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2007 DIGILAW 1352 (MAD)

Sarojini v. Arunachalam Pillai

2007-04-16

R.BANUMATHI

body2007
Judgment :- Aggrieved by the Judgment in A.S.No.112 of 1990, reversing the Judgment of the Trial Court and granting Permanent Injunction in favour of Respondent/Plaintiff, unsuccessful Defendant has preferred this Second Appeal. As against declining of Declaration, Respondent/Plaintiff has filed Cross Objection. 2. Suit Property relates to S.No.14/4 - 0.70.0 Hec. in Thiruvalluvar Village, Elayangudi Taluk. Case of Plaintiff is that patta was registered in the name of the Plaintiff in Patta No.780. The plaintiff was in possession and enjoyment of the Suit Property for more than statutory period and the Plaintiff has been paying the kist and has perfected his Title by way of adverse possession. Resettlement also stands in the name of Plaintiffs family members. Alleging trespass by the Defendant, the Plaintiff has filed the Suit for Declaration and for Permanent Injunction. 3. Denying the Plaint averments, the Defendant has filed Written Statement contending that the Suit Property was never included in Patta No.780 and Patta No.780 did not stand in the name of the Plaintiff. The Plaintiff fraudulently manoeuvred to obtain patta under the Updating Survey Scheme with connivance of some officials. After knowing the fraud played by the Plaintiff, the Defendant immediately moved the Revenue Authorities and the mistake was rectified after the Defendant has established her possession. According to the Defendant, she alone is in possession and enjoyment of the Suit Property along with the property comprised in S.No.19/1. It is further alleged that the Plaintiff being the erstwhile Karnam of the village has manoeuvred to obtain patta fraudulently in his name during Updating Survey Scheme. 4. On the above pleadings, five issues were framed in the Trial Court. The Plaintiff examined himself as P.W.1 and examined one Alagarsamy as P.W.2. Exs.A.1 to A.9 were marked. On the side of the Defendant, D.Ws.1 and 2 were examined and Exs.B.1 to B.5 were marked. In consideration of the evidence, the Trial Court took the view that on the basis of Ex.A.3 and kist receipts, Title of the Plaintiff cannot be upheld. The Trial Court also held that no document was produced showing title of the Plaintiff and on those findings dismissed the Plaintiffs Suit. .5. Aggrieved by the Judgment, the Plaintiff has preferred Appeal. The lower Appellate Court also recorded findings mostly against the Plaintiff, but the lower Appellate Court granted Injunction solely on the ground that the Plaintiff is in possession of the Suit Property. .5. Aggrieved by the Judgment, the Plaintiff has preferred Appeal. The lower Appellate Court also recorded findings mostly against the Plaintiff, but the lower Appellate Court granted Injunction solely on the ground that the Plaintiff is in possession of the Suit Property. Though the lower Appellate Court held that the Plaintiff has not produced any document showing his entitlement, observing rightly or wrongly the Plaintiff being in possession, proceeded to grant Permanent Injunction. .6. Challenging grant of Injunction, unsuccessful Defendant has preferred this Second Appeal. The Second Appeal was admitted on the following substantial question of law:- ."Whether the Plaintiff, who filed the Suit, seeking the relief of declaration and consequential injunction, having failed to the relief of declaration, is entitled to the injunction as prayed for, as has been granted by the lower Appellate Court?" 7. Challenging refusal of Declaration, the Plaintiff has filed Cross Objection No.60 of 1999. 8. Learned counsel for the Appellant / Defendant has contended that when lower Appellate Court itself has recorded definite findings that the Plaintiff has not proved that he is the owner of the Suit Property, the lower Appellate Court ought not to have granted Permanent Injunction to protect the possession of the Plaintiff. Taking me through Judgments of Courts below, learned counsel for Defendant has submitted that when lower Appellate Court having found that Plaintiff has not produced documents showing that he is the owner of the Suit Property, it ought to have confirmed the Judgment of the Trial Court and erred in interfering with the Judgment by granting Permanent Injunction. 9. Drawing attention of Court to various documents produced by the Plaintiff, learned counsel for the Plaintiff has submitted that the Plaintiff and his Brother being in joint possession of the property for long period and upholding his possession, patta was also granted in the name of the Plaintiff. Having regard to the documents, lower Appellate Court has rightly granted Permanent Injunction. It was further submitted that when Defendant has no semblance of right to the Suit Survey No.14/4, the courts below ought to have granted Declaration in favour of the Plaintiff. 10. When the Plaintiff seeks for Declaration of his Title to the Suit Property S.No.14/4 – 0.79.0 Hec., and Permanent Injunction, the burden of proof lies upon the Plaintiff to prove his Title and possession in the Suit Property. 10. When the Plaintiff seeks for Declaration of his Title to the Suit Property S.No.14/4 – 0.79.0 Hec., and Permanent Injunction, the burden of proof lies upon the Plaintiff to prove his Title and possession in the Suit Property. Ex.A.2 is the proceedings of the Assistant Settlement Officer, who has recommended grant of ryotwari patta for the Suit S.No.14/4 in the name of the Plaintiffs Brother – Nagalingam Pillai. When Nagalingam Pillai was held entitled to ryotwari patta in the proceedings of the Assistant Settlement Officer, it is not known as to how the Plaintiff could claim right and title in the suit property. That apart, as observed by the Trial Court, only Ex.A.2 – Proceedings of Assistant Settlement Officer has been produced. Patta issued in the name of Nagalingam Pillai was not produced. 11. Ex.A.3 is the Patta Transfer Notice issued to the Plaintiff for Patta No.780 – S.No.14/4. On the reverse of Ex.A.3, it is stated as "....4 A. uhkrhkp gps;is kfd; mUZryk; gps;is 4 B. uhkrhkp gps;is kfd; ehfyp;fk; gps;is...." Though the proposed sub division has been referred in Ex.A.3, as pointed out by Trial Court, Order of sub-division was not produced. If there was any sub division as S.No.14/4A and S.No.14/4B, the suit Survey Number should have been described in the new sub divisions. But the suit property has been described as the consolidated S.No.14/4 – 0.70.0 Hec. 12. To prove his Title, the Plaintiff has produced Ex.A.8 – Chitta for Fasli 1397 for S.No.14/4 Patta No.61. Alleging that the Plaintiff being village Karnam has manoeuvred to obtain patta fraudulently in his name during Updating Survey Scheme, the Defendant had given representation. After enquiry, patta granted in favour of the Plaintiff was cancelled as is seen from Ex.B.4 - Order of Tahsildar, Elayangudi. Presently, Patta for Suit S.No.14/4 stands in the name of the Defendant and while so, Ex.A.8 cannot be the basis for the Plaintiff to claim Title. .13. In reference to oral and documentary evidence, the Trial Court has recorded findings of fact that the Plaintiff has not proved Title to the Suit Property. Placing reliance upon the decision in 1995 L.W. 708, the Trial Court held that the Plaintiff having failed to make out a case of a valid title to the suit property cannot succeed in getting a declaration on the strength of weakness of defence. Placing reliance upon the decision in 1995 L.W. 708, the Trial Court held that the Plaintiff having failed to make out a case of a valid title to the suit property cannot succeed in getting a declaration on the strength of weakness of defence. As noticed earlier, the Trial Court observed that only proceedings of Assistant Settlement Officer – Ex.A.2 has been produced and the ryotwari patta granted either in the name of the Plaintiff or in the name of his Brother – Nagalingam Pillai was not produced. 14. Without producing the ryotwari patta before the Trial Court, before the lower Appellate Court, the Plaintiff appears to have been produced Settlement Register. In paragraph 9 of its Judgment, the lower Appellate Court has elaborately referred to the extract of Settlement Register (Fasli 1362) in which patta was said to have been issued for S.No.14/4 in the name of the Plaintiff and his Brother – Nagalingam. Lower Appellate Court did not act upon those additional documents and after strenuous reasonings discarded Resettlement register. In reference to the said Resettlement register, lower Appellate Court observed that in the absence of any materials, the then patta No.649 in the Resettlement Register cannot be correlated to the suit property. 