Ramakrishna Gounder v. Kannappa Mudaliar — 1985 DIGILAW 433 (MAD)

Judgment :- 1. In view of the fact that I have found a warrant on principle to remit the matter back to the lower appellate Court, I do not propose to dwell in extenso over the factual materials involved in these two second appeals, except to recapitulate the necessary and bare facts. 2. As many as eight items belonged to one Muthulakshmi Ammal by virtue of a sale deed dated 12th May, 1913 as per Ex. A6. They were the subject-matter of a simple mortgage to one Ramaswami Iyer in 1913, and the mortgagee enforced his rights in O.S. 409 of 1931 on the file of the District Munsif, Tindivanam, and this resulted in a court auction sale and the court auction purchaser is stated to have taken possession of the concerned items. Kannappa Mudaliar, the first respondent in these two second appeals, claims title under the court auction purchaser. Muthulakshmi Ammal had a daughter by name Amirthammal in whose favour a sale deed was executed on 5th September, 1925 as per Ex. A7. Amirthammal died later. Amirthammal left three children, viz, Ayyammal, Ayyasami and Amaravathi. Ramakrishnan, the appellant in these two second appeals, is the son of Amaravathi. Earlier, Ayyasami and his two sisters Ayyammal and Amaravathi filed O.S. 165 of 1965 on the file of the District Munsif, Tindivanam, for declaration of title and recovery of possession of all the items. Ultimately, in the sec ond appeal, Kannappa Mudaliars title was upheld in respect of S. No. 172/2-.80 acres. S. 175/310.? acres out of 2.72 acres; S. No. 175/1- cents and a well alone out of 2.06 acres in S. No. 172/3. Ayyammal, Ayyaswami and Amaravathi executed a settlement deed in favour of Ramakrishnan as per Ex. A19, dated 13th March, 1972. Ramakrishnan filed O.S. 168 of 1972, on the file of the Subordinate Judge, Cuddalore, to set aside the decree in O.S. 165 of 1965 referred to above and for other reliefs. Kannappa Mudaliar filed O.S. No. 250 of 1975 on the file of the very same Court for declaration of title in respect of 15 cents in S. No. 172/3, which, according to him, is the area occupied by the well. The two suits were tried together and the suit filed by Ramakrishnan in O.S. 168 of 1972 was dismissed and the suit filed by Kannappa Mudaliar in O.S. 250 of 1975 was decreed. The two suits were tried together and the suit filed by Ramakrishnan in O.S. 168 of 1972 was dismissed and the suit filed by Kannappa Mudaliar in O.S. 250 of 1975 was decreed. Ramakrishnan filed A.S. 325 of 1976 against O.S. 250 of 1975 and he also filed A.S. 326 of 1976 against O.S. 168 of 1972. Both the appeals were dismissed. S.A. 1971 of 1980 has been preferred against A.S. 325 of 1976 and S.A. 1972 of 1980 has been preferred against A.S. No. 326 of 1976. 3. The substantial question of law framed by this Court in these two second appeals touches upon the aspect as to whether the decree in O.S. 165 of 1965 could be held to be a nullity. 4. The lower appellate Court in its common judgment after setting out the facts of the cases, has summarily formed an opinion that the plaintiff Ramakrishnan is bound by the decree in O.S. 165 of 1965 and be cannot be heard to come forward to attack the same on the ground of fraud. The reasons which weighed with the lower appellate Court for the formation of that opinion is expressed in paragraph 17 of its judgment, and I feel obliged to extract the same: “In the first place the plaintiff is admittedly not a party to the prior suit. The parties to the prior suit have not at all chosen to attack the decree in O.S. 165 of 1965 on the ground of fraud or on similar grounds now alleged in the plaint. They had no case that Ex. B.11 was a forged delivery receipt created for the occasion. On the strength of Ex. B11, a valid decree was passed by the High Court. Hence it is now not open to the plaintiff to come forward to attack the prior proceedings. The plaintiff admittedly claims fight over the suit properties on the strength of Ex. A.19, executed by Ayyasami and two others who are parties to the prior suit. His predecessors-in-title had no such case of fraud in the prior suit. Hence one cannot expect the plaintiff to come forward with such wild allegations ignoring the defence raised by his vendors or settlors in the prior suit. A.19, executed by Ayyasami and two others who are parties to the prior suit. His predecessors-in-title had no such case of fraud in the prior suit. Hence one cannot expect the plaintiff to come forward with such wild allegations ignoring the defence raised by his vendors or settlors in the prior suit. He cannot claim any better right than his predecessors-in-title.” It is clear from the above extract that there is a total misconception about the nature of the controversy involved in the litigation. The prior suit O.S. 165 of 1965 was filed by Ayyasami and his two sisters, Ayyammal and Amaravathi and that was a suit for declaration of title and recovery of possession. The said persons themselves being parties to the suit, there is no question of attacking the very decree in that suit, O.S. 165 of 1965 on the ground of fraud or on any other allied grounds. Equally so, the reasoning of the lower appellate Court that Ramakrishnans predecessors-in-title had no such case of fraud in the prior suit is nothing but the result of a total misunderstanding of the scope and amplitude of the controversy involved in the present lis. 5. The lower appellate Court adverts to paragraph 16 of the judgment of the first court and says that a number of rulings have been referred to in that paragraph