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2000 DIGILAW 189 (AP)

Sathrevada Valliamma v. S. Sabhapathi

2000-03-15

G.BIKSHAPATHY

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G. BIKSHAPATHY, J. ( 1 ) THE second appeal is filed against the judgment and decree dt. 22-7-1999 of the learned Senior Civil Judge, Puttur in A. S. No. 7 of 1992 confirming the judgment and decree dt. 30-3-1992 of the Principal District munsif, Puttur in O. S. No. 219 of 1984. ( 2 ) APPELLANT is the plaintiff. He filed the suit O. S. No. 219 of 1984 for permanent injunction. The defendants heavily resisted the suit. After considering the respective pleadings of the parties, the trial Court framed the following issues. (1) Whether the plaintiff is the absolute owner of the plaint schedule properties? (2) Whether the plaintiff is in possession and enjoyment of the plaint schedule properties as on the date of the suit? (3) Whether the plaintiff perfected her title to the plaint schedule properties by adverse possession? (4) Whether plaintiff is entitled to the permanent injunction as prayed for? (5) To what relief? ( 3 ) BEFORE the trial Court three witnesses were examined for the plaintiff and documents Exs. A-1 to A-14 were marked and three witnesses were examined for the defendants and documents Exs, B-1 to B-7 were marked. After considering the evidence and also the documents marked in the suit, the trial Court recorded findings against the plaintiff and accordingly dismissed the suit by its judgment and decree dt. 30-3-1992 without costs. Aggrieved by the said judgment and decree the plaintiff carried the matter in appeal in a. S. No. 7 of 1992. Before the appellate court the appellant filed I. A. No. 257 of 1997 for receiving additional documents. The said LA. was allowed and the documents were marked as Exs. A-15 and A-16. Thereafter, the appellate Court framed the following issues for consideration. (1) Whether plaintiff is in the absolute owner of the plaint schedule properties? (2) Whether the plaintiff is in possession and enjoyment of plaint schedule properties as on the date of the suit? (3) Whether the plaintiff perfected her title to the plaint schedule properties by adverse possession? (4) Whether plaintiff is entitled to the permanent injunction prayed for ? (5) To what relief? (2) Whether the plaintiff is in possession and enjoyment of plaint schedule properties as on the date of the suit? (3) Whether the plaintiff perfected her title to the plaint schedule properties by adverse possession? (4) Whether plaintiff is entitled to the permanent injunction prayed for ? (5) To what relief? ( 4 ) THE learned appellate Judge after considering the matter held that the finding of the trial Court that the plaintiff had not been able to establish that the suit schedule properties are self-acquired properties of muneppa Reddy and also failed to prove the Will, cannot be said to be contrary to the evidence on record and accordingly dismissed the appeal by its judgment dt. 22-7-1999 concurring with the judgment and decree passed by the trial Court. The unsuccessful plaintiff filed the present second Appeal. ( 5 ) IN this Second Appeal notice before admission was issued. Sri V. Jagapathi, the learned Counsel appears for the respondents. ( 6 ) SRI P. S. Narayana, the learned Counsel for the appellant submits that the appellate court has not dealt with the matter in the manner contemplated under Order 41 rules 28 and 29 of C. P. C. He also submits that when additional documents were sought to be received at the appellate stage, the appellate Court is under statutory obligation to consider the same and give a proper finding but it failed to consider and refer to these documents and hence there is infraction of the provisions of the C. P. C. He further submits that the finding recorded by the trial Court as affirmed by the appellate court, on the issue that the properties in question were not proved as self-acquired -properties of Muneppa Reddy, do not conform to the evidence on record and thus the Courts below failed to appreciate the evidence available on record in proper perspective which resulted in rendering a wrong decision by both the Courts below. He also pointed out that the finding of the trial Court on Ex. B-6 was not in accordance with law and since the findings of the courts below operate as res judicata in subsequent proceedings. Therefore, these findings, which are not based on the evidence on record or in accordance with law, are liable to be set aside. He also pointed out that the finding of the trial Court on Ex. B-6 was not in accordance with law and since the findings of the courts below operate as res judicata in subsequent proceedings. Therefore, these findings, which are not based on the evidence on record or in accordance with law, are liable to be set aside. ( 7 ) THE learned Counsel for the respondent, on the other hand, submits that no case is made out for interference of this court at this stage and that no substantial question of law under Section 100 of C. P. C. arises for admitting the second appeal. He further submits that the issues that are decided by the lower Court are pure questions of fact and hence the second appeal has to be dismissed at the admission stage. ( 8 ) HEARD the learned Counsel for the parties. ( 9 ) WITH regard to the non-consideration of Exs. A-15 and A-16 it is the contention of the learned Counsel for the appellant that these letters would clinchingly establish that the plaintiff was in possession of the suit schedule properties and non-consideration of these documents vitiated the entire proceedings. In support of his contention he relied upon a decision of madras High Court in K. M. Srinivasam Pillai vs. Y. P. R. L. Alagappa Chettiar where it is stated that when additional evidence has to be inducted at the stage of appeal, it should be considered and reasons have to be assigned. It is also contended that if the documents are received in evidence, it is obligatory on the part of the Court to consider the same and render a proper finding. Admittedly, in the judgment of the lower Court no reference whatsoever is made regarding Exs. A-15 and A-16 and according to the Counsel for the appellant it is a serious irregularity that goes to the root of the matter. I am unable to accept this contention of the learned Counsel. No doubt, under Order 41 Rule 29 of C. P. C. it is obligatory on the part of the Court to consider the documents while rendering the judgment. But the crucial question that falls for consideration is whether those documents are so vital as to tilt the balance in favour of the appellant. No doubt, under Order 41 Rule 29 of C. P. C. it is obligatory on the part of the Court to consider the documents while rendering the judgment. But the crucial question that falls for consideration is whether those documents are so vital as to tilt the balance in favour of the appellant. The important questions that were under consideration before the Court below were whether the suit schedule properties were self-acquired properties of Muneppa Reddy and whether the Will was valid. These two issues cannot be said to be influenced by induction of exs. A-15 and A-16 since they are only communications alleged to have been made between the parties, which could not and would not establish the facts in issue. Of course, lower Court ought to have considered the same and given a finding but it failed to do so since they were found not to be so vital to decide the issue between the parties. This is a curable irregularity that cannot go to the extent of upsetting the judgment of the appellate court. Thus, I am convinced that the contention raised by the learned Counsel on this aspect cannot be accepted. Coming to the other aspect, the Courts below have concurrently found that the plaintiff, on whom the burden lies to establish that the suit schedule properties were self-acquired properties of Muneppa Reddy, failed to establish the same and therefore held the issue against the plaintiff. The issue being a pure question of fact, which the appellate court also affirmed, cannot now be entertained in the second appeal. Coming to ex. B-6, the finding recorded on this aspect is based upon the evidence on record and it is a pure question of fact, which cannot be interfered with in a second appeal under section 100 C. P. C. Moreover, in the instant case, except the contention that there was violation of Order 41 Rules 28 and 29 of c. P. C. no other substantial question of law would involve in this case as the issues decided by the lower Court are pure questions of fact based on evidence on record. ( 10 ) IN the circumstances, I do not find any merit in this second appeal. It is accordingly dismissed at the admission stage.