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2013 DIGILAW 89 (MAD)

Pitchaiammal v. David Pratab Singh

2013-01-04

G.RAJASURIA

body2013
JUDGMENT 1. This Second Appeal is focussed as against the judgment and decree dated 22.12.2006 passed in A.S.No.236 of 2005 by the learned Principal Subordinate Judge, Madurai, in confirming the judgment and decree dated 09.12.2004 passed in O.S.No.113 of 2001 by the learned District Munsif, Thirumangalam. 2. The parties are referred to hereunder according to their litigative status before the trial Court. 3. A 'Resume' of facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (i) The first respondent herein - David Pratab Singh, filed the suit seeking the following reliefs: "(a) Declaring that the exparte decree obtained by the defendants 1 to 11 in O.S.No.502 of 1991 dated 23-12-93 on the file of the District Munsif Court of Thirumangalam against the defendant No.12 is a nullity and not binding on the rights of the plaintiff as the absolute owner of the suit property and consequently; (b) Granting permanent injunction restraining the defendants 1 to 11, their men, agents etc. from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property;" (Extracted as such) Whereupon the 9th defendant – Pooranan filed the written statement which was adopted by the other defendants except the 12th defendant. The issues were framed. (ii) Up went the trial, during which, on the side of the plaintiff, P.W.1 was examined and Exs.A.1 to A.12 were marked and on the side of the defendants, D.W.1 was examined and Exs.B.1 to B.7 were marked. Ultimately, the trial Court decreed the suit, as against which the contesting defendants preferred the appeal for nothing but to be dismissed, confirming the judgment and decree passed by the trial Court. 4. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been focussed on various grounds. 5. At the time of admitting this second appeal, my learned Predecessor framed the following substantial questions of law: "(1) Whether the judgments of the Courts below are perverse on account of misconstruction of documents exhibited on either side? (2) Whether the judgment and decree of the Courts below are erroneous on account of absence of supporting materials to arrive at the findings?" (Extracted as such) 6. Heard both sides. Substantial Questions of Law (1) and (2): 7. (2) Whether the judgment and decree of the Courts below are erroneous on account of absence of supporting materials to arrive at the findings?" (Extracted as such) 6. Heard both sides. Substantial Questions of Law (1) and (2): 7. The learned Counsel for the appellants in this second appeal, placing reliance on the grounds of second appeal, would pyramid his arguments, thus: The plaintiff in the present proceeding, is none but the purchaser of the suit property pending earlier suit in O.S.No.502 of 1991 by the appellants herein on the file of the District Munsif, Thirumangalam, filed as against the 12th defendant - Muruganandam herein. While so, the 12th defendant remained exparte and an exparte decree was passed. However, pending litigation, the plaintiff -David Pratab Singh purchased the suit property from the defendant therein and on the strength of it, he had chosen to file O.S.No.113 of 2001. As such, his purchase is hit by lispendens. As per the decisions of this Court as well as the Honourable Apex Court, apendente lite purchaser cannot have any independent right over and above the right of his vendor. The trial Court, in this proceeding, miserably failed to take note of the fact that the plaintiff had not shown any clinching evidence that his vendor Muruganandam had acquired a valid title over the suit property. However, the documents now filed with the M.P(MD)No.1 of 2011, under Order 41 Rule 27 of the Code of Civil Procedure, would fittingly and clinchingly establish as to how the appellants in this second appeal are entitled to the suit property and without considering these facts, the trial Court simply decreed the suit. The trial Court as well as the appellate Court mainly proceeded on the footing that the earlier exparte judgment in O.S.No.502 of 1991 was not supported by reasons and thereupon, they simply believed the unilateral version of the plaintiff even though his case was not buttressed and fortified by any clinching evidence in this regard. Due opportunity has to be given to the appellants in this second appeal to produce the additional evidence and that would torpedo and pulversie the contentions of the plaintiff in this case. 8. Due opportunity has to be given to the appellants in this second appeal to produce the additional evidence and that would torpedo and pulversie the contentions of the plaintiff in this case. 8. The learned Counsel for the appellants would also point out that the original extent of 83 cents of land in that vicinity belonged to Mariappan Ambalam and after his death, his son Chinna Karuppan Ambalam sold only an extent of 28 cents on the eastern portion in favour of Kandasamy Ambalam. However, the said Kandasamy Ambalam instead of transferring only the said 28 cents, transferred the entire larger extent of 83 cents in favour of Sakthi Eswari, who in turn, transferred the same in favour of the 12th defendant who pending previous litigation, sold it in favour of the plaintiff. As such, both the Courts below failed to take note of the said fact and simply accepted the case of the plaintiff and decreed the suit, warranting interference in second appeal. 