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2012 DIGILAW 4452 (MAD)

Masammal v. Kamalam

2012-10-29

G.RAJASURIA

body2012
Judgment Animadverting upon the judgment and decree dated 17.12.2004 passed by the learned Principal Subordinate Judge, Gobichettipalayam in A.S.No.27 of 2004 reversing the judgment and decree dated 07.04.2004 passed by the learned District Munsif, Sathiyamangalam in O.S.No.54 of 1997, this second appeal is focussed by the defendants 3, 4 and 5. 2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court. 3. Heard both sides. 4. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The first respondent/plaintiff filed the suit for partition by putting forth and setting forth her averments, which could tersely and briefly be set out thus: The property described in the schedule of the plaint originally belonged to her deceased father Veerappa Gounder, who got it by way of grant from the Government as revealed by Ex.A10. He died in the year 1963 leaving behind his two children, viz., his daughter-the plaintiff and his son viz., Kannappan, the husband of D3 and father of D4, D5 and D6. The plaintiff, being the sister of the said Kannappan reposed confidence in him, whereupon, Kannappan was managing the said property and every and now and then, he was sharing the income of the suit property with the plaintiff. While so, Kannappan died in the year 1983. Thereafter, during the year 1987, the descendants of Kannappan got the patta changed illegally in their favour in respect of the suit property; whereupon, the plaintiff agitated over it and the matter was fought up to the Commissioner of Land Administration, who ultimately, directed the parties to approach the Civil Court for getting their dispute adjudged. Whereupon, the cited suit was filed by the plaintiff for partition. b] Per contra, in a bid to torpedo and pulverise the averments/allegations in the plaint, the defendants 3 to 6 filed the written statement, which could pithily and precisely be set out thus: The plaint is fraught with falsity and mendacity. The Government granted the suit property in favour of Veerappa Gounder only in lieu of the Government having acquired the ancestral property, which was in the enjoyment of Veerappa Gounder. The Government granted the suit property in favour of Veerappa Gounder only in lieu of the Government having acquired the ancestral property, which was in the enjoyment of Veerappa Gounder. The plaintiff got married long before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act 1989 [Tamil Nadu Act 1 of 1990 w.e.f.25.03.1989] and as such, Kannappan alone became the absolute owner of the suit property and started enjoying it exclusively as his own property to the knowledge of the plaintiff, who did not even raise her little finger as against such absolute possession and enjoyment of it to the exclusion of the plaintiff. The plaintiff was ousted of her right over the suit property even if she could be considered as the one earlier possessing some right over the suit property. Veerappa Gounder died in the year 1963 and for almost three decades, she kept quite and thereafter she did choose to file the suit for partition. The income arising out of the suit property, was not shared by Kannappan with the plaintiff. As such, the defendants prayed for the dismissal of the suit. c] D2, the Collector filed the written statement on his behalf and on behalf of D1, the Government to the effect that there was dispute relating to patta transfer; whereupon the authority concerned referred the parties to seek remedy in the civil court. d] D7 and D8, who are the purchasers of a part of the suit property, remained exparte. e] The trial court framed the relevant issues. f] Up went the trial, during which, the plaintiff examined herself as PW1 and got marked Ex.A1 to A16. On the defendants' side D4-Asokan examined himself as DW1 along with D.Ws.2 and 3 and got marked Exs.B1 to B4. g) Ultimately, the trial court dismissed the suit. As against which, the plaintiff preferred appeal. Whereupon, the appellate court reversed the judgment and decree of the trial court and passed the preliminary decree as prayed for. h] Challenging and impugning the judgment and decree of the first appellate court, the defendants 3, 4 and 5 have preferred this second appeal on various grounds. 5. As against which, the plaintiff preferred appeal. Whereupon, the appellate court reversed the judgment and decree of the trial court and passed the preliminary decree as prayed for. h] Challenging and impugning the judgment and decree of the first appellate court, the defendants 3, 4 and 5 have preferred this second appeal on various grounds. 5. The learned counsel for the appellants/defendants placing reliance on the grounds of second appeal would pyramid his argument, which could succinctly and precisely be set out thus: A] The first appellate court, being the last court of facts, should have delved deep into the matter and analsysed threadbare the evidence, both oral and documentary and rendered its finding; however, violating every rule in the Code of Civil Procedure and more specifically the decision of the Hon'ble Apex Court reported in 2010(8) SCC 423 [H. Siddique (dead) by Lrs. vs. A. Ramalingam] rendered the judgment in first appeal. B] There is not even any proper framing of points for consideration. In fact, the first appellate court simply narrated the facts as well as the arguments on both sides and in its cryptic judgment reversed the reasoned finding of the trial court, warranting interference in second appeal. C] The first appellate court is expected to give its reason for reversing the judgment of the trial court on each and every point, but that was not done