Vellappa Gounder and Others vs Palaniammal and Another

These second appeals have arisen from the decree and judgment of the Sub Court, Sankari made in A.S.Nos.1981 and 1980 of 1989 dated

16.4.90 confirming the judgment of the learned District Munsif, Tiruchengode made in O.S.Nos.968 of 1981 and 982 of 1981 dated 26.10.88.

The respondents in SA No. 1101 of 1990 filed a suit seeking a preliminary decree for partition of their 1/4th share to the first respondent and

permanent injunction alleging that the first respondent is the sister of the second respondent; that they had another brother by name Palanisami

Gounder who died six years ago leaving behind him his widow Sellammal as the sole heir; that the defendants 1 and 2 are brothers and the third

defendant was the son of their brother deceased Palanisami Gounder; that the fourth defendant was the son of the first defendant; that the

defendants 1 and 2 had another brother by name Kuppanna Gounder; that the defendants 1 and 2 and their brothers constituted a joint family and

were owning and enjoying different portions of the family properties without any partition by metes and bounds; that the first respondent was

married to Muthusamy Gounder, who also owned properties adjacent to the suit properties on the south that the first respondent purchased the

1/4th share of Kuppanna Gounder in the suit properties under a registered sale deed dated 24.7.61 from out of the Sridhana and separate funds;

that she got the sale deed in the name of her brother deceased Palanisami Gounder, since she wanted to save the property from the creditors of

her husband; that the said fact was known to the second respondent also and in pursuance of the said sale deed, the first respondent was put in

possession of the specific portions in the two small bits and she has been enjoying the same by cultivating seasonal crops; that when the defendants

1 and 2 began to give trouble to the peaceful enjoyment of the first plaintiff/first respondent in respect of the suit property, a Panchayat was

convened wherein they were advised to have an amicable partition; that the defendants did not pay heed to the Panchayatars words; that on

28.2.77 the defendants 2 and 4 came with a body of persons and cut the trees to the worth of Rs.500 and under such circumstances the

plaintiffs/respondents were constrained to file a suit for partition.

The fourth defendant in that suit contested the matter alleging that it is false to state that the defendants 1 and 2 and their brothers are constituting

a joint Hindu family and enjoying each portions of the properties; that the defendants 1 and 2 and other brothers partitioned their properties and

enjoying the same separately; that the first respondent did not purchase the property in the name of Palani Gounder and she has suppressed the

real facts; that the defendants never disturbed the alleged possession of the first respondent; that there is no necessity for the Panchayat at all at any

time; that the first respondent is not entitled to any share in the properties; that the defendants as usual cut the trees and the same cannot be

questioned by the plaintiffs; that the first respondent has no locus standi to file the suit; that the alleged release deed executed by Sellammal on

29.1.73 is not a valid one in law and she cannot execute any release deed in favour of the second respondent; that the first respondent is not

entitled to any partition as she has no right in any item of the properties; that the suit is bad for mis joinder of parties as well as for non-joinder of

necessary parties and hence the reliefs should not be granted.

The respondent in S.A.No. 1102 of 1990 filed a suit in O.S.No.982 of 1981 for declaration of title of the respondent to the suit property and

for recovery of possession alleging that the first defendant is the sister of the second defendant; that the third defendant is the mother of the plaintiff;

that one Kuppanna Gounder, son of Chinna Gounder sold the suit house and his 1/4th undivided share in the agricultural lands and other properties

under a registered sale deed dated 27.7.1961; that the said properties were purchased by the plaintiff benami in the name of her brother Palani

Gounder; that the sale consideration was paid by the respondent from out of her Sridhana and separate funds; that the respondent and her husband

were in possession for 5 years; that subsequently it was leased out to one Dhobi @ Sami of Erode for running the handlooms and he was in

possession of the suit house for nearly 5 years; that again it was leased out to one Raman; that the said Palani Gounder died leaving his wife

Sellammal and his mother Nallamraal and the third defendant as his only legal heirs; that Sellammal executed a settlement deed in favour of the

plaintiff under a registered settlement deed dated 2.11.77; that the third defendant has not claimed any interest or title over the suit property; that

D3 died on 18.1.1983 leaving behind her the legal heirs of the plaintiff Raja Gounder and Pappayee Ammal that the suit filed by Raja Gounder in

O.S. No.142 of 1977 on the file of the Subordinate Judge, Salem for partition and injunction in respect of the agricultural lands and other

properties is now pending; that the defendants 1 and 2 are trying to create records in their favour in respect of the suit property and hence the

respondent filed this suit for the abovestated reliefs.

