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2011 DIGILAW 1581 (MAD)

Kumaresan (died) v. Sevvel

2011-03-21

G.RAJASURIA

body2011
Judgment :- 1. This second appeal is focused by the defendants animadverting upon the judgment and decree dated 19.08.2010 passed in A.S. No. 6 of 2010 by the learned Subordinate Judge, Mettur reversing the decree and judgment dated 22.01.2010 passed in O.S. No.294 of 2005 by the District Munsif Court, Mettur. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking before the trial court. 2. Compendiously and concisely, the relevant facts which are absolutely necessary and germane for disposal of this second appeal wound run thus:- (a) The plaintiff, who is the respondent herein, filed the suit in O.S. No. 294 of 2005 seeking the following relief:- "To declare that the plaintiff is the owner of the schedule described property and for a consequential injunction restraining the defendants or their men from in any way interfering with the same and for costs." (b) Written statement was filed by the first defendant resisting the suit, which was adopted by the defendants 2 and 3. (c) Whereupon, the trial court framed the relevant issues. (d) The Plaintiff Sevvel examined himself as PW1 and Exs. A1 to A11 were marked. On the side of the defendants, the first defendant Mahendran was examined as DW1 and four other witnesses were examined as DWs 2 to 5. Exs. B1 to B14 were marked. Exs. X1 to X5 were also marked as Court documents. (e) Ultimately, the trial court decreed the suit granting a decree in respect of the suit property, except relating to the thatched house bearing Door No.5/5-27 in Survey No.521/3, which according to the trial court was in the occupation of the defendants. Being aggrieved by and dissatisfied with the same, the Plaintiff filed A.S. No. 6 of 2010 before the first appellate Court, challenging and impugning the decree and judgment of the trial court in so far as it relates to non-granting of the relief in respect of the said house. The first appellate Court, after hearing both sides, set aside that much portion of the judgment and decree of the trial court in favour of the defendants and decreed the suit even in respect of the said house in favour of the plaintiff. 3. The first appellate Court, after hearing both sides, set aside that much portion of the judgment and decree of the trial court in favour of the defendants and decreed the suit even in respect of the said house in favour of the plaintiff. 3. Challenging and impugning the judgment and decree of the first appellate Court, this second appeal has been filed by the defendants/appellants on various grounds inter alia to the effect that the first appellate Court failed to take into account the factual as well as legal issues. 4. The following substantial questions of law are found suggested in the grounds of appeal:- (1) Whether the findings of the first appellate Court, casting the burden of proof on the defendant on the entire question of facts pleaded by the plaintiff are not hit by Section 101 of Indian Evidence Act, 1872? (2) Whether the first appellate Court is not erred in reversing the judgment and decree of the trial court based on the pleadings substantiate by legal evidence on record? (3) Whether the findings of the lower appellate Court on title of the thatched house without any pleadings in the plaint and legal evidence would be correct in the eye of law? (4) Whether the first appellate Court is correct in shifting the burden of proof other than onus is not hit by Indian Evidence Act, 1872? (5) Whether reversing of judgment and decree by the Appellate Court without having any discussion on substantial findings of the trial court based on the legal evidence available on record is not hit by the procedure in practice so far followed in Common Law Courts? (6) Whether the order made in the first appeal is not beyond the jurisdiction contemplated under Section 96 read with Order 41 of Code of Civil Procedure Code? 5. Heard both sides. After hearing the counsel for both sides, I have been of the considered view that in this appeal, it has to be seen (i) whether the First Appellate Court was justified in reversing the portion of the judgment and decree of the trial court in not granting the relief of injunction in favour of the defendants, based on Exs. B6 and Ex.X1 and the evidence of the public officials, DWs 4 and 5? and (ii) Whether there is any perversity or illegality in the decree and judgment passed by the first appellate Court. B6 and Ex.X1 and the evidence of the public officials, DWs 4 and 5? and (ii) Whether there is any perversity or illegality in the decree and judgment passed by the first appellate Court. Points 1 and 2: These points are taken together for discussion as they are interlinked and interconnected with each other. 6. The gist and kernel of the argument of the learned counsel for the defendants/appellants would run thus:- a) One Muthusamy Nayagar had five sons namely Vaithiyalingam, Kumaresan (first defendant), Subramanian, Maragadha Vadivel and Seveel (plaintiff) and four daughters. The said Muthusamy Nayagar owned several properties, including the suit properties. It is the contention of the plaintiff that there was an oral partition that took place 40 years ago among the sons of deceased Muthusamy Nayagar. Subsequently, the plaintiff purchased the share of his brothers namely Vaithiyalingam and Subramanian. While so, according to the plaintiff, without any rhyme or reason, the plaintiff's another brother Kumaresan, the first defendant, and his two sons namely the defendants 2 and 3, did attempt to barge into the suit property and occupy certain portions; whereupon, the plaintiff was constrained to file