so. D] The trial court took into consideration the fact that the plaintiff was dormant and inert in asserting her right over the suit property. After three decades or so, she did choose to file the suit claiming right by putting forth and delineating the facts, which are nothing but a load of baloney and a pack of lies. E] There is nothing to indicate and exemplify, display and demonstrate that at any point of time, the deceased Kannappan, the brother of the plaintiff shared the income with the plaintiff. There is no reason much less valid reason found set out even in the plaint as to what made her keep quiet for almost three decades without asserting her alleged right. There is no reason much less valid reason found set out even in the plaint as to what made her keep quiet for almost three decades without asserting her alleged right. F] As such, the trial court taking into consideration the pro et contra, decided the case, based on factual analysis of evidence; but the first appellate court, which happened to be the last court of facts, did not discuss about the exhibits as well as the oral evidence as put forth through the witnesses on both sides. In such a case, the decision rendered by the first appellate court should necessarily be set aside. Accordingly, he would pray for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree of the trial court. 6. Per contra, the learned counsel for the first respondent/plaintiff would advance his argument, the pith and marrow of it would run thus: (i) The first appellate court by referring to voluminous decisions gave a finding on fact that the trial court misunderstood the concept adverse possession as well as ouster and simply threw the baby along with the bath water. (ii) When the judgment of the trial court was totally antithetical to the well established principles of law as found enunciated in the precedents of the Hon'ble Apex Court, the question of name sake rendering an elaborate judgment, was totally unwarranted. (iii) The trial court misunderstood the principle of ouster. It only took into account the lapse of time; but it did not take into account as in what manner Kannappan or his descendants asserted the right over the suit property quite antithetical to the interest of the plaintiff. (iv) No sooner the plaintiff came to know about the transfer of patta at the instance of the descendants of Kannappan, she swung into action and agitated as against it. Whereupon, the matter was fought upto the Commissioner of Land Administration, who correctly referred the parties to the Civil Court. Thereafter only, R1/plaintiff preferred the suit seeking partition. (v) Ex.A10 would display and demonstrate that the Government gave patta in favour of deceased Veerappa Gounder and nowhere it is found stated that the suit property was granted in favour of Veerappa Gounder only in lieu of the alleged ancestral property, which was in the hands of Veerappa Gounder, having been acquired by the Government. (v) Ex.A10 would display and demonstrate that the Government gave patta in favour of deceased Veerappa Gounder and nowhere it is found stated that the suit property was granted in favour of Veerappa Gounder only in lieu of the alleged ancestral property, which was in the hands of Veerappa Gounder, having been acquired by the Government. (vi) In fact the suit property cannot be termed as a quid pro quo for the ancestral property in the hands of Veerappa Gounder having been allegedly acquired by the Government. (vii) The plea of ouster was not considered by the trial court; whereupon, the first appellate court by referring to precedents correctly rejected it, warranting no interference in second appeal. (viii) There was no other point of controversy between the parties. The heir ship of the plaintiff and Kannappan to Veerappa Gounder was an admitted fact and in such a case, the first appellate court had no difficulty at all in applying Section 8 r/w Class I Schedule of the Hindu Succession Act. As such, the learned counsel for the first respondent/plaintiff would pray for the dismissal of the second appeal. 7. My learned predecessor at the time of entertaining the second appeal formulated the following substantial questions of law, which was verbatim the replica of the substantial questions of law suggested by the learned counsel for the appellants/defendants. (i) Whether the conclusion of the first appellate court is correct in law especially when it is not supported by any reasons to differ from the well considered findings of the trial court in view of the law declared by the Honourable Supreme Court in AIR 1999 SC 2216 ? (ii) Whether the failure on the part of the first appellate court to consider the oral and documentary evidence on record and its failure to frame point for determination under Order 41 Rule 33 CPC would vitiate the findings of the first appellate court as per the Division Bench judgment of this Honourable Court reported in 1996(2) LW 403 and 1990(2) MLJ 438? and (iii) Whether the courts below erred in law in not taking into consideration or giving a specific finding on the question whether the prayer for mesne profit is maintainable in law especially when the plaintiff herself pleaded joint possession and paid Court fees under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, instead of seeking appropriate relief on payment of Court fees under Section 37(1) of the Act? (extracted as such) 8. After hearing both sides, I thought it fit to re-formulate the following substantial questions of law to the knowledge of both sides. 