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2015 DIGILAW 2229 (MAD)

Karuppasamy v. K. Ramasamy

2015-06-12

P.R.SHIVAKUMAR

body2015
JUDGMENT P.R. Shivakumar, J. 1. The defendants in the original suit are the appellants in the Second Appeal. The respondent herein filed O.S. No. 83 of 2008 on the file of the Trial Court, namely the Court of District Munsif, Sivakasi for declaration of title and injunction in respect of half share in the suit well, the electric service connection and electric pumpset fitted in the suit well together with the accessories. 2. The claim was made on the basis of his contention that the entire well was owned by one Samuel and he conveyed half share in the well in favour of one Seeni under a sale deed dated 3.7.1994 and that from the said Seeni, the respondent/Plaintiff purchased the half share belonging to Seeni together with the agricultural dry land comprised in S. No. 505 in the suit village, under the sale deed dated 30.6.1997, a certified copy of which is marked as Ex. A2. 3. However, the appellants/defendants resisted the claim contending that the entire well had been bequeathed by Samuel on his wife Valli by a registered "Will" dated 16.3.1998, certified copy of which is marked as Ex. A7; that on the death of Samuel on 13.6.1993, the "Will" came into effect and his wife Valli became the owner of the entire Well and that from the said Valli, the appellants/defendants had purchased the same under two sale deeds registered as document Nos. 3077 of 1993 and 1808 of 1995, on the file of Sub-Registrar, Sivakasi. 4. The Trial Judge, after trial, considered the evidence adduced on both sides and on appreciation of evidence, held that the respondent/Plaintiff substantiated his claim of title and also his entitlement to the relief of injunction as sought for in the plaint. Accordingly, the suit was decreed by a judgment and decree of the trial Court, dated 4.8.2011. After unsuccessfully prosecuting the appeal filed against the above said decree of the trial Court as A.S. No. 46 of 2011 on the file of the lower appellate Court, namely Sub-Court, Sivakasi, which came to be dismissed on 30