The first defendant contested the said suit stating that the alleged purchase of the property by the respondent from Kuppanna Gounder is

denied; that the respondent might have created some kist receipts in her name; that the respondent never enjoyed the suit properties at any time

that the respondent is not the absolute owner of the suit property; that Kuppanna Gounder owner of the suit house executed a will in favour of the

first defendant in the year 1960 because Dl happens to be his brother''s daughter; that Dl is in possession and enjoyment of the suit house and she

has also improved the suit house by spending nearly Rs.3,000 and she had also perfected her title to the suit property by adverse possession also

and hence the relief asked for should not be granted.

The trial court framed, necessary issues, in both the suits, tried the same jointly and rendered a common judgment wherein it passed a

preliminary decree in O.S.No.968 of 1981 granting XIth share to the second plaintiff therein in the landed property only and decreed the suit in

O.S.No.982 of 1981 as prayed for. The unsuccessful defendants preferred two appeals in A.S.Nos.80 and 81 of 1989 on the file of the Sub

Court, Sankari. Both the appeals were dismissed, which culminated in these two second appeals. At the time of admission the following substantial

questions of law were formulated:

(1) Whether the Courts below were right in graining a decree in favour of second plaintiffs one-fourth share in the absence of any pleading and

specific - prayer and in view of the disowning of the interest in the property?

(2) Whether the suit in O.S.No.982 of 1981 was not barred by Order 2, Rule 2, C.P.C.?

As seen above, the respondents in S.A. No. 1101 of 1990 filed a suit for partition in O.S. No.968 of 1981 on the file of the District Munsif''s

Court alleging that the first respondent purchased 1/4th share of Kuppanna Gounder in the suit property under a registered sale deed on 24.7.61

from out of her funds, but in the name of her brother Patani Gounder; that in pursuance of the purchase she has been in possession and enjoyment

of the same by cultivating the lands and that since no amicable arrangement for partition was possible, she was constrained to file the suit for

partition. The respondent in the other appeal S.A.No.1102 of 1990 filed a suit for declaration and possession of the suit property contending that

the Kuppanna Gounder sold the suit house and the 1/4th undivided share in the agricultural lands and other properties in her favour on 27.7.61;

that the properties were purchased by her in the name of her brother Palani Gounder; that her brother Patani Gounder left behind him his wife,

Sellammal who executed a registered settlement deed in favour of the respondent; that the second defendant trespassed into the suit house and

allowed the first defendant to be in possession and hence she was to file the suit for declaration and possession. Both the suits were vehemently

contested by the respective contesting defendant alleging that the first respondent never purchased the 1/4th share either out of her funds or

benami; that she has not been in possession and enjoyment of the property and that she was not entitled for the reliefs.

Arguing for the appellants, the learned counsel inter alia would submit that the suit for declaration of title and recovery of possession was barred

under Order 2, Rule 2 of C.P.C.; that the suit property in respect of which declaration of title and recovery of possession was sought for was the

subject matter of partition in O.S.No.968 of 1981 on the file of the District Munsif, Tiruchengode and hence it was not open to the respondent in