15. Though the additional documents produced before lower Appellate Court was negatived, the lower Appellate Court appears to have been influenced by the Additional documents produced by the Plaintiff which has led the lower Appellate Court to grant Permanent Injunction. I am unable to accede to the erroneous approach of the lower Appellate Court. Under Or.41 R.27 C.P.C, production and leading of evidence in Appellate Court oral or documentary is not a matter of right. Parties can produce evidence only when the conditions laid down in Or.41 R.27 C.P.C are satisfied. The lower Appellate Court has not recorded any such satisfaction as to looking into the Additional Documents. In fact, those additional documents though referred were not given marking in the lower Appellate Court nor any Order has been passed as to the satisfaction of the conditions laid down in Or.41 R.27 C.P.C. .16. The lower Appellate Court has not recorded any such satisfaction as to looking into the Additional Documents. In fact, those additional documents though referred were not given marking in the lower Appellate Court nor any Order has been passed as to the satisfaction of the conditions laid down in Or.41 R.27 C.P.C. .16. In my considered view, the power to call additional evidence is not only to enable the Court to pronounce the Judgment, but also for any substantial cause which may include, when Court considers in the interest of Justice that it requires additional evidence, so that it can pronounce the Judgment in a more satisfactory manner. Additional evidence will not be admitted when the party had ample opportunity to produce it in Trial Court. In the present case, the Plaintiff was a village Karnam. He must have had the knowledge of the documents like Resettlement register etc., Where the Plaintiff had knowledge about the existence of the re-settlement register, but the same was not produced in the trial Court, the same ought not to have been looked into by lower Appellate Court much less without recording any reasons as to why the additional documents are essential for pronouncing the Judgment in a satisfactory manner. 17. Though the lower Appellate Court recorded elaborate reasonings against the Plaintiff, it has granted Permanent Injunction in favour of the Plaintiff on two grounds – (i) patta stands in the name of the Plaintiff and (ii) possession of the suit property is with the Plaintiff. According to the Defendant, under Ex.B.1 Sale Deed – Defendants Father – Arul Thiyagaraja Thevar has purchased S.No.19/1 and other Items of Properties from one Arunachalam Pillai. In her evidence, D.W. 1 has stated that her Father purchased S.No.19/1 and also Suit S.Nos.14/2 and her Father was in enjoyment of the Suit Property. Observing that Ex.B.1 – Sale Deed does not refer to the Suit S.No.14/1 and that the Defendant could not have paid the kist to the suit property, the lower Appellate Court proceeded to grant Permanent Injunction in favour of the Plaintiff. Lower Appellate Court also took erroneous view that when patta stood in the name of the Plaintiff, the Defendant could not have paid the kist (Ex.B.5) for the suit property. As noted earlier, patta granted in favour of the Plaintiff was cancelled as per the Order in Ex.B.4. Lower Appellate Court also took erroneous view that when patta stood in the name of the Plaintiff, the Defendant could not have paid the kist (Ex.B.5) for the suit property. As noted earlier, patta granted in favour of the Plaintiff was cancelled as per the Order in Ex.B.4. Lower Appellate Court brushed aside Ex.B.4 on trivial grounds that Ex.B.4 is subsequent to the suit. Though Ex.B.4 proceedings is subsequent to the suit, that Order was passed after due enquiry upon petitions presented by both the Plaintiff and the Defendant earlier to the Suit. Though Ex.B.4 Order is subsequent to the Suit, Ex.B.4 is a formidable evidence to be reckoned with. The Plaintiff cannot take advantage of the earlier patta granted in his name which had been subsequently cancelled. 18. The lower Appellate Court erred in brushing aside Exs.B.4 and 5 and the oral evidence of D.Ws.1 and 2. The lower Appellate Court erred in interfering with the well considered findings of the Trial Court. Though the lower Appellate Court recorded reasonings against the Plaintiff, it has committed serious error in granting the relief of Permanent Injunction when the Plaintiff has not proved his lawful right in the Suit Property. The lower Appellate Court ignored the weight of evidence and circumstances and its reasonings appear to have been influenced by the inconsequential documents of the Plaintiff. The Judgment and decree dated 211. 1991 in A.S.No.112 of 1990 of Principal District Court, Ramnad at Madurai is liable to be set aside, restoring the Judgment and decree dated 110. 1990 in O.S.No.292 of 1989 of District Munsif, Paramakudi, 19. S.A.No.1180 of 1993:- The Judgment and decree dated 211. 1991 in A.S.No.112 of 1990 of Principal District Court, Ramnad at Madurai is set aside and this Second Appeal is allowed. The Judgment and Decree dated 110. 1990 in O.S.No.292 of 1989 of District Munsif, Paramakudi is restored. Cross Objection No.60 of 1999:- This Cross Objection is dismissed. Both parties are directed to bear their own costs.