the suit. 7. Per contra, in a bid to torpedo and pulverse the arguments as putforth and setforth on the side of the appellants, the learned counsel for the plaintiff/respondent herein would advance his arguments, which could tersely and briefly be set out thus:- (a) The theory of oral partition was nothing but a falsity, dished out purely for the purpose of gaining undue advantage in the litigative process and the defendants are in possession of the house bearing Door No.5/5-27 (b) The defendants have been in possession and enjoyment of the said house for over 40 years and the plaint averments were silent in this regard, however, only in the schedule of property appended to the plaint, two structures were found specified. (c) The sale deed Ex.A9 dated 03.05.1980 is bereft of any reference to these structures. Simply because Exs. A1 and A9 would refer to the sale effected by two brothers in favour of the plaintiff, that it does not mean that there was really an oral partition (d) The evidence adduced on the side of the defendants was misread by the first appellate court and certain version given by DW2 out of context in his deposition were mis-interepted. A1 and A9 would refer to the sale effected by two brothers in favour of the plaintiff, that it does not mean that there was really an oral partition (d) The evidence adduced on the side of the defendants was misread by the first appellate court and certain version given by DW2 out of context in his deposition were mis-interepted. (e) The first appellate Court also wrongly understood the tax receipt, Ex.B6 and upset the clear findings given by the trial court to the effect that the defendants have been in possession and enjoyment of the house bearing Door No.5/5-27. (f) The first appellate Court, without any reasons simply disagreed with the views of the trial court and granted injunction even in respect of the said house bearing Door No.5/5-27 and (g) At any rate, the first appellate Court was not justified in reversing the well considered decree and judgment of the trial court. Accordingly, he would pray for setting aside the decree and judgment of the first appellate Court. 8. A bare perusal of the judgment and decree passed by the trial court would demonstrate and display that the trial court believed the theory of oral partition, however, placing reliance on Ex.X1 and B6, as well as the deposition of the public officials namely DWs 4 and 5, the Court held that even on the date of filing of the suit, the defendants were in possession of the said hut. As against the findings of the trial court, the defendants have not preferred any appeal and it was the plaintiff, who preferred the first appeal questioning and impugning the rejection of part of his claim. The Honourable Apex Court in (Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak) 2010 7 SCC 717 , has held that it is settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections before the first appellate Court. 9. It is crystal clear from the aforesaid precedent that if a person fails to file an appeal as against the adverse findings against him, then such a person cannot be permitted to agitate as against such findings subsequently. 9. It is crystal clear from the aforesaid precedent that if a person fails to file an appeal as against the adverse findings against him, then such a person cannot be permitted to agitate as against such findings subsequently. The defendants, in the absence of any cross-appeal before the first appellate Court, are precluded and prevented from agitating the findings rendered by the first appellate Court in this second appeal. The trial court rendered certain findings against the defendants in respect of title over the suit property, but they have not chosen to file any cross-appeal before the first appellate Court, even though the plaintiff filed an appeal as against the rejection of part of the claim made by him. The defendants, for the first time, in this Second Appeal, cannot try to canvass that the findings rendered by the trial court are perverse in respect of title, without filing any appeal before the first appellate Court. At the most, to the limited extent, they can argue for getting the findings of the first appellate Court set aside, if they are contrary to the evidence adduced before the trial court. 10. The trial court, while giving its finding has categorically pointed out that there are two houses in the suit property which is a larger area. According to the trial court, the said larger area was allotted to the share of Vaithialingam, one of the co-sharers. However, the first appellate Court would hasten to add that out of the two structures, one was modified by the plaintiff and a new concrete structure was raised, which is bearing Door No. 5/4-10(A). As such, if the trial court judgment is read, it would evince and evidence that the trial court accepted the theory of the plaintiff that Vaithialingam's share was purchased by him so to say, the entire share, including the land over which the two structures are standing. However, the trial court would hold that the hut bearing Door No. 5/5-27 is in the occupation of the defendants and accordingly, the prayer of the plaintiff for injunction relating to the said hut was dismissed. As against such a finding, there was no first appeal or cross-appeal filed by the defendants before the first appellate Court. 11. The first appellate Court, in para Nos. As against such a finding, there was no first appeal or cross-appeal filed by the defendants before the first appellate Court. 