9. Per contra, the learned Counsel for the first respondent/ plaintiff would advance his arguments, challenging and impugning the contentions as put forth and set forth on the side of the appellants, thus: No doubt, the plea of lispendens was taken by the appellants herein before the trial Court which appropriately and appositely, discarded it on the main ground that the earlier judgment and decree was obtained by them without producing any shred or shard, jot or pint, iota or miniscule extent of evidence to buttress and fortify their title to the suit property. As such, the trial Court proceeded to hear both sides on merits and rendered a reasoned judgment which was affirmed by the first appellate Court, warranting no interference in this second appeal. Inasmuch as the defendants themselves have not produced any clinching documents in order to establish and prove that they were entitled to any extent in the suit property, there was no necessity for the plaintiff to produce additional documents on his side. 10. Inasmuch as the defendants themselves have not produced any clinching documents in order to establish and prove that they were entitled to any extent in the suit property, there was no necessity for the plaintiff to produce additional documents on his side. 10. The learned Counsel for the first respondent/plaintiff would also submit extempore that in fact, Kandasamy Ambalam not only purchased the said 28 cents on the eastern portion of 83 cents, but subsequently, he also purchased the remaining extent out of the larger extent of 83 cents, but that document concerned was not filed before the Court and the plaintiff is ready to file that also and substantiate as to how the plaintiff is entitled to the entire extent of the suit property. 11. In view of the rival claims, what I could glean and discern is that absolutely, the trial Court as well as the first appellate Court were not justified in simply disposing of the matter without probing and delving deep into the facts concerned. 12. The appellants herein filed the following documents [M.P(MD)No.1 of 2011]: 2. Patta in Patta No. 24, S. Puliankulam, Thirumangalam Taluk issued in the name of Mariappan Ambalam. 3. Registered Lease Deed in Document No.1805 of 1932 with endorsement made by Kandasamy Ambalam. 4. Joint Patta in Patta No.86, S.Puliankulam, Thirumangalam Taluk issued in the name of the Appellants 7 and 8. 5. Kist receipt dated 26.04.2010 in the name of the 7th Appellant. 6. Kist receipt dated 17.05.2011 in the name of the 7th Appellant." "1. Registered Sale Deed in Document No.629 of 1921 executed by Periakaruppapillai in favour of Mariappan Ambalam. Whichare, in my opinion, necessary for adjudication. For one reason or other, the appellants failed to produce the same before the fora below and simply because of that, they should not be denied of their opportunity to establish their case. 13. In the meanwhile, the learned Counsel for the first respondent/plaintiff has also put forth a case which is actually new so far this proceeding is concerned, as he would submit that the said Kandasamy Ambalam purchased not only 28 cents of land, but also the remaining extent out of the 83 cents of land by a registered document and the plaintiff is ready to produce the same. In such a case, in second appeal, this Court cannot go on entertaining additional evidence and thereby convert this Court into a trial Court. Over and above that, the findings on facts should be based on documents and if any decision is rendered, the affected party should have an opportunity to file an appeal. This Court being the High Court, if entertains fresh facts/new documents, either of the parties would lose an opportunity to prefer an appeal as against it. In such a case, I am of the considered view that the matter should necessarily be remitted back to the first appellate Court so as to enable both sides to adduce fresh documentary and oral evidence in support of their respective pleas concerning the immovable property. 14. Regarding lispendens is concerned, the principle as put forth by the learned Counsel for the appellants is acceptable in view of the decision of this Court as well as the Honourable Apex Court in T.G.AshokKumar v. Govindammal reported in (2011) 2 MLJ 317 (SC). Certain excerpts from the decision of the Honourable Apex Court, would run thus: "10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially. 