S.A.No.1102 of 1990 to institute a latter suit; that the release deed and settlement deed under Exs.A39 and A40 were filed and created for the

purpose of the case and hence the lower court should not have relied on those documents; that the vital contradictions in the evidence adduced on

behalf of the plaintiffs side would disprove the case of the plaintiffs; that the alleged documents under Exs.A39 and A40 could not realty transfer

any right, but they only confirm the right already transferred by the sale deed; that when it was clear that the sale deed did not transfer any right to

the first respondent, the suit filed by her should have been dismissed. Added further the learned counsel that the lower courts have rightly held that

the respondents were not entitled to ask for partition in the suit properties; that it is curious, fo note that the second respondent did not ask for

partition of his share in the properties; that there was no prayer in the plaint in respect of the partition of the suit property in favour of the second

respondent but the trial court has granted reliefs in his favour. Pointing to the judgment of the first appellate court, the learned counsel would submit

that it has erred in not applying its mind independently, but has rewritten verbatim the judgment of the trial court and thus on this sole ground the

judgment of the first appellate court has got to be set aside, in support of his contentions, the learned counsel relied on the following decisions viz.

1) K.M.M. Kadar Hussain v. O.M.R. Selvarqj and two others, 1991 (1) CTC 559; (2) Banarsi Dass Vs. Brig. Maharaja Sukhjit Singh and

Another, and (3) State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., .

Countering to the above contentions, the learned counsel appearing for the respondents would urge that both the courts below have considered

the evidence both oral and documentary in proper perspective and have decreed the suits. Added further the learned counsel that it is not correct

to state that the first appellate court has not independently applied its mind, but has confirmed the trial court''s judgment and there is nothing to

interfere in the judgment of the courts below and hence the appeals have got to be dismissed.

After careful consideration of the rival submissions and available materials, the Court is of the view that without going into the merits or

otherwise of the contentions put forth by the respective side, what are all required to be stated is that the judgment of the first appellate court

cannot be sustained in law in view of the non-compliance of the mandatory provision of Order 41, Rule 31 of the Code of Civil Procedure, Order

41, Rule 31 of C.P.C. runs as follows:

Contents, Gate 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 reverses 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.

A Division Bench of this Court had an occasion to consider the mandatory nature of the provision under Order 41, Rule 31 in a case reported in

K.M.M. Kadar Hussain Vs. O.M.R. Selvaraj and Others, wherein it is held as follows'':

We have gone through the judgment of the learned single Judge. We are of the view that the judgment is defective, in that the learned Judge has

not followed the provisions under Order 41, Rule 31, C.P.C. As rightly pointed out by the learned Senior Counsel for the appellant, it is also

incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the court and

of the parties on the specific and rival contentions, which arise for decision. One of us (AR Lakshmanan, J.) sitting single, in Kannammal v.

Kuppanna Gounder, 1996 (II) MLJ 550, following a Division Bench of this Court in Visalakshi Ammal v. Dhanalakshmi Ammal, 1989 (2) LW

414 and for the reasons stated in the order, has set aside the judgment of the First Additional District Judge, Coimbatore and remitted back the

matter to the said Court, to dispose of the appeal afresh on merits and in accordance with law and after affording opportunity to both the parties,

within three months from the date of receipt of copy of the judgment.

The same view was taken by this Bench in the judgment dated 27.2.1997 rendered by us in Palanisami Pillai v. The Commissioner, Hindu

Religious and Charitable Endowments (Admn.) Department, Madras-34 and another, L.P.A.No.16 of 1993. In that case, similar contention was

raised before us. While considering the said submission, this Bench has observed in paragraph 12 of the Judgment as follows:-

The object of Order 41, Rule 31, CPC. in making it incumbent upon the appellate court to raise the points for determination and to state reasons

for the decision is to clear up the pleadings and focus the attention of the court and of the parties on the specific and rival contentions which arise

for determination as also to offer the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds

with a view to enable them to exercise, if they see fit, and are so advised, the right of second appeal conferred by Section 100, CPC. On a perusal

of the judgment of the learned single Judge, it appears to us that the reasons for his findings would not satisfy Order 41, CPC. This Court being the

first appellate Court, and being the final court of facts, it is incumbent on it to consider all the evidence adduced by the parties in the case. Learned

