S. KANDASAMY v. KARUPPAKONAR — 1997 DIGILAW 781 (MAD)

Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THIS second appeal is directed against the judgment and decree in A. S. No. 174 of 1994 dated. 10. 10. 1996 on the file of the Principal District Court, Kamarajar District at Srivilliputhur, confirming the judgment and decree in o. S. No. 288 of 1984 dated 30. 1. 1990 on the file of the Additional District Munsif Court, sattur. ( 2 ) THE appellants are the defendants in the suit. The plaintiff , the deceased Guruvammal filed a suit for possession of mesne profits in the year 1984. During the pendency of the suit, the said Guruvammal died and her legal representatives were added as other plaintiffs. ( 3 ) THOUGH the defendants other than the first defendant absented themselves and allowed the decree to be passed ex-parte against them, the first defendant contested the suit. However, the defendants lost in both the. courts which necessitated them to file this appeal before this Court. ( 4 ) MR. Sivaji, counsel for the appellants would mainly argue this second appeal only on the basis of a question which is alleged to be a substantial question of law by stating whether the lower appellate Court is right in deciding the suit without framing the relevant and appropriate issues and points for consideration which is mandatory in nature. ( 5 ) IN support of this question of law, the learned counsel cited a decision in K. M. M. Kader Hussain v. O. M. R. Selvaraj and others, and contended that the points for determination which arise for decision has not been framed, that means the mandatory provision under Order 41 Rule 31 of the Code of Civil procedure, which stipulates that the judgment of the lower appellate Court shall be in writing and shall state the points for determination, have not been adhered to, and therefore, the judgment of the lower appellate Court is liable to be set aside. I am in entire agreement with the points raised by the counsel for the petitioner and in respectful agreement with the law laid down by the Division Bench of this court referred supra. Before appreciating this point of law, let me refer to the basic facts in this case. ( 6 ) THE suit property originally belong to one Karthik Kone. Karthik Kone died leaving three sons, viz. , Kantha Kone, Aandi Kone and Subba Kone. Before appreciating this point of law, let me refer to the basic facts in this case. ( 6 ) THE suit property originally belong to one Karthik Kone. Karthik Kone died leaving three sons, viz. , Kantha Kone, Aandi Kone and Subba Kone. The deceased Guruvammal is the daughter of Kantha Kone. Kantha Kone died leaving his wife Subbammal, daughter guruvammal and two sons. Before the death of Kantha Kone, the properties were divided and Kantha Kone and his family members were enjoying the property which fell into his share. Later, the two sons of Kantha Kone also died. Guruvammal filed a suit against their mother Subbammal claiming the suit property on the ground that Subbammal colluding with her husbands nephew was wasting the property. However, the suit was dismissed and in an appeal, it was held that the plaintiff Guruvammal as a reversioner could claim the property after the death of the said Subbammal. ( 7 ) THIS aspect was upheld in the second appeal by this Court. It was specifically held by this Court that the plaintiff Guruvammal can claim the properties only after the demise of her mother Subbammal. The suit was disposed of by the District Munsif in O. S. No. 45/1941. The District Judge in the appeal decided as referred above in A. S. No. 123/ 1944. Ultimately, this Court upheld the said verdict in S. A. No. 205/1945. Thereafter, it appears that further partition was effected in the suit property and Subbammal was allotted with one portion in the year 1946, and the said Subbammal sold the same to the other defendants in order to prevent the plaintiff guruvammal to claim the property as reversioner, after the life time of the said Subbammal. ( 8 ) AFTER the death of Subbammal, the plaintiff Guruvammal filed the instant suit against the defendants for the possession of suit properties and also for mesne profits. The first defendant was examined as D. W. 1. On behalf of the plaintiff Ex. A1 to A 31 were marked through the husband of the plaintiff while examining him as P. W. 1 and on the side of defendants Ex. B1 to B 19 were marked through D. W. 1. ( 9 ) ON consideration of the entire materials, the trial Court found in favour of the plaintiff and decreed the suit as prayed for. B1 to B 19 were marked through D. W. 1. ( 9 ) ON consideration of the entire materials, the trial Court found in favour of the plaintiff and decreed the suit as prayed for. In appeal preferred by the defendant, the appellate Court in A. S. No. 174 of 1994 confirmed the verdict of the trial Court. During the pendency of the 1st appeal, the defendant also attempted to file an additional written statement. The materials placed before the Court and the judgment of the lower Court have been considered by the Lower Appellate Court in detail and as referred above, the judgment of the lower Court was confirmed. ( 10 ) IN this context, I would refer to an observation made by the lower appellate Court, which is given below:"the poor soul Guruvammal the deceased first plaintiff started the legal battle to assert her rights to the properties of her deceased father and brothers in 1941 by filing the suit in O. S. No. 35/41 against her own mother and cousin brothers. Her mother Subbammal was virtually controlled by her husbands nephew. Guruvammal failed before the trial Court, but her rights were declared on appeal. The High Court also upheld the judgment of the 1st appellate Court and held that Guruvammal was to get the properties as a reversioner should she survive her mother. Her mother the limited holder died on 23. 1. 1983 without loosing much time Guruvammal started the battle once again. Even though more than 5 decades past she was alive to enjoy the fruits of the decree till her last breath. Her legal representatives namely husband and children are to. enjoy the fruits of the judgment in A. S. No. 123/1944 as confirmed in S. A. No. 205/45 and the findings of the trial Court in this case. I see wisdom will dawn on the appellants and they will give the shares due to the respondents. " ( 11 ) HOWEVER, the defendants have thought it fit to file a second appeal before this Court. This would make it clear that the wisdom has not dawned on the appellants to give shares due to the respondents. Instead, the wisdom has drawned on them only to raise the above question of law. " ( 11 ) HOWEVER, the defendants have thought it fit to file a second appeal before this Court. This would make it clear that the wisdom has not dawned on the appellants to give shares due to the respondents. Instead, the wisdom has drawned on them only to raise the above question of law. As indicated earlier, the only point that has been urged before this Court, at the admission stage, stating that the lower appellate Court, without complying with mandatory provisions contemplated under Order 41 Rule 31 of the Code of Civil Procedure, has decided the appeal. The judgment rendered by the Division Bench of this Court, by referring to the decisions in Kannammal v kuppanna, and Visalakshi Ammal v. Dhanalakshmi Ammal, has specifically held as follows:"the object of Order 41, Rule 31 C. P. C. 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 C. P. C. " ( 12 ) THERE is no dispute in the above legal proposition relating to the procedure to be followed while deciding the appeal under Order 41 Rule 31 C. P. C. But, the question is whether the lower appellate Court in the instant case has followed it or not. ( 13 ) I have gone through the lower Court judgment as well as the lower appellate Court judgment. Of-course, the counsel for the appellants did not dispute about the framing of issues by the lower Court. He only contended that the point for determination was not framed by the lower appellate Court, On going through the judgments, I find that the above point is not correct, because the points for determination have been framed in this appeal in para 13 of the judgment are as follows: (i) Whether the respondents are entitled to the relief of possession and mesne profits? (ii) Whether the judgment of the trial court has to be set aside? (ii) Whether the judgment of the trial court has to be set aside? ( 14 ) SO, this would make it clear that the point of law which has been raised in this case has no basis and so it has to fail. Therefore, when the findings have been given by both the courts below on the factual aspects, I am not inclined to admit this case in the absence of any substantial question of law. Even the alleged substantial question raised by the counsel does riot have any basis whatsoever. ( 15 ) TODAY, when the judgment was about to be pronounced, Mr. Sivaji, the counsel for the appellants wanted to make further submissions with reference to the failure to frame the proper issues by the trial Court also. Accordingly, he was permitted. He would contend that even before the filing of the instant suit, the mother of the plaintiff alienated the properties by effecting partition and those properties were sold under legal necessity and that when this question was attempted to be raised before the lower appellate Court by seeking permission to file an additional written statement for raising this plea that the suit for possession and mesne profits could not be maintained; his request was rejected. Now, the perusal of the appellate Courts judgment would reveal that this point was considered by the lower appellate Court and a finding was given, which is as follows:-"in the additional written statement. now it is also sought to be raised that the properties were sold for legal necessity. Unfortunately, when D. Ws. were examined, they did not give an account for the legal necessity. Therefore, the additional written statement is sought to be inducted to fill up lacuna only. Under the above circumstances, I find this point against the petitioners " ( 16 ) NO doubt it is true, there is no specific issue framed by the trial Court with reference to the alleged sale of the property out of legal necessity. However, the said aspect has been considered while discussing and answering the main issues framed in this case, on the basis of the evidence adduced before the trial Court and a specific finding has been given that the sale was not effected out of legal necessity. However, the said aspect has been considered while discussing and answering the main issues framed in this case, on the basis of the evidence adduced before the trial Court and a specific finding has been given that the sale was not effected out of legal necessity. The following is the relevant extract from the judgment of the trial Court:-"matter in other language" in this context, the observation made by the Apex Court in K. Chandra Purkait v. Santosh Kumar Purkait and Others, which is quite relevant reads as follows:-"even according to the High Court, the point urged on behalf of the appellant was only a "legal plea" though no specific plea was taken or no precise issues were framed in that behalf. The High court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in subsection (5) of Section 100 C. P. C Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". " ( 17 ) IN view of the above discussion, the point urged by the counsel for the appellants, in my view, could not be considered as a substantial question of law. Therefore, this point also fails. ( 18 ) IN the result, the second appeal is dismissed. Consequently, C. M. P. No. 9888 of 1997 is also dismissed. Appeal dismissed.