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2000 DIGILAW 773 (MAD)

Angamuthu Asari v. Periyan

2000-08-04

M.KARPAGAVINAYAGAM

body2000
Judgment : 1. Angamuthu Asari, the plaintiff filed the suit for declaration of title and for permanent injunction in respect of the suit property against the defendant Periyan. The trial Court dismissed the suit. Aggrieved by that, the plaintiff filed an appeal before the first appellate Court, which in turn dismissed the same. Hence, this second appeal by the plaintiff/appellant having lost in both the Courts below. 2. The case of the appellant/plaintiff in brief is as follows: “The suit property originally belonged to the Government. The Special Tahsildar assigned the suit property to one Ramasamy Pillai. The said Ramasamy Pillai died intestate about 10 years ago leaving his four sons as his legal heirs. The plaintiff purchased the suit property from them under the sale deed dated 20.11.1980. From then onwards, the plaintiff has been in possession and enjoyment of the suit property paying kist. The defendant being a Sarkar Thotti in the village is attempting to trespass into the property and harvest the paddy crops raised by the plaintiff. Hence, the suit for declaration of title and permanent injunction.” 3. The case of the respondent/defendant is as follows:“The plaintiff cannot claim legal title to the suit property as the legal heirs of Ramasamy Pillai had no right to sell the suit property to the plaintiff. In the deed of assignment by which the property was assigned to Ramasamy Pillai, there is a condition that it should not be sold to any person other than a person belonging to Scheduled Caste. The sale deed stated to have been executed to the plaintiff who is not a Harijan, cannot be valid, since such a sale is in violation of the conditions contained in the deed of assignment. Earlier, there was a dispute with reference to the possession of the suit property and the matter went to the Sessions Court and then to the High Court. Both the forums held that the defendant alone is in possession and enjoyment of the property. The suit property was enjoyed by his father earlier and after the death of his father, the defendant has been in enjoyment for about 30 years. Hence, the plaintiff would be entitled to any relief sought for in the suit.” 4. Before the trial Court, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-14 were marked. Hence, the plaintiff would be entitled to any relief sought for in the suit.” 4. Before the trial Court, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-14 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-11 were marked. 5. On consideration of the evidence, oral and documentary, the trial Court dismissed the suit filed by the plaintiff holding that the plaintiff had not established either title or possession. The said judgment and decree were challenged by the plaintiff before the first appellate Court, which in turn dismissed the same confirming the judgment and decree of the trial Court. 6. Challenging these judgments and decrees, Mr.P.Valliappan, learned counsel appearing for the appellant/plaintiff would argue at length stating that both the courts below have committed serious illegality by giving the finding arrived at by them and as such, the second appeal has to be allowed. 7. In support of the finding of both the Courts below, Mr.D.Rajagopalan, learned counsel appearing for the respondent/defendant with equal vehemence would plead that there is not illegality whatsoever in the conclusion arrived at by both the Courts below and as such, the second appeal is liable to be dismissed. 8. When the second appeal came up for admission, this Court ordered notice of motion directing for the issue of notice to the respondent. On receipt of the notice, the counsel for the respondent entered appearance and as agreed by both the parties, the matter was taken up for final disposal and the counsel for both the parties were heard at length. 9. Mr.P.Valliappan, learned counsel for the appellant though raised several substantial questions of law in the memorandum of appeal grounds would specifically argue on two important questions of law. The gist of the said questions of law is as follows: .(i) Whether the judgment of the lower appellate Court, devoid of points for determination as contemplated under O.41, Rule 31 of the Code of Civil Procedure is sustainable in lawe .(ii) When Exs.B-5 and B-6 relate to criminal proceedings and when it cannot be relied on for the purpose of establishing the factum of possession in a civil suit, whether the Courts below are correct in law in adverting to Exs.B-5 and B-6 to hold that the respondent is in possession over the suit propertiese .10. In elaboration of the above questions of law, the learned counsel for the appellant would cite several authorities in support of his argument that the failure by the appellate Court to frame thepoint for determination as provided under the provisions of O.41Rule 31, C.P.C. which is mandatory would vitiate the judgment of the appellate Court and that Exs.B-5 and B-6, the judgment of criminal court, in law are not admissible in a civil suit and both the Courts below have arrived at the conclusion only on the basis of those documents and consequently, the judgments and decrees by both the Courts have to be set aside. 