Single Judge has not even turned to the side of the plaintiffs who filed voluminous documents marked as Exs.A1 to A33. The parties to the suit or

appeal, in our opinion, have a right to know the reasons that have led the Judge to his conclusions. The learned single Judge (Bellie, J.) has not

considered any facts and circumstances and the evidence adduced both oral and documentary by both sides, but merely recorded a finding by

accepting the evidence of DWs.1 and 2 without himself bestowing any consideration thereon, it can surely be said that this is not a judgment in the

eye of law. In the instant case, the judgment of the learned subordinate Judge is exhaustive and well reasoned. The learned single Judge when he

reversed the judgment, there should be enough material to show that the court of appeal has considered it fully and formed its own opinion. In the

present judgment, there is no discussion at all about the documentary evidence filed and marked as Exs.A1 to A33. The law imposes upon the

court of appeal the imperative duty and obligation of giving an adequate and satisfactory judgment such as is required by law and it is the duty to

explain its reasons for so doing more especially when the court of first instance has gone so fully into the facts and the reasons for the conclusions

arrived at.

Learned Senior Counsel appearing for the respondents has no objection for setting aside the judgment and decree of the learned single Judge and

remit the matter to another learned single Judge of this Court for consideration of the entire facts and circumstances and the evidence adduced by

both the parties, both oral and documentary. As observed by us, the taw imposes upon the court of appeal the imperative duty and obligation of

giving an adequate and satisfactory judgment as is required by law and it is the duty of the Court to explain its reasons for so doing, more

especially when the Court of first instance has gone so fully into the facts and the reasons for the conclusions arrived, at.

The Hon''ble Apex Court in a case reported in State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., has held as follows:

A close scrutiny of the judgment of the first appellate court shows that there was no due or proper application of mind or any critical analysis or

objective consideration of the matter made, despite the same being the first appellate court. On the other hand, by merely reproducing the findings

of the trial court a mechanical affirmation seems to have been made of them without any reference to the principles of law or the criteria to be

satisfied before the claim of the plaintiff of perfection of title by adverse possession could be sustained.

On a perusal of the judgment of the first appellate court, it is clear that the first appellate court has simply reproduced the evidence recorded by

the trial court and so also the para-wise discussions in verbatim, made by the trial court to arrive at the finding. From the judgment of the first

appellate court it is more explicit that it has neither considered the evidence adduced by the parties before the trial court nor applied its mind nor

had it focused its attention on the specific and rival contentions which arose for decision, when an Imperative duty and an obligation is cast upon

the court of appeal viz. the first appellate court, it being the final court of facts, is duty bound to apply its mind independently afresh on the evidence

adduced by the parties before the trial court and to explain its reasons for the findings and conclusions arrived at. In the instant case, the judgment

of the first appellate court is a glaring example of non-application of mind and breach of the imperative duty imposed on it by the mandatory

provision under Order 41, Rule 31. The court may hasten to say that without any critical analysis or objective consideration of the material on

hand, the first appellate court has merely reproduced the findings of the trial court and has made a mechanical affirmation without exercising the due

care to follow the principles of law laid under Order 41, Rule 31. Needless to say that the judgment of the first appellate court, under the

aforestated circumstances, is not only defective, but also not a judgment in the eye of law and hence without any hesitation whatsoever, the

judgment of the first appellate court has got to be set aside, but the same be remitted back to the first appellate court with direction to dispose of

the appeals afresh on merits and in accordance with law and after affording reasonable opportunity to both the parties. It is brought to the notice of

the court by the Bar that the litigation which commenced in 1977 is pending for more'' than two decades and hence it has got to be disposed of

within a time frame. Hence the court feels it fit to give a direction to the lower appellate court to dispose of the appeals within three months from

the date of the receipt of the copy of this judgment.

In the result, both the second appeals are allowed, setting aside the judgment of the first appellate court. The matter is remitted back to the first

appellate court with a direction to dispose of the appeals afresh on merits and in accordance with law and after affording opportunity to both the

parties within three months from the date of the receipt of the copy of this judgment. There shall be no order as to the costs.