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2001 DIGILAW 1281 (MAD)

Subbiah v. Esther Ponnammal

2001-10-30

A.KULASEKARAN

body2001
Judgment : Defendant is the appellant in this second appeal. The Courts below concurrently held against the defendant. In this appeal, the appellant is referred to as the defendant and the respondent as the plaintiff. 2. The suit in O.S.No.249 of 1985 was filed by the plaintiff for bare injunction restraining the defendant from interfering with her possession and enjoyment of the suit property which was a poramboke land. The said suit was decreed in favour of plaintiff on 28.1.1987 and the defendant has filed fist appeal which was also dismissed on 23.2.1990, hence the present second appeal is preferred. Pending the second appeal, the defendant has filed C.M.P. No.15733 of 1995 for receiving additional evidence and this Court directed to post the said petition along with the main case. 3. Prior to the filing of the said suit, O.S.No.249 of 1985, the plaintiff has filed O.S.No.253 of 1984 on 19.4.1984 against one Doraisamy the vendor of the defendant herein, the Tahsildar of Tuticorin Town and the District Collector, Tirunelveli with a prayer to, (i) declare that the plaintiff is entitled to get the assignment of the plaint scheduled land and consequently directing the second defendant to assign the land to the plaintiff. (ii) pass an order of permanent injunction against the second defendant restraining them from issuing patta to the 1st defendant for plaint schedule land of Tuticorin, (iii) order eviction of the 1st defendant from the plaint schedule land and put the plaintiff in possession of the same. I.A.No.117 of 1988 in O.S.No.253 of 1984 was filed by the plaintiff for amendment of the plaint which was dismissed on 13.3.1989. Ultimately, the said suit was dismissed for default on 14.12.1990. The plaintiff also filed C.R.P. No.1038 of 1989 before this Court against the order in I.A.No.117 of 1988 dated 13.3.1989 which was dismissed by this Court on 4.5.1990 wherein it was observed as follows: “Indeed it is seen that the reliefs prayed for originally in the plaint and sought to be introduced by way of the amendment are contradictory. The plaintiff also filed C.R.P. No.1038 of 1989 before this Court against the order in I.A.No.117 of 1988 dated 13.3.1989 which was dismissed by this Court on 4.5.1990 wherein it was observed as follows: “Indeed it is seen that the reliefs prayed for originally in the plaint and sought to be introduced by way of the amendment are contradictory. In any event, having regard to the filing of the suit by the petitioner in O.S.No.248 of 1985 against the transferee from the first defendant in this suit, it would be open to the petitioner to urge all grounds relating to the invalidity of the title of the first defendant in the suit and consequently, the title of the transferee from the first defendant, who is the defendant in O.S.No.248 of 1985. The civil revision petition is, therefore, dismissed. No costs.” It is seen from the said order dated 4.5.1990 that the plaintiff herein was given liberty to urge all the grounds relating to the invalidity of the title of Doraisamy in the suit O.S.No.249 of 1985. It is more important to mention at this juncture that even before the disposal of the civil revision petition, the first appellate Court has dismissed the appeal on 23.2.1990 confirming the judgment and decree passed by the trial Court in O.S.No.249 of 1985. The abovesaid fact was not brought to the notice of this Court by the plaintiff. 4. The C.M.P. No.15733 of 1995 was filed by the defendant to receive the additional evidence viz., (i) the plaint dated 19.4.1984 in O.S.No.253 of 1984, (ii) written statement dated 26.3.1985 filed by the vendor of the defendant herein, (iii) written statement dated 17.1.1986 filed by the Tahsildar and Collector of Tirunelveli, (iv) the order dated 13.3.1989 passed in O.S.No.253 of 1984 and (v) the suit register extract in O.S.No.253 of 1984. It is seen from the affidavit filed in support of the said C.M.P., that the defendant has come to know about the dismissal of the earlier suit in O.S.No.253 of 1984 only in March, 1995, he has immediately applied for certified copies of the same which were delivered on 21.4. 1995. Admittedly, the defendant is not a party in the suit O.S.No.253 of 1984. 1995. Admittedly, the defendant is not a party in the suit O.S.No.253 of 1984. The learned counsel appearing for the plaintiff opposed, in second appeal this Court cannot go into the question of fact,O.42, C.P.C. made it clear that provisions ofO.41 would apply to second appeal, therefore for additional evidence cannot be permitted. He relied upon Anisetti Bhagyavathi v. Andaluri Satyanarayana A.I.R. 1992 A.P. 304 wherein it was held as follows: “13. Thus, from the above discussion it is clear that the High Court while hearing the second appeal cannot go into the question of fact. Therefore, the application for admitting additional evidence in a review petition in second appeal, where such evidence was within the knowledge of the party seeking production of the same, or could not have been produced with due diligence at the time the decree was passed in second appeal cannot be entertained.O.42, C.P.C. which says that the provisions ofO.41 would apply to second appeal, has qualified the same by adding the expression” as far as may be“. Therefore, the contention that in view of the provisions ofO.41, Rule 27, C.P.C. additional evidence has to be permitted in second appeal, cannot be accepted.” The facts leading to the said decision was that a suit for possession was decreed by the trial Court, the appellate Court confirmed the judgment and decree of the trial Court. Second appeal by the 1st defendant was dismissed and thereafter a review petition was filed by the 1st defendant on the ground that she had discovered a new and important evidence, which after exercise of due deligence was not within her knowledge, hence could not be produced by her at the time the decree was passed in the second appeal. The said decision is not applicable for more then one reason. The facts mentioned in the said case is totally a different from the facts of the case on hand. Admittedly, the plaintiff in earlier suit O.S.No.253 of 1984 sought for a relief of eviction of Doraisamy, contrary to the said facts, she sought for injunction in this suit on the ground of his possession of the suit property. The earlier suit filed by the plaintiff was dismissed for default. The plaintiff has not explained as to when she has acquired possession of the suit property after filing the earlier suit. The earlier suit filed by the plaintiff was dismissed for default. The plaintiff has not explained as to when she has acquired possession of the suit property after filing the earlier suit. In the said judgment, the Division Bench of the Andhra Pradesh High Court had no occasion to consider Sec.107, C.P.C. Sec.107 of the Act enables a appellate Court to take additional evidence or to require such other evidence to be taken subject to such condition and limitation as are prescribed underO.41, Rule 27, Ordinarily, appellate Court should not travel outside the record of the lower Court and cannot take evidence of appeal, however Sec.107(d) of C.P.C. is an exception to general rule and additional evidence could be taken only when the conditions and limitations laid down in the said rule are found to exist. Admission of additional evidence is entirely in the discretion of the Court, which is, of course, to be exercised judicial and sparingly. In order to adjudicate the matter effectively and to meet the ends of justice it is absolutely necessary for this Court to allow the petition for additional evidence filed by the defendant. Hence, I have no hesitation to allow this C.M.P. 5. This Court at the time of admission of the second appeal framed the following substantial questions of law. (a) Whether the findings of the Court below that the plaintiff has purchased the property benami in the name of Doraisamy is correct in view of the Benami Transactions (Prohibition) Act, 1988?: (b) Whether it is correct for the Courts below to arrive at such a conclusion that the plea of Benami has not been taken in the plaint? 6. The trial Court and the first appellate Court concurrently held that the suit property was in possession and enjoyment of the plaintiff. Exs.A-1 to A-3, B Memo receipts are issued by the authorities in favour of one Oorkavalan who is the original occupier of the suit property. Exs.A-4 to A12 are tax receipts issue in the name of Doraisamy i.e., the vendor of the defendant. Exs.A-14 and A-15 are house tax receipts for the payment made by Oorkavalan relating to the hut, which originally located in the suit property. Exs.A-21 and A-22 are receipts issued by the Electricity Board in the name of plaintiffs husband relating to service connection in one of the houses in the suit land. Exs.A-14 and A-15 are house tax receipts for the payment made by Oorkavalan relating to the hut, which originally located in the suit property. Exs.A-21 and A-22 are receipts issued by the Electricity Board in the name of plaintiffs husband relating to service connection in one of the houses in the suit land. Exs.A-16 to A-20 relating to the period 1980-1981 and 1981-1982 are tax receipts issued by the local Panchayat in favour of the plaintiff relating to the suit land. Ex.A-23, dated 15.9.1980 and Ex.A-24 dated 11.4.1984 both are representations sent by the plaintiff to the Collector requesting him to issue patta in her name. Ex.A-25 dated 11.4.1984 is the telegram issued by the plaintiff to the Tahsildar not to issue patta relating to the suit property in the name of Doraisamy. Thereafter, the suit in O.S.No.253 of 1984 was filed by the plaintiff against the said Doraisamy, the District Collector of Tirunelveli and the Tahsildar, Tuticorin. Pending suit, it is alleged that Ex.A-26 was executed by the said Doraisamy in favour of the defendant relating to the suit property. It is the case of the defendant that under Ex.B-1 the patta was issued to his vendor considering the long and continuous possession. Both the Courts had refused to accept Ex.B-1 as a valid document since it is only a Photostat copy. The first appellate Court had further found that under Ex.B-1 the said Doraisamy was prevented from alienating the same for a period of ten years. Even assuming that under the said document the patta was given in his favour, the alienation under Ex.A-26 is violative of the conditions. The Courts below refused to accept Ex.B-1, Patta issued in favour of the said Doraisamy as early as on 19.5. 