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2002 DIGILAW 449 (MAD)

Samseth Begam v. Margaret Celine

2002-06-07

PRABHA SRIDEVAN

body2002
Judgment : 1. Notice of motion was ordered in this matter and today the counsel have argued the appeal. The appellant is the defendant. The suit was filed by the respondent for injunction in respect of Schedule A and B of the plaint. There is no controversy regarding A Schedule property and therefore, this appeal restricts itself to Schedule-B. 2. The appellants did not file their written statement and were set ex parte. Two witnesses were examined and four documents were marked. The Trial Court after a detailed consideration of the oral and documentary evidence, came to the conclusion that the respondent had not proved her case. Ex-A2 is an application by the husband of the respondent to the Tahsildar, Pudukottai for certified copy of the 'A' Adangal and the 'B' Yadasthu. It was returned by the Tahsildar on the ground that since the suit property is a Government Poramboke, no such copy can be furnished. Ex-A4 is the certificate which bears the signature as well as the official seal of the Village Administrative Officer, the Revenue Inspector and the Deputy Tahsildar who had returned Ex-A2, certifying that the respondent has built a house in an extent of 0.07 cents in the suit, land. The Trial Court was inclined to disbelieve the genuineness of Ex-A2. The Trial Court had given several reasons. One of then is no such certificate as Ex-A2 is normally given by Revenue Officials. In cases of encroachment into Government land, B-memos are normally issued. Under Ex-A2, the officers refuse to give any copies of the 'A' Adangal and the 'B' Yadasthu, and further no B-memos were produced nor copies of revenue record to show the levying of B-memo. In fact the Trial Court uses very strong words to indicate the suspicion clouding Ex-A4. An advocate Commissioner was appointed and according to the Trial Court the report while recording the physical appearance of the suit property does not even contain the physical measurements of the suit property. Ex-A3 was also marked which is a receipt towards payment of electricity charge to show the respondent's possession. This was rejected by the Trial Court on the ground that this relates to 'A' Schedule property where there is a house and not 'B' Schedule property, which is a vacant site. Finally, the Trial Court relying on Vijayan v. Banusundari, ILR 1995 (1) Mad. This was rejected by the Trial Court on the ground that this relates to 'A' Schedule property where there is a house and not 'B' Schedule property, which is a vacant site. Finally, the Trial Court relying on Vijayan v. Banusundari, ILR 1995 (1) Mad. 467 held that merely because the defendant has remained ex parte the plaintiff is not automatically entitled to a decree. The learned Trial Judge further observed that injunction being an equitable remedy, only those who come to Court with clean hands and convincing evidence will be entitled to the same. 3. Against that the respondent filed an appeal. The appeal was allowed and therefore the second appeal. 4. The grievance of the appellant is that the Lower Appellate Court ought to have seen that the decree for injunction is not a consequence that follows with the filing of the suit without the Court exercising its mind as to whether the plaintiff is entitled to the same. Reliance was placed on Balraj Taneja v. Sunil Madan AIR 1999 SC 3381 , where it was held that, it is illegal to decree a suit merely because the defendants have failed to file the written statement. 5. The learned counsel for the respondent on the other hand, would submit that there was absolutely no justification to disbelieve Ex-A2 . The dates of the two documents Exs-A2 and A4 were pointed out. Ex-A4 was issued on 15.4.1998 and Ex-A2 on 16.8.1998. Therefore, the certificate regarding the possession of the respondent preceded the refusal to issue certified copies by atleast four months and what was more relevant is that the officer who issued Ex-A4 was examined as P.W.2. According to the learned counsel the respondent had done everything in his power to prove his possession and to also prove that the exhibits marked by her were genuine. According to the learned counsel, the endorsement refusing to issue the certified copy vide Ex-A2, will not militate against the case of the respondent because it cannot be construed as a document which denies the possession of the respondent. In juxtaposition to this, there is Ex-A4, where there is a categoric statement by the Village Administrative Officer regarding possession. Therefore, there was no need to interfere in second appeal under S. 100, CPC, especially when the Lower Appellate Court's findings are findings of fact. 6. In juxtaposition to this, there is Ex-A4, where there is a categoric statement by the Village Administrative Officer regarding possession. Therefore, there was no need to interfere in second appeal under S. 100, CPC, especially when the Lower Appellate Court's findings are findings of fact. 6. The following substantial questions of law arise for consideration; " 1. Whether the plaintiff is entitled to get a decree just because the defendant remains ex parte without proving possession over the suit property by convincing clinching evidence? 2. Whether the Lower Appellate Court has right in reversing the Judgment and decree of the Trial Courts on the basis that the defendant has not filed any written statement? when it is settled law that it is not automatic to get a decree as prayed for without proving his case as per rulings in Vijayan v. Banusundari, ILR 1995 (1) Mad. 467?" There is no denying the position that findings of fact cannot be lightly disturbed in second appeal. But a perusal of the Lower Appellate Court's judgment shows that the learned Judge has merely held that Exs-A3 and A4 would show the possession of the respondent without giving reasons therefor. When the first Appellate Court seeks to reverse the judgment of the Trial Court and its factual findings/ reasons should be given as to why the findings are reversed. As mentioned above the Trial Court has strongly commented about the circumstances under which Ex-A4 is alleged to have been issued. If the Appellate Court thought otherwise, it should have stated its reasons for doing so. What is more, the Lower Appellate Court holds that it is seen from Exs-C 1 and C2, the Commissioner's Report and plan, that the suit property is in the possession of the respondent. It is well-settled that a Commissioner's Report cannot be relied on for giving a finding regarding possession. When the Trial Court has stated that the Commissioner has not even given the measurements of the suit property the least that the Lower Appellate Court should do is to give reasons why it chooses to accept Ex-Cl and C2. 7. Finally, the Appellate Court also seems to have taken a negative attitude to the appellant for not filing the written statement. 7. Finally, the Appellate Court also seems to have taken a negative attitude to the appellant for not filing the written statement. This approach has been frowned upon by the Supreme Court in Balraj Taneja v. Sunil Madan, AIR 1999 SC 3380 relied on by the learned counsel for the appellant. "A perusal of the above judgment will indicate that the suit had been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the court which is natural as no Court would allow the proceedings to be delayed or procrastinated. But this should not disturb the Judicial composure which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does it record the process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved. But in the instant case, as we have already seen above, it is not merely a matter of the defendants' conduct in not filing the written statement but the question of law as to what the Court should do in a case where written statement is not filed is involved and this question has to be decided so as to provide for all the Lower Courts as to how the Court should proceed in a situation of this nature." The Trial Court had exercised its discretion in one way. If the Appellate Court wants to hold that such exercise is not supported either by oral or documentary evidence then it should give its reasons why the decision of the Trial Court is interfered with. Merely stating that all the exhibits are accepted and therefore, possession is found in favour of the respondent will not be a proper exercise of the power of the final Court of fact. 8. In these circumstances, the substantial questions of law are answered in favour of appellant and the judgment and decree of the Lower Appellate Court is set aside and the second appeal is allowed and remitted to the Lower Appellate Court which shall consider the pleading's and evidence and proceed to dispose of the appeal in accordance with law within four months from the date of receipt of the copy of this order. The learned counsel for appellant seeks permission to file his written statement before the Appellate Court. The learned counsel for appellant seeks permission to file his written statement before the Appellate Court. Permission is granted on terms. The Lower Appellate Court shall receive the written statement filed by the appellant upon proof of payment of costs of Rs.1000 to the respondent on or before 28.6.2002 failing which the Appellate Court shall dispose of the appeal without the written Statement.