellate Jurisdiction with unreasonable and unjust findings of Courts below, especially where

such Courts have not appreciated evidence on record. With regard to interference and exercise of jurisdiction by the High Court, in Second

Appeal, the Apex Court has given its ruling as follows:

22... In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by

the Courts below. The High Court is right in exercising its duty, rightly so in interfering with an unreasonable and unjust findings by both the Courts

below.

On a careful perusal of the materials on record, it will be clear that both the Courts below did not appreciate the evidence on record both oral

and documentary and, therefore, the findings arrived at by the High Court, in our opinion, does not call for any interference under Article 136 of

the Constitution of India and the civil appeal deserves to be dismissed.

In the grounds of appeal, the appellant has stated that the Judgment and Decree passed by the lower appellate court is vitiated for not

considering the principle of res judicata to the claim of the defendant based on statutory orders under Ex.A4 to Ex.A6. It is seen that Exs.A4 to

A6 are not court proceedings, but only the settlement register extract and the proceedings of Special Tahshildar and Tahsildar, which would not

constitute any res judicata for the disposal of the civil court.

Section 11 of the CPC reads thus:

Res judicata - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in

a former suit between the same properties or between parties under whom they or any of them claim, litigating under the same title, in a court

competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such

court.

Here in this case, it is seen that Ex.A4 is only a copy of the settlement register extract, dated 10.12.1990 and Exs.A5 and A6 are copies of the

proceedings of Tahsildar and Special Tahsildar, dated 04.12.1990 and 14.10.1988, which would not create any res judicata as contended by the

learned Counsel for the appellant / plaintiff in the grounds of appeal. Hence, I am of the view that the Judgment and Decree passed by the first

appellate court cannot be vitiated by the principle of res judicata and accordingly, the third substantial question of law, in this second appeal is

answered.

The finding of the lower appellate court as contended by the learned Counsel for the appellant would be construed as finding against evidence,

available under Exs.A4 to A7 and Ex.A1, and the corresponding oral evidence, which would be sufficient to prove the title and possession of the

property by the appellant / plaintiff and accordingly, I am of the view to answer the second Substantial Question of Law framed in this Second

Appeal in favour of the appellant / plaintiff.

In view of the finding given on the Substantial Questions of Law 1 and 2, I am of the view that the findings of the first appellate court is

perverse, since they were contrary to the oral and documentary evidence available on record. In the light of the decision rendered by the Hon''ble

Apex Court in Ramlal and Another Vs. Phagua and Others, , when the findings of the court below is contrary to the evidence or without evidence,

it has to be presumed as perverse and the High Court is bound to interfere with the same, in order to correct the finding and render justice and as

such this second appeal has to be allowed.

In the result, the appeal is allowed, confirming the Judgment and Decree passed by the trial court, the Judgment and Decree passed by the first

appellate court is set aside. However, there is no order as to costs.