11. On the other hand, the learned counsel for the respondent would submit that there is a substantial compliance of O.41, Rule 31, C.P.C. and even if assuming that Exs.B-5 and B-6 are not admissible, the other materials available on record would clearly show that the defendant alone was in possession all along. 12. Let us now go into the first question relating to the noncompliance of the provisions under O.41, Rule 31, C.P.C. 13. In Vishwas v. Ghasiram , A.I.R. 1975 Bom. 278; Kottiammal (Died) it has been specifically held, in the light of the provisions of O.41, Rule 31, that the first Appellate Court shall frame points for consideration and then decide the same by considering various materials available on record and failure to do the same which is mandatory would invalidate the judgment and decree of the first appellate Court. 14. Per contra, the learned counsel for the respondent would cite the decisions in K.Nanjappa Gounder v. S.R.Veluswamy K.Nanjappa Gounder v. S.R.Veluswamy K.Nanjappa Gounder v. S.R.Veluswamy, (1999)2 L.W. 410 ; Sivaprakasam Mudaliar to show that the judgment cannot be vitiated merely for want of framing of such a point for consideration in a case where the appellate Court considered the entire evidence on record and discussed the same in detail and ultimately came to the conclusion supported by the reasons. 15. In the present case, the lower appellate Court referred to all the issues framed by the trial Court as issue Nos.1 to 7. In para. 10, the lower appellate Court has framed a point for determination which is as follows: “Whether the appeal is to be allowed and whether the judgment and decree of the trial Court are to be set asidee” 16. In para. 10, the lower appellate Court has framed a point for determination which is as follows: “Whether the appeal is to be allowed and whether the judgment and decree of the trial Court are to be set asidee” 16. The above point for determination had been framed only on the basis of the points raised in the memorandum of appeal grounds. The question is, whether this would be the substantial compliance of the provisions of O.41, Rule 31. 17. O.41, Rule 31, C.P.C. is as follows: “The judgment of the Appellate Court shall be in writing and shall state-- .(a) the points for determination; .(b) the decision thereon; .(c) the reason for the decision; and .(d) where the decreed appealed from is reversed or varied, the relief to which the appellant is entitled; and shall bear the date on which it is pronounced and shall be signed by the Judges concurring therein; Provided that, where the presiding Judge is specially empowered by the High Court to pronounce his judgment by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary be signed by the Judge.” 18. As indicated above, the lower appellate Court has given a decision by giving reasonings to confirm the judgment and decree passed by the trial Court. Under those circumstances, it cannot be contended that there is no substantial compliance of the O.41, Rule 31, C.P.C. .19. In this context, the observation of Hon’ble Srinivasan, J. (as he then was ) made in the judgment reported in Sivaprakasam Mudaliar v. Selvaraj Padayachi Sivaprakasam Mudaliar v. Selvaraj Padayachi Sivaprakasam Mudaliar v. Selvaraj Padayachi , (1992)1 L.W. 22 is quite relevant, which is as follows: .“In this second appeal three questions are raised as stated in the beginning. The first point argued by learned counsel for the appellant is that judgment of the lower appellate Court is vitiated for want of framing of a point for consideration by the appellate Judge. After setting out the pleadings of both the parties and the conclusion of the trial Court, the appellate Judge proceeded to discuss the merits of the case and the evidence on record. Ultimately he gave a finding that the plaintiffs had title to the property and the judgment of the trial Court had to be affirmed. After setting out the pleadings of both the parties and the conclusion of the trial Court, the appellate Judge proceeded to discuss the merits of the case and the evidence on record. Ultimately he gave a finding that the plaintiffs had title to the property and the judgment of the trial Court had to be affirmed. Learned counsel for the appellant contends that under O.41, Rule 31, C.P.Code, it is the duty of the Court to frame the points for consideration and to give findings thereon with reason to support these findings. I am of the view that in the present case the judgment is not vitiated for want of framing of such a point. Though a point has not been framed by the appellate Judge, he considered the entire evidence on record and discussed the same in detail and ultimately came to the conclusion. His findings are supported by his reasons. Hence there is substantial compliance with the provisions of O.41, Rule 31, C.P.C. and judgment is not in any manner vitiated by the absence of a point.” 