and, in the light of the principles laid down in the above rulings the lower appellate court says that it is inclined to hold that the plaintiff has misconceived his claim. There is no discussion of the principles deducible from the said rulings and as to bow they should be appropriately applied to the facts of the cases. Once again, after referring to the bare citations of some of the pronouncements on the question of a decree obtained by practising fraud being a nullity, the lower appellate court straightway proceeds to say that Ramakrishnan, the plaintiff, has miserably failed to prove that Ex. A1 decree was obtained by exercise of fraud by Kannappa Mudaliar. The evidence, oral and documentary, placed by the parties in the cases is voluminous indeed and the lower appellate Court has not adverted to and discussed any piece of evidence in this behalf. It has failed in its duty by not adverting to and discussing the material evidence placed by the parties on the relevant aspects. The evidence, oral and documentary, placed by the parties in the cases is voluminous indeed and the lower appellate Court has not adverted to and discussed any piece of evidence in this behalf. It has failed in its duty by not adverting to and discussing the material evidence placed by the parties on the relevant aspects. There is a glaring failure on the part of the first appellate Court in this regard. The discussion of other aspects by the lower appellate Court also suffers the same infirmity. The lower appellate Court, in another place, says that the matter has been elaborately discussed in paragraph 18 of the judgment of the first Court and on this basis, the lower appellate Court approves the rejection by the first Court of the case of the plaintiff. 6. There is a mandate in the Code of Civil Procedure to the first Appellate Court to advert to the evidence placed in the case and it must come to its own independent conclusion on a consideration of such evidence. It must not forget that as a final court of fact, it is duty bound to given an independent and comprehensive consideration and assessment of the evidence and come to its own conclusion one way or the other. There is no excuse to skip over this obligation, merely on the ground that the first appellate Court affirms the judgment of the first court. The duty cast upon the first appellate Court is an undoubted one and it must review the recorded evidence and draw its own conclusions and inferences. It should independently enter into all questions including appreciation of the evidence in the case, and, give reasons of its own for its ultimate decision. The objects of these mandates are obvious. First, it will enable the party affected by the decision of the first appellate Court to know and understand the realons or grounds for such decision, so that, if there is a necessity felt to go by way of a second appeal, the party will be in a position to formulate his opinion in this regard over such reasons or grounds. Secondly, this Court, when a second appeal comes before it, must be facilitated to find out as to whether the first appellate Court has properly appreciated the case and has proceeded to decide it, independently applying its mind to it and considering the totality of the material evidence placed in the case. These mandates stand violated by the lower appellate Court in these two cases. 7. The features discussed above oblige me to interfere in these two second appeals, for the purpose of remitting the matters to the lower appellate court for it to deal with the matter in accordance with law, in the light of the observations made and the principles discussed above and decide the matters afresh. 8. However, Mr. R. Alagar, learned counsel for the respondents in these two second appeals, submits that if the principle laid down by a Bench of this Court in Jagannath v. Perumal Naidu 1 is taken note of, the suit laid by Ramakrishnan, the plaintiff, must be thrown out. Even this principle, if that is applicable has not been adverted to by the lower appellate Court, and I am not, by this order of remittal, tying down the hands of the lower appellate Court to advert to all or any relevant principles that should be taken note of in deciding the points arising in the cases. The lower appellate Court shall definitely advert to all or any principle relevant to the facts of the cases before rendering a decision afresh one way or the other. 9. Accordingly, these two second appeals are allowed and the appeals, A.S. 325 and 326 of 1976, shall stand remitted back to the file of the lower appellate Court for it to dispose of the same in the light of the observations made and principles discussed above and in accordance with law. The lower appellate Court may also consider the question of permitting additional evidence, if the parties make a request therefor and if there is a warrant for it in law. The appellant is entitled to refund of the court fees paid on these two memoranda of second appeals. I make no order as to costs in these two second appeals. The costs in the suits and appeals shall abide the results in the appeals before the lower appellate Court. 10. The appellant is entitled to refund of the court fees paid on these two memoranda of second appeals. I make no order as to costs in these two second appeals. The costs in the suits and appeals shall abide the results in the appeals before the lower appellate Court. 10. The parties shall appear before the lower appellate Court on 27th January, 1986 for the purpose of receiving directions as to further proceedings in the matter.