11. The first appellate Court, in para Nos. 14 and 15 referred to the tax receipt and other aspects and without detailing its specific reason to disagree with the findings of the trial court with regard to non-granting of injunction, seems to have jumped to the conclusion as though the plaintiff is entitled to get injunction even in respect of the hut bearing No. 5/5-27. No doubt, the first appellate Court highlighted certain mistakes in Ex.B6, which even the trial court adverted to. The trial court would refer to the evidence of DWs 4 and 5, who are the public officials and Ex.X1, the particulars furnished by the Special Grade Town Panchayat, had correctly disambiguated the ambiguity in Ex.A6, but the first appellate Court, did not advert to any such salient features and simply jumped to the conclusion that the plaintiff is entitled to an injunction even in respect of the said hut bearing Door No.5/5-27. In Ex.B6, no doubt, there is some prima facie mistake, as highlighted by the learned counsel for the plaintiff. Ex.B6 is the property tax receipt dated 13.05.2005 which emerged only a few days anterior to the filing of the suit by the plaintiff, exemplified that tax for the financial years 2000-2001 to 2005-2006 was paid for the said house bearing Door No. 5/4-10(A). The learned counsel for the plaintiff would point out that the Door No. 5/5-27 came to be assigned to the suit structure only in the year 2008-2009 and it was not known how even as on 13.05.2005 itself, such door number came to be mentioned in Ex.B6. No doubt, there are certain mistakes in Ex.B6, but the fact remains that Ex.X1 was issued by the Special Grade Town Panchayat concerned and with reference to the same, the officials DWs 4 and 5 were examined and they expounded and explained the facts contained therein, as per which, it is clear that in the year 1998 itself, the property, which is now under the occupation of the defendants bore the Door No. 5/5-27 and in such case, there is no doubt that even in the year 1998, the defendants have been in possession and enjoyment of the said house bearing Door No.5/5-27, new Door No. 5/4-10(A). Based on certain deficiencies in the case of the defendants, the baby cannot be thrown away along with the bath water. The onus is on the plaintiff to prove that even as on the date of filing of the suit, he was in possession and enjoyment of the said hut, but he has not proved so. Therefore, it is felicitously and palpably clear from the records that even during the year 1998, the defendants were in possession of the said hut. The plaintiff, who seeks the equitable remedy of injunction, had approached the Court by suppressing these facts and sought the relief of injunction. He who seeks equity must do equity and he who comes to equity must come with clean hands. At this juncture, I recollect the maxim "Affirmanti non neganti incumbit probatio". The burden of proof lies upon him who asserts and not upon him who denies. The maxim "suppressio sen suggestio false" would operate as against the plaintiff. 12. The Plaintiff had suppressed the material facts and simply sought for an injunction in respect of the suit hut bearing Door No. 5/5-27. The trial court correctly appreciated the material evidence on record and rejected the prayer of the plaintiff for injunction in respect of that hut. But the first appellate Court virtually in the absence of evidence simply reversed the findings of the trial court, which warrants interference of this Court in this second appeal. Simply because the defendants, by way of overreaching and overstating themselves have pleaded as though there was no oral partition, that does not mean that they should be mulcted with the liability of they being dispossessed under the garb of granting an injunction relating to the said house bearing Door No.5/5-27. Simply because part of the plea of the plaintiff was accepted by the trial court, that it does not mean that the entire case of the defendants, even relating to the suit house, should be presumed to be incorrect and that too in the wake of the evidence of the public officials and the public records as referred to and discussed supra. Hence, I am of the considered view that the first appellate Court was wrong in reversing the decree and judgment of the trial court in respect of non-granting of injunction relating to the suit house. Hence, I am of the considered view that the first appellate Court was wrong in reversing the decree and judgment of the trial court in respect of non-granting of injunction relating to the suit house. It is needless to observe that the plaintiff, instead of seeking possession of the structure in dispute, has chosen to short cut the whole procedure and sought for permanent injunction, which was correctly rejected by the trial court. 13. Accordingly, the questions of law framed in this appeal are answered against the plaintiff. The decree and judgment passed by the trial court is restored in entirety and that the judgment and decree of the first appellate Court, in granting injunction in respect of the hut bearing Door No. 5/5-27 is set aside. The second appeal is allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed. 14. The learned counsel for the plaintiff would make an extemporary submission that since the plaintiff had prayed for a declaration to declare that he is the owner of the entire suit property, which he purchased from his brother Vaithialingam; that the trial court also decreed the suit except granting injunction in respect of the said hut bearing Door No.5/5-27, he is having a right to seek for possession of the land over which the structure, in which the defendants are in occupation, by instituting a fresh suit. 15. I would like to observe that it is open for the plaintiff to initiate fresh proceedings as per law and it is also open for the defendants to resist the same in the manner known to law.