Kandasamy Gounder v. Thangavel Gounder & Another — 1999 DIGILAW 1098 (MAD)

Judgment :- Kandasamy Gounder, the plaintiff is the appellant herein. Thagavel Gounder and Palanisamy Gounder, the defendants are the respondents herein. 2. The appellant filed a suit in O.S.No.330 of 1981 on the file of the Court of District Munsif, Pollachi for declaration and injunction in respect of 2.44 acres in Survey No.20/1 in Jallipatti Village, Pollachi Taluk. 3. Though the said suit was contested by the defendants in respect of 44 cents, the learned District Munsif, after going through the entire evidence both oral and documentary, decreed the suit in respect of the entire property. Aggrieved by the judgment and decree of the trial court, the first defendant, the first respondent herein alone filed an appeal in A.S.No.79 of 1986 on the file of the Subordinate Judge. Udumalpet. The learned first appellate Judge, though confirmed the judgment and decree of the trial court in respect of 2 acres in S.No.20/1, reversed the finding of the trial court with respect to the remaining 44 cents in S.No.20/1. Aggrieved by the judgment and decree of the lower appellate court, the plaintiff, the appellant herein has filed this second appeal. 4. When the second appeal was entertained by this Court, the substantial question of law which was formulated is as follows: “Whether the judgment of the lower appellate court is vitiated by its failure to consider all the relevant materials and evidence on recorde” 5. Inelaboration of the above substantial question of law, the learned counsel appearing for the appellant would contend that the well-considered judgment of the trial court has been wrongly reversed by the lower appellate court in respect of 44 cents in S.No.20/1 without any valid reason and without discussing the reasonings given by the trial court, even though the appellant has proved his title and possession in respect of the entire property, namely, 2.44 acres. 6. According to the counsel for the appellant, the entire judgment rendered by the lower appellate court was based upon the Commissioners Report giving the age of the coconut trees standing in the suit land even without discussing the oral and documentary evidence adduced by the plaintiff with reference to the title and possession. 7. 6. According to the counsel for the appellant, the entire judgment rendered by the lower appellate court was based upon the Commissioners Report giving the age of the coconut trees standing in the suit land even without discussing the oral and documentary evidence adduced by the plaintiff with reference to the title and possession. 7. In reply to the said submission, Mr.K.Doraisamy, the learned senior counsel appearing for the first respondent, in support of the judgment of the lower appellate court, would contend that the reasonings on the basis of the Commissioners Report, given by the lower appellate court are correct and cannot be disturbed in the second appeal, especially, when the proper appreciation has been made, in order to arrive at such conclusion. 8. I have given my anxious consideration to the rival contentions and gone through the records. 9. According to the plaintiff, the appellant herein, he purchased the suit property, namely, 2.44 acres in S.No.20/1 on 30.9.1967 under Ex.A-2 and since then he has been in possession. It is the further case of the plaintiff that the suit property and other properties originally belonged to Semba Gounder and that in the year 1918, the sons of the said Semba Gounder partitioned the properties under Ex.A-1 and in that partition, one Kandasamy Gounder was allotted with the suit property of 2.44 acres in S.No.20/1 and the said property was sold by the son of the said Kandasamy Gounder to the plaintiff. 10. According to the first defendant, the suit property and other properties were purchased by Chellappa Gounder, Subbiah Gounder and Semba Gounder by the sale deed Ex.B-1 dated 112. 1902 and all the three brothers partitioned the properties on 14. 1903 under Ex.B-2 and the properties measuring about 3 acres and 90 cents were allotted to Semba Gounder and subsequently, on 7. 1902 and all the three brothers partitioned the properties on 14. 1903 under Ex.B-2 and the properties measuring about 3 acres and 90 cents were allotted to Semba Gounder and subsequently, on 7. 