11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B, C, D, E, F, G, H, I, B in the Commissioner's sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B, C, D, E, F, G, H, I, B in the Commissioner's sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property namely the portion shown by the letters A, B, I, H, A in the Commissioner's sketch (Exhibit C-5) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction. 12. We are therefore of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore the courts below ought to have decreed the appellant's suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit." But, in the meantime, I would like to refer to one other decision of the Honourable Apex Court in C.N. Ramappa Gowda vs. C.C. Chandregowda reported in (2012) 5 Supreme Court Cases 265. Certain excerpts from it, would run thus: "25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effectof non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint. 26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial. 27. However, if the court is clearly of the view that the plaintiff’s case even without any evidence is prima facie unimpeachable and the defendant’s approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit. 28. When we examined the instant matter on the anvil of what has been stated above, we have noticed that the trial court has decreed the suit without assigning any reason how the plaintiff is entitled for half-share in the property. 28. When we examined the instant matter on the anvil of what has been stated above, we have noticed that the trial court has decreed the suit without assigning any reason how the plaintiff is entitled for half-share in the property. The same is absolutely cryptic in nature wherein the trial court has not critically examined as to how the affidavit filed by the plaintiff in support of his plea of jointness of the family was proved on relying upon Exts. P-1 to P-10 without even discussing the nature of the document indicating that the suit property was a joint property. Exts. P-1 to P-10 are the preliminary records viz. atlas, tipni book, R.R. pakka book, settlement akarband, sale deeds, etc. The trial court although relied upon these documents, it has not elaborated critically as to why these documents have been believed without indicating as to how it proves the plea that the property always remained joint in nature and had never been partitioned between the parties. Even if the trial court relied upon these documents to infer that the property was joint in nature, it failed to record any reason as to whether the property was never partitioned among the coparceners. 29. It is a well-acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff’s case could be held to have been proved. The trial court, therefore, while accepting the plea of the appellant-plaintiff ought to have recorded reasons even if it were based on ex parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour." 15. The trial court, therefore, while accepting the plea of the appellant-plaintiff ought to have recorded reasons even if it were based on ex parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour." 15. As such, a cumulative reading of the aforesaid precedent would demonstrate and display that an exparte judgment should be a reasoned one, but in this case, unfortunately when the Court passed the exparte judgment in O.S.No.502 of 1991, failed to adhere to the procedure in rendering a reasoned judgment and that alone resulted in subsequent litigation also, as otherwise if there is a reasoned judgment in O.S.No.502 of 1991, certainly that would be valid and the doctrine of lispendens would be very much operative as against the plaintiff who filed the subsequent suit. 16. In view of my discussion supra, both the substantial questions of law are answered as under: (i) The Substantial Question of Law (1) is answered to the effect that the judgments of the Courts below are perverse on account of misconstruction of documents exhibited on either side. (ii) The Substantial Question of Law (2) is answered to the effect that the judgment and decree of the Courts below are erroneous on account of absence of supporting materials to arrive at the findings. 17. Wherefore, I am of the view that the matter should be remitted back to the first appellate Court with the following direction: The first appellate Court shall allow both sides to adduce oral and documentary evidence additionally and after hearing both sides, a reasoned judgment shall be delivered within a period of four months from the date of receipt of a copy of this judgment if there is no legal impediment for such disposal. Both the parties shall appear before the first appellate Court on 04.02.2013 without fail and co-operate with the first appellate Court for speedy disposal of the matter as per law. 18. On balance, this second appeal is allowed setting aside the judgment and decree of the first appellate Court, as above. Consequently, the connected Miscellaneous Petitions are closed. No costs.