1. Whether the trial court's rejecting of the plea of ouster in favour of the defendants 3 to 6 and as against the plaintiff, was in blithe disregard of the settled provisions of law and whether the first appellate court was not justified in simply placing reliance on the precedents and in reversing such finding of the trial court? 2. Whether the concurrent findings of both the courts below that the suit property was the property of Veerappa Gounder by virtue of the grant given in his favour by the Government? 3. Whether there is any perversity or illegality in the judgments and decrees of both the courts below? 9. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 10. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court would amply make the point clear relating to the scope of second appeal. (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi] A mere running of the eye over those decisions before getting down to the facts, would unambiguously and unequivocally, exemplify and demonstrate that the court, which is seized of the second appeal would be reluctant to re-appreciate the facts. However, it has been pellucidly and palpably highlighted by the Hon'ble Apex Court that when there is perversity or illegality in the findings of both the courts below, the High Court would be justified in re-appreciating the evidence and arrive at a just conclusion. 11. However, it has been pellucidly and palpably highlighted by the Hon'ble Apex Court that when there is perversity or illegality in the findings of both the courts below, the High Court would be justified in re-appreciating the evidence and arrive at a just conclusion. 11. A mere poring over the judgment rendered by the trial court would leave no doubt in the mind of this court that the trial court misdirected itself by misconstruing and misapplying the laws relating to adverse possession as well as ouster. Both the courts below referred to the decisions relating to adverse possession and ouster. However, I would like to refer to the following decisions of the Hon'ble Apex Court, which emerged long after the disposal of the matter by both the courts below. (i) (2007) 6 SCC 59 (P.T. Munichikkanna Reddy and others vs. Revamma and others). (ii) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] The aforesaid precedents would highlight and spotlight the fact that adverse possession and the plea of ouster cannot be simply be upheld based on sketchy and patchy evidence. 12. I recollect and call up the maxim – necvi, nec clam and nec precario [A peaceful, open and continuous possession] There should be unambiguous and unequivocal evidence conveying and portraying, displaying and demonstrating that one of the co-owners started enjoying the suit property to the knowledge of the other co-owner, as absolute owner of it. Mere enjoyment of it even for any number of years would not enure to the benefit of such co-sharer unless corpus possessionis andanimus possidendi on the part of the person pleading ouster, is stood exemplified by virtue of clinching documentary evidence. 13. No doubt, Veerappa Gounder the original owner of the suit property died during the year 1963; whereas the suit was filed in the year 1996, almost 33 years after the death of the said original owner. Kannappan, the son of Veerappa Gounder died only in the year 1983; but till then there is no iota or shred, modicum or jot of evidence to display and demonstrate that Kannappan got the patta changed in his name or he alienated any part of the suit property or mortgaged or encumbered the suit property in any manner to the knowledge of the plaintiff. During the year 1983, he died leaving behind his legal heirs, viz., D3 to D6, viz., his wife and children and they alone got the patta changed unilaterally in their name during the year 1987. However, during the year 1988 itself, the plaintiff objected to it and the matter was fought for a pretty long time and it was the Commissioner of Land Administration who referred the parties to the Civil court for getting their dispute adjudged. 14. It is therefore clear that there is no smudgeon or molecular extent of evidence to convey and point up that to the knowledge of the plaintiff, the said Kannappan or his legal heirs enjoyed the suit property as absolute owners so as to attract the principle of ouster. The theory of ouster should be understood in proper perspective. Merely because, the plaintiff, being a lady, who is expected to live in her husband's house after marriage, did not actually in physical possession of the suit property, there is no presumption that she got her connection with the suit property snapped once and for all. In fact, the pith and marrow and the gist and kernel of the precedents of the Hon'ble Apex Court cited supra would be to the effect that such people, who are not in enjoyment should not be deprived of their legitimate aliquot share in the joint property. 15. As correctly highlighted by the learned counsel for R1/plaintiff there is nothing to indicate that Kannappan or his descendants ever encumbered the property or alienated a part of the suit property in order to show up that they exercised their exclusive and absolute right over the suit property to the exclusion of the plaintiff. In such a case, possession by one co-owner would tantamount to possession by another co-owner also and as a sequela, the question of court fee issue also does not arise. The plaintiff cannot be called upon to pay ad valorem court fee under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act and the plaintiff was justified in paying the court fee under Section 37(2) of the Act. 16. Once the plea of adverse possession is found to be a misconceived and untenable one, what remains in this case is nothing to grant the prayer of the plaintiff for partition. 17. 16. Once the plea of adverse possession is found to be a misconceived and untenable one, what remains in this case is nothing to grant the prayer of the plaintiff for partition. 17. Indubitably and indisputably, the relation ship between the plaintiff and the contesting defendants is an admitted one. Accordingly, the first appellate court correctly understanding the real issue involved in this matter decided the lis. 18. A thumb nail sketch of the written statement filed by the Collector in no way would point out or map out that the suit property was given in favour of Veerappa Gounder only as a quid pro quo for having acquired the alleged ancestral property, which was under the enjoyment of Veerappa Gounder . The trial court as well as the first appellate court gave a categorical and concurrent finding of facts to the effect that the suit property is only the self-acquired property of Veerappa Gounder and not the ancestral property in the hands of Veerappa Gounder. 19. Scarcely, there is anything on record to buttress and fortify the plea of the contesting defendants that the suit property should be construed as the ancestral property. 20. The learned counsel for the contesting defendants placing reliance on the decision of the Hon'ble Apex Court reported in 2010(8) SCC 423 [H. Siddique (dead) by Lrs. vs. A. Ramalingam] would vehemently argue that non-compliance with Order 41 Rule 31 of the Code of Civil Procedure is fatal to the judgment of the first appellate court. Such an argument fails to carry conviction with this court as I cannot countenance and uphold it, in the peculiar facts and circumstances of this case. No doubt, punctiliousness and methodicalness in disposing of the first appeal as per the Code of Civil Procedure should be adhered to. But, namke vaste compliance with the procedural laws in all cases is not warranted. The court has to see the reality. It is not as though the first appellate court could not see the wood for trees. Only one main issue was involved in this case and that was relating to the plea of ouster. The trial court itself held that the suit property was not an ancestral property and as a sequela, it has to be construed as the self-acquired property of Veerappa Gounder by virtue of Ex.A10 and the appellate court also confirmed it. Only one main issue was involved in this case and that was relating to the plea of ouster. The trial court itself held that the suit property was not an ancestral property and as a sequela, it has to be construed as the self-acquired property of Veerappa Gounder by virtue of Ex.A10 and the appellate court also confirmed it. The relation ship among the parties also is an admitted one. 21. Relating to the finding on ouster, the trial court misapplied the law, which I highlighted supra and the first appellate court even though not in various sentences elaborately dealt with the issue, yet it correctly decided the point that the trial court was wrong in understanding the purport of the concept ouster. Wherefore, bare noncompliance with certain procedural aspects in disposing of the first appeal would not render the judgment and the decree as null and void and undue importance need not be given to the technicalities of law, which are only hand-maids of justice. 22. Here, the plaintiff being the daughter of Veerappa Gounder was already made to run from pillar to post to get her aliquot share in the property of her father and because of some technical defects in the first appellate court's judgment, if it is reversed, then that would amount to travesty of justice and it would not in any way augment the cause of justice. 23. I recollect and call up the maxim – justitianon est neganda, non differenda – Justice is not to be denied or delayed. If for the purpose of formal compliance with Order 41 Rule 31 of the Code of Civil Procedure the judgment and decree of the first appellate court is reversed not for anything but for the same court to pass a judgment granting the same relief in favour of the plaintiff, then that would not in any way help the cause of timely justice. 24. I also recollect the following maxim –justitia nemini neganda est – [Justice is to be denied to no one]. As such, in view of the aforesaid factual and legal position, I am of the view that no interference with the judgment and decree of the first appellate court is required because it has rendered its judgment in accordance with the substantive laws governing partition. 25. As such, in view of the aforesaid factual and legal position, I am of the view that no interference with the judgment and decree of the first appellate court is required because it has rendered its judgment in accordance with the substantive laws governing partition. 25. Accordingly, the substantial questions of law are decided to the following effect: The substantial question of law No.1 is decided to the effect that the trial court's finding relating to the plea of ouster in favour of the defendants 3 to 6 and as against the plaintiff was in blithe disregard of the settled provisions of law and the first appellate court was justified in placing reliance on the precedents in reversing such finding of the trial court. The substantial question of law No.2 is decided to the effect that the concurrent findings of both the courts below that the suit property is the property of Veerappa Gounder by virtue of the grant given in his favour by the Government, is correct. The substantial question of law No.3 is decided to the effect that there is no perversity or illegality in the judgment and decree of the first appellate court in reversing the judgment and decree of the trial court. 26. In the result, this second appeal is dismissed confirming the judgment and decree of the first appellate court. However, there shall be no order as to costs.