1912 under Ex.B-3, the said Semba Gounder released the land to an extend of 1.97 acres in favour of Chellappa Gounder and as such, the remaining property of 2 acres was in possession and enjoyment of Semba Gounder in S.No.20 and that the said property alone was sold by the heirs of the said Semba Gounder to the plaintiff and consequently, though in the sale deed Ex.A-2, the extent is wrongly mentioned as 2.44 acres, the plaintiff purchased only 2 acres from the grandson of Semba Gounder and as such, out of the suit property, the plaintiff would be entitled to the decree only in respect of 2 acres, as the remaining 44 cents was allotted to the first defendants wife as the heir of the brother of Semba Gounder. .11. The case of the second defendant is that the suit property along with the other properties were leased out to him by the first defendant and in order to disturb his possession as a lessee, the plaintiff has been set up by the first defendant to file a suit, which is collusive. 12. During the course of trial, the plaintiff examined himself as P.W.1 and Exs.A-1 to A-27 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and examined D.Ws.2 to 4 and on his side, Exs.B-1 to B-6 were marked. 13. On consideration of the entire materials, the trial court decreed the suit holding that the plaintiff would be entitled to declaration of title to 2.44 acres and permanent injunction as against the defendants. 14. The lower appellate court, without considering any material either the oral evidence or the documentary evidence adduced by both the parties, simply would refer the Advocate Commissioners reports and concluded that the age of the trees standing in 44 cents would tally with the age of the other coconut trees standing on the southern land belonging to the first defendant and 44 cents is situated on a higher level than the other portions and as such, the plaintiff would not be entitled to the relief in respect of 44 cents. 15. 15. As a matter of fact, the trial court would elaborately consider the various piece of evidence in a meticulous manner and give clear reasonings for decreeing the suit. Without adverting to those reasonings and without considering the evidence let in by both the parties, the lower appellate Court mainly relied upon the Commissioners reports and concluded that 44 cents must be construed to be in the possession of the first defendant. 16. It is the case of the first defendant that the suit property and other properties were leased out to the second defendant. The second defendant also in his written statement and in deposition would state that the properties mentioned above were leased out to him and a suit was filed by him against the first defendant and he got an ex parte decree. 17. On the other hand, the case of the plaintiff through his oral evidence and through Exs.A-1 to A27 is that the purchased the suit property of 2.44 acres on 30.9.1967 and he has been in continuous enjoyment and possession of the same throughout. Though Exs.B-1 to B-6 were marked on the side of the first defendant, none of those documents would relate to the possession of 44 cents either with the first defendant or with the second defendant as a lessee. 18. When the abundant materials like kist receipts and adangals have been placed by the plaintiffs to prove his title and continuous enjoyment, the lower appellate court for the reasons best known to it, has not chosen to refer those materials, nor to advert to the reasonings of the trial court. In other words, the first appellate Judge has totally ignored the materials available on record, which were relied upon by the trial court, and failed to refer as to why the reasonings given by the trial court were not acceptable. This approach, in my view, is totally erroneous and perverse. .19. The Commissioners reports, which were mainly relied upon by the lower appellate court, have been marked as Exs.C-1 and C-3. The first report is dated 12. 1979 with reference to the inspection made on 29. 1979 in the suit property. The second report is dated 210. 1980 with reference to the inspection made on 110. 1980. In both the reports, it is seen that the measurements of the suit property with reference to the survey stones are same. 20. The first report is dated 12. 1979 with reference to the inspection made on 29. 1979 in the suit property. The second report is dated 210. 1980 with reference to the inspection made on 110. 1980. In both the reports, it is seen that the measurements of the suit property with reference to the survey stones are same. 20. In the first report dated 5.12 1979, the Advocate Commissioner would state that in the disputed portion, there is no coconut tree on the half of the portion lying West. But, the plan Ex.C-4, dated 12. 1979 shows that the land in S.No.20/3 is on 1 1/2 feet upper level and the disputed land in S.No.20/1 is on 1 1/2 feet lower level. 21. In the report dated 210. 1980 for the inspection made on 110. 1980, it is stated that there is no young coconut saplings on the disputed area as well as on the southern side of the disputed area; but there are young coconut saplings on the northern side of the disputed area and also there are coconut trees on the eastern side and western side of the disputed area. But, Ex.C-2, the plan prepared on 210. 