1984 by the revenue officials on the sole ground that it was a xerox copy. But, both the Courts has taken cognizance of the said document and found that the said Doraisamy was prohibited from selling the suit property for a period of ten years as per the terms contemplated therein, which is unsustainable in Law. Ex.B-2 is the kist receipt for the fasli 1388-1392, Ex.B-3 is the kist receipt for the fasli 1392-1393, Ex.B-4 is the kist receipt for the fasli 1394 issue din the name of Doraisamy. Ex.B-2 is the kist receipt for the fasli 1388-1392, Ex.B-3 is the kist receipt for the fasli 1392-1393, Ex.B-4 is the kist receipt for the fasli 1394 issue din the name of Doraisamy. Ex.B-5 is the house tax receipt for the period 1982-1983 1st part, Ex.B-6, house tax receipt for the period 1982-1983 2nd part, Ex.B-7 is the house tax receipt pertaining to 1983-1984 2nd part, Ex.B-8, house tax receipt for the period 1983-1984 1st part, Ex.B-9, house tax receipt for the period 1984-1985 1st and 2nd parts, Ex.B-10 house tax receipt for the period 1985-1986 1st part were issued in the name of Doraisamy, Exs.B-11 and B-12 are property tax demand register for the period 1984-1985 and 1985-1986 respectively issued to Doraisamy. Ex.B-13 dated 30.11.1983 is the voters list where the name of the Doraisamy is found in the suit address. Ex.B-14 is the notice issued by the Tahsildar to Doraisamy calling upon him to pay the cost of the lands, which is the subject matter of the suit on instalment basis. Ex.B-15 dated 9.5.1980 is the notice issued by the Tahsildar calling upon the said Doraisamy to appear in person for the enquiry relating to assignment of the land in despite. Ex.B-16 is the notice issued by the Tahsildar calling upon Doraisamy to pay the cost of the land, Ex.B-17 is the notice dated 16.4.1980 issued by the Tahsildar to Doraisamy demanding the instalments payable to the suit land, Ex.B-18 is the xerox copy of the family ration card issued in favour of the Doraisamy to the suit mentioned address. Exs.B-19 and B-20 are challan receipts paid by Doraisamy to the suit land towards sale consideration. Ex.B-21 dated 22.10.1986 and Ex.B-22 dated 15.6.1986 are house tax receipts issued by the Municipality in favour of the defendant. The documents filed by the defendant in support of his claim that he and his vendor namely Doraisamy were in possession of the suit property at the time of filing the suit, but the Courts below failed to consider the said documents without assigning any valid reasons. Non-consideration of the valid evidence is perverse. The Court below erred in holding that the said Doraisamy was a rickshaw man that he has no means to purchase from Oorkavalan; that the plaintiffs husband has purchased it in the name of Doraisamy. Non-consideration of the valid evidence is perverse. The Court below erred in holding that the said Doraisamy was a rickshaw man that he has no means to purchase from Oorkavalan; that the plaintiffs husband has purchased it in the name of Doraisamy. The Courts below have committed a grave mistake by giving such invalid finding in the absence of pleadings and evidence. 7. This Court well aware that in the second appeal it is not correct to reappreciate the documents and oral evidence, but have thoroughly failed to consider the material evidence. The omission to consider material evidence is a valid ground for interference by this Court in the second appeal though concurrent findings are made by the Courts below. This Court is also conscious of the dictum laid down by the Hon’ble Supreme Court relating to the power of the High Court under Sec.100, C.P.C. 8. As pointed out by me above, in the pleadings of the plaintiff, nothing whispered that her husband purchased the property from Oorkavalan in the name of Doraisamy. In the absence of any pleadings the Courts below are not correct in holding that the suit property was purchased in the name of Doraisamy, hence both the substantial questions are answered in favour of the defendant. It is seen from the additional evidence that the earlier suit filed by the plaintiff in O.S.No.253 of 1984 on the ground that the said Doraisamy was in possession of the suit property and sought for the relief of eviction against the said Doraisamy. The documents filed by way of additional evidence are absolutely necessary to resolve the dispute between the parties. As the Courts below failed to consider the material documents, this Court has no alternative except to set aside the judgments of the Courts below and remit the matter back to the first appellate Court for fresh consideration. I am aware that the remand is made after a long period of 15 years but there is no alternative except to remit the matter to the first appellate Court for fresh consideration. 9. In the said circumstances, the second appeal is allowed, the judgment and decrees of the Courts below are set aside and the appeal stands remitted to the first appellate Court for fresh consideration. It is open to the parties to let in further oral or documentary evidence. 9. In the said circumstances, the second appeal is allowed, the judgment and decrees of the Courts below are set aside and the appeal stands remitted to the first appellate Court for fresh consideration. It is open to the parties to let in further oral or documentary evidence. I direct both the parties to appear before the first appellate Court on 29.1.2002. The Registry is also directed to send back the records to the first appellate Court within four weeks from today.