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2012 DIGILAW 102 (MAD)

S. Vasantha v. Arumugam

2012-01-05

T.RAJA

body2012
Judgment :- 1. The respondent herein filed a suit as plaintiff in O.S. No.532 of 1990 on the file of the District Munsif Court at Ranipet, seeking a prayer for partition of 'B' schedule property, which is a lane 'Nara Sandhu', and for a permanent injunction, restraining the defendant from interfering with the right of the plaintiff in letting out the drainage water through 'B' Schedule Nara Lane. The averments made in the plaint, in brief, are recapitulated below for better appreciation. The property at Door No.118 situated in Beerjathpura Street, Arcot, belongs to the plaintiff, while the property located in the northern side of the same at Door No.117 belongs to the defendant. A lane “Nara Sandhu” at the western side of Door No.117 is meant for common use by both the plaintiff as well as the defendant. The above properties (at Door Nos.117 and 118) and also other properties were originally owned by one Appasamy Mudaliar, who, by a registered partition deed, dated 14.03.1922, partitioned the properties amongst his sons – Natesa Mudaliar, Rethina Mudaliar, Shanmuga Mudaliar and Thulasinga Mudaliar. In the said partition, the properties at Door Nos.117 and 118 along with the Nara Lane under 'B' schedule fell to the share of Natesa Mudaliar while the property at Door No.119 was was given to Rethina Mudaliar, the father of the plaintiff. Natesa Mudaliar, who became the absolute owner of the properties at Door Nos.117 and 118, in turn, by a registered partition deed, dated 04.12.1965, partitioned the properties between his son Sadagopa Mudaliar, the defendant in the suit, by allotting him the property at Door No.117 with half share in the 'B' Schedule lane, and Door No.118 with remaining half share in the 'B' schedule lane was given to the daughter-Gajalakshmi Ammal. The plaintiff, who is the son of Rethina Mudaliar, inherited the 'A' Schedule property at Door No.119 from his father and he also purchased the property of Gajalakshmi Ammal at Door No.118 along with her share in the Nara Lane - 'B' Schedule vide sale deed dated 04.07.1968. The plaintiff, who constructed a house over the 'A' Schedule land, is letting out the drainage water through the Nara Lane under the 'B' Schedule over which he has equal ownership and right as that of the defendant. The plaintiff, who constructed a house over the 'A' Schedule land, is letting out the drainage water through the Nara Lane under the 'B' Schedule over which he has equal ownership and right as that of the defendant. Since the defendant is preventing the plaintiff from using the Nara Lane and denying his ownership over the same, the plaintiff filed the suit for partition of the Nara Lane between himself and the defendant through a Commissioner Appointed by the Court and also for a permanent injunction to prevent the defendant from interfering with the use of the Nara Lane under the 'B' Schedule by the plaintiff. 2. The defendant, by filing a written statement, contended that the plaintiff has no right whatsoever over the 'B' Schedule lane and that the said lane is exclusively and entirely owned by the defendant and further, the plaintiff never enjoyed the same at any point of time nor there was any drainage line existed as alleged by the plaintiff in his plaint; thus, the suit with baseless allegation is not maintainable and it is liable to be dismissed in limini. 3. The learned District Munsif, Ranipet, after considering the case of both sides and examining the oral and documentary evidence adduced, ultimately decreed the suit vide Judgment dated 30.03.1993. The unsuccessful defendant went on appeal by preferring A.S. No.13 of 2002 before the learned Additional District and Sessions Judge, FTC-II, Ranipet. On the demise of the appellant/defendant, the Legal Representatives/present appellants were brought on record and, after consideration of the matter, the lower appellate court, by its judgment dated 29.07.2005, affirmed the verdict of the trial court. Aggrieved by the concurrent judgments of the courts below, the legal heirs of the deceased defendant have filed the present Second Appeal. 4. At the time of admission, the following substantial questions of law were framed for consideration:- a) Whether the courts below are right in granting the decree for partition when even according to the plaintiff, partition has already been effected? b) Whether the learned District Judge is correct in passing judgment without any reason? c) Whether the Judgment of the learned District Judge without complying with the mandatory provisions under Order 41 Rule 31 is sustainable? 5. b) Whether the learned District Judge is correct in passing judgment without any reason? c) Whether the Judgment of the learned District Judge without complying with the mandatory provisions under Order 41 Rule 31 is sustainable? 5. Now, with reference to the above questions of law, this Court has to consider as to whether the Judgments of the courts below suffer from any patent error or illegality, warranting interference. 6. Learned counsel for the appellants argued on the sole ground that the lower appellate court did not record elaborate reasonings to confirm the judgment of the trial court, which also, did not proceed in a proper perspective as its discussion revolved only around Exs.A1 and A2 to decree the suit and it completely ignored to consider the evidence adduced by the defendant to substantiate that the lane in question under 'B' schedule entirely and exclusively belongs to the defendant alone. According to her, the Judgment of the lower appellate court seems to be a non-speaking order in confirming the trial court's verdict which was passed without proper reasoning and any documentary evidence; thus, the same call for interference at the hands of this Court. 7. I have perused the judgments of the courts below having regard to the argument advanced by the learned counsel for the appellant. As regards the first substantial question of law, it must be pointed out that, admittedly, the Nara Lane under 'B' schedule measuring north-south 63' and east-west 6' has been used by both parties as pathway and also for the purpose of letting out drainage water. As against the plea of the defendant denying the availability of a common lane for use, from the evidence of the defendant himself and the documents filed, the trial court factually found about the existence of the Nara Lane while recording the prevaricating statements made by the defendant during the course of examination. In that regard, the trial Court specifically pointed out the attitude of the defendant in feigning ignorance about the very partition in which a share viz., property at Door No.118, was allotted to her sister Gajalakshmi Ammal viz., the vendor of the plaintiff, however, he would state that he got his share viz., property at Door No.117, in the very same family partition to which, his sister was also admittedly a party. That is why, Ex.A.1 partition deed, dated 04.12.1965, from which the defendant and his sister Gajalakshmi got their respective properties, vis-à-vis the prevaricating account of the defendant, weighed much with the trial court in rendering the finding on facts as against the defendant. Further, by placing reliance on Ex.A2, sale deed, dated 04.07.1968, executed by Gajalakshmi Ammal in favour of the plaintiff/respondent herein, the trial court found that, in the said document, there is a specific mentioning about the extent to which the owner of Door No.118 would have entitlement over the 'B' Schedule/Nara Lane. The trial court further found that, from the partition, both the defendant and his sister inherited the above referred properties with equal share over the Nara Lane and in that perspective, after one of the parties viz., Gajalakshmi Ammal effected sale, the purchaser/plaintiff derived the very same rights in all aspects including metes and bounds as enjoyed by the vendor Gajalakshmi Ammal. Also, the trial Court recorded a specific factual finding that both sides were all along equally using the Nara Lane both as passage as well as for the purpose of letting out drainage water. Therefore, rightly, the trial court passed the judgment, granting the prayer sought for by the plaintiff and the lower appellate court also, by finding that there is no scope for interference at all, precisely held so at para No.6 of its judgment and declined to accede to the case of the appellants. 8. Coming to the other questions of law that the lower appellate court did not record elaborate reasons and it did not comply with the mandatory provisions under Order 41 Rule 31 CPC, which sets out that the first Appellate Court being the final Court of facts, it is only proper that its judgment must not be wanting in proper details, it is pertinent to point out that here, the lower appellate court, after analysing the factual findings recorded by the trial court based on evidence, concluded that such findings do not not call for interference. In a case of concurrent finding, it is not within the jurisdiction of the High Court to investigate the grounds on which the findings were arrived at by the “ultimate court of fact” viz., the lower appellate court. In a case of concurrent finding, it is not within the jurisdiction of the High Court to investigate the grounds on which the findings were arrived at by the “ultimate court of fact” viz., the lower appellate court. Further, as already pointed out, the trial court proceeded to deeply expound into the factual aspects in the light of the oral and documentary evidence adduced before it. That is why, in the given case, the lower appellate court did not once again broadly delve into the entire spectrum and it confined itself with a precise finding at para No.6 of its Judgment to sustain the verdict of the trial court. In such a circumstance, as repeatedly held by this Court as well as the Apex Court, the findings of fact concurrently recorded by the trial court as also by the lower appellate court cannot be legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. Since the factual findings of the trial court, based on a deliberative discussion on the points in the light of the evidence adduced by both sides, came to be affirmed by the last court of fact/lower appellate court, there is no point at all in saying that the mandatory requirement under Order-41 Rule-31 CPC was not complied with. Moreover, it must also be highlighted here that if, after examining the materials on record and analysing the judgment of the lower Appellate Court, it is seen that the lower Appellate Court had considered the core and relevant aspects for confirming the decision of the trial Court, it is implicit that the said court has indeed framed a point for consideration. May be the framing is not satisfactory. Inasmuch as the lower Appellate Court has taken into consideration the entire pleadings and arrived a right conclusion, mere allegation that proper and adequate points for consideration have not been framed will not vitiate its judgment. 9. From the above discussion, it follows that no question of law much less substantial question of law arises for consideration in this appeal. Consequently, the Second Appeal is dismissed as devoid of any merit. No costs.