1980 shows that there were coconut trees on the one portion of the disputed area and the coconut trees were found both in S.No.20/1 on the one side and 20/3 on the other side. 22. The scrutiny of the Commissioners reports would reveal that there is no reference about the age and height of the trees. Under those circumstances, it is not understandable as to how the lower appellate court would consider the Advocate Commissioners reports and plans alone to conclude that the disputed portion was not in the possession of the plaintiff merely on the reason that the age of the trees found in the disputed land and the lands situated in other 2 acres, admittedly, belonging to the plaintiff, is different, though such particulars were not mentioned in the reports, as stated above. 23. Apart from this serious lacuna, as indicated above, the very vital materials, such as oral evidence and documentary evidence adduced by P.W.1 has not at all been taken into consideration by the lower appellate court. 124. The materials which would support the plea of the plaintiff, as discussed by the trial court, could be detailed as under. 125. 23. Apart from this serious lacuna, as indicated above, the very vital materials, such as oral evidence and documentary evidence adduced by P.W.1 has not at all been taken into consideration by the lower appellate court. 124. The materials which would support the plea of the plaintiff, as discussed by the trial court, could be detailed as under. 125. The total extent of S.No.20 is 10 acres 69 cents. Under Ex.A-3, Sub-Division was made and it was divided into three portions and numbers were given as S.Nos.20/1, 20/2 and 20/3. S.No.20/1 Comprises of 2.44 acres, S.No.20/2 comprises of 5.61 acres and S.No.20/3 comprises of 2.64 acres. Under Ex.A-1, the partition was taken place on 111. 1918 among Palani Gounder, Kandasamy Gounder and Malaiya Gounder. They are the sons of Semba Gounder. As per this document, the sub-division had taken place earlier. The extent of 5.61 acres in S.No.20/2 was allotted to one Valli Ammal, the wife of the first defendant in 1971 under Ex.A-27. The extent of 2.64 acres in S.No.20/3 was allotted to the first defendants family in 1956 under Ex.A-18. Similarly, the area of 2.44 acres in S.No.20/1 was allotted to Kandasamy Gounder in 1980. This property was sold by the heirs of the said Kandasamy Gounder on 19. 1967 to the plaintiff under Ex.A-2. 126. The case of the first defendant is that 3.97 acres in S.No.20 was originally allotted to Semba Gounder in the year 1903 and in 1912, the said Semba Gounder released 1.97 acres in favour of his eldest brother Chellappa Gounder in S.No.20 and consequently, Semba Gounders family was enjoying only 2 acres and therefore, the plaintiff who purchased from the heirs of the said Semba Gounder, would be entitled to the said extent only, namely, 2 acres. 127. For the above contention, he would rely upon Ex.B-3, the release deed executed by Semba Gounder on 7. 1912. The perusal of the said document would not show that the property comprising of 1.97 acres which was released by Semba Gounder, is situated in S.No.20. In Ex.B-3, the relevant recital is this: This recital would show that the partition of property was not only in respect of S.No.20, but also in respect of S.Nos.16, 21, 41 and 42. 1912. The perusal of the said document would not show that the property comprising of 1.97 acres which was released by Semba Gounder, is situated in S.No.20. In Ex.B-3, the relevant recital is this: This recital would show that the partition of property was not only in respect of S.No.20, but also in respect of S.Nos.16, 21, 41 and 42. The schedule of property is given below: Thus, the details given in the schedule would make it clear that the property released by virtue of this deed is not situated in S.No.20, but situated at the western southern side. 28. D.W.1 the first defendant would state that he had documents like sale deeds and partition deeds to show that the disputed property of 44 cents was allotted to him and he has been in enjoyment and possession of the suit property. But, he has not produced those documents before the court, though he said that the same were available with him. On the other hand, the partition deed with respect to the first defendant was produced by the plaintiff as Ex.A-18. This document would show that the land comprising of 2.67 acres in S.No.20/3 alone was allotted to the first defendant. 