20. In the instant case, the lower appellate Court, in the light of the issues framed by the trial Court which have been referred to in the judgment of the lower appellate Court, framed a point for determination as to whether the appeal is to be allowed and whether the trial Courts judgment and decree are liable to be set aside. Under those circumstances, in my view, there is substantial compliance of the provisions of O.41, Rule 31, C.P.C. 21. In a similar circumstance, Hon’ble Jagadeesan, J. also in the judgment reported in K.Nanjappa Gounder v. S.R.Veluswamy K.Nanjappa Gounder v. S.R.Veluswamy K.Nanjappa Gounder v. S.R.Veluswamy , (1999)2 L.W. 410 after having considered all the decisions earlier referred to by this Court would conclude that when the lower Appellate Court has considered all the materials and decision given thereon on the reasonings after having framed the points as to whether the appeal is to be allowed and whether of judgment and decree of the trial Court are liable to be set aside, it would be substantial compliance of the provisions of O.41, Rule 31, C.P.C. Therefore, the first contention would fail. 22. 22. The learned counsel for the appellant would contend that both the Courts below ought not to have considered Exs.B-5 and B-6, which are the orders made in the criminal proceedings to come to the conclusion that the respondent was in possession of the property. 23. There is no quarrel over this proposition of law, since this is settled principle as laid down in the decisions in Mahabir v. Ram Narain , A.I.R. 1959 Pat. 406; Narayanan But, the question that arises for consideration in this case is whether the plaintiff has proved his title and possession by adducing acceptable materials. 24. Both the Courts below have considered the evidence of P.W.1, the plaintiff and the documents produced by him. Even when Exs.B-5 and B-6 are ignored, there is no difficulty in holding that under Ex.A-1, the property in question cannot be sold by the person to whom the property was assigned by the Tahsildar, to any other person other than the person belonging to the Scheduled Caste, Admittedly, the plaintiff belongs to Asari Caste. 25. It is no doubt true that Ex.A-2, the sale deed executed in 1980 would show that the property was purchased from the legal heirs of the assignee in the year 1980. But, this is purely in violation of the condition contained in Ex.A-1. It is also noticed that the plaintiff was able to get Patta and other Kist receipts in pursuance of the sale deed. But, on this basis, the Court cannot give declaration of title, especially when the validity of the sale deed has been questioned by the defendant by pointing out the clause relating to prohibition of sale under Ex.A-1. 26. In this context, it is relevant to refer to the judgment of the Division Bench of this Court rendered in C.Arumugathan v. S.Muthuswamy C.Arumugathan v. S.Muthuswamy C.Arumugathan v. S.Muthuswamy , (1991)1 L.W. 63 in which it is held that if the assignment prescribes any condition that on alienation should be made to any person other than the Scheduled Caste person and that if it is done, the said alienation is not valid. 27. Furthermore, P.W.2 Karnam, who is a scribe of the sale deed did not support P.W.1 with regard to possession. As a matter of fact, P.W.2 is a Karnam who is to collect the kist from the landowners. 27. Furthermore, P.W.2 Karnam, who is a scribe of the sale deed did not support P.W.1 with regard to possession. As a matter of fact, P.W.2 is a Karnam who is to collect the kist from the landowners. In this case, the kist receipts have been produced by both the plaintiff and the defendant. In such a situation, P.W.2 is a proper person to speak about possession. On the other hand, P.W.2 both in chief and cross would admit that he did not know who was actually in possession and enjoyment of the property. .28. But on the other hand, on the side of the defendant, D.W.2 and D.W.3 would clearly state that the property in question was in possession of the defendants family for about 30 years. According to them, the defendants father was in possession and enjoyment and subsequent to his death, the defendant has been in possession. So, in the light of the oral evidence of D.Ws.1 to D.W.3 supported by documents, there is nothing wrong in the finding of the trail Court as well as the lower appellate Court to hold that the plaintiff had not established his title as well as the possession and enjoyment. 29. In view of the circumstances stated above, I do not find any substantial question of law so as to interfere with the findings of both the Courts below, which, in my view, are correct and valid. Consequently, the second appeal is dismissed. No costs.