29. On the application sent to the Revenue Authorities by the first defendant, the District Surveyor came and took measurements of the land and put survey stones as per the documents. Though, it is the case of the first defendant that the land was not properly measured, he has not challenged those proceedings. It is the case of the first defendant that a fence was existing in between the lands of the plaintiff and the first defendant and the said fence was dividing the land in S.No.20/1, but the same was cut and removed by the plaintiff and the plaintiff was charge-sheeted by the police. But it is seen from Ex.A-26, the judgment of the criminal court, that the dispute with regard to the fence cutting was not with reference to the Survey No.20/1, but in other land in S.No.42/1 and 43. 30. The documents, Ex.A-4, Chitta Copy and Exs.A-5 to A-15 and A-19 to A-24, kist receipts would clearly show that the plaintiff has been in continuous enjoyment and possession of the entire property comprising of 2.44 acres ever since he purchased from the vendors. 30. The documents, Ex.A-4, Chitta Copy and Exs.A-5 to A-15 and A-19 to A-24, kist receipts would clearly show that the plaintiff has been in continuous enjoyment and possession of the entire property comprising of 2.44 acres ever since he purchased from the vendors. All the deeds Exs.A-1, A-2 and A-3 would show that the plaintiff would be entitled to S.No.20/1 comprising of 2.44 acres. 31. The above materials have been elaborately discussed by the trial court and it has given detailed reasonings for accepting the plea of the plaintiff. That apart, the admission of D.W.1, the first defendant is quite relevant to notice, at this juncture. The portion of the deposition is as follows: 32. The above statement would clearly show that he would admit that 2.44 acres is in S.No.20/1 and he did not want any portion of land in S.No.20/1. Furthermore, D.W.2 Subramaniam, who is the son of the vendor of the property would clearly admit that the vendor Mayilsamy Gounder and himself sold the area, which they were entitled to sell, to the plaintiff. 33. When these relevant materials which are in abundance are available on record, it is quite unfortunate on the part of the lower appellate court to have chosen to rely upon the Commissioners reports alone without appreciating the above materials. 34. It is settled law, to have the possession of the plaintiff protected, the plaintiff has to demonstrate that his possession is lawful and therefore, for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain the same, the courts necessarily, will have to go into the question of title especially in the present case, which arises out of a suit seeking for the reliefs or declaration of title and permanent injunction. 35. Under those circumstances, the trial court considered the question of title on the basis of the title deeds and analysed the question of possession on the basis of the chitta, kist receipts and adangals. 36. The High Court under Sec.100, Civil Procedure Code, is entitled to take into consideration the question whether the material evidence and relevant circumstances were considered by the lower courts. 36. The High Court under Sec.100, Civil Procedure Code, is entitled to take into consideration the question whether the material evidence and relevant circumstances were considered by the lower courts. This Court is also entitled to consider whether the finding of the lower appellate court is based on evidence, and whether the evidence is based on pleadings, If the finding of the lower appellate court is based only on surmises or on wrong application of law, and it is not based on evidence or pleadings, this Court is entitled to interfere with the finding of the lower appellate court. 37. These principles have been laid down in Muthu Gounder v. Poosari alias Palaniappan (1998)2 MLJ. 351 : (1998)1 C.T.C. 477 , A.Irudayasamy 38. As laid down by the Supreme Court as well as the various High Courts, the courts have always been alive to the situation that in the interest of justice it would become necessary not to ignore improper appreciation of evidence or to turn a blind eye to glaring mis-reading of the evidence by the Subordinate Courts. 39. It is also to be mentioned that in the present case, the lower appellate court interfered and set aside the findings of the trial court, which had the advantage of watching the demeanour of the witnesses on the basis of the meticulous analysis of the materials without any reason merely on the basis of the Commissioners report. As indicated above, the report of the Commissioner also has been thoroughly mis-read by the lower appellate court. 140. In view of the above discussion, I am of the considered opinion that the judgment of the lower appellate court would suffer from grave illegality and perverse approach by having not considered vital materials placed on record. Consequently, the second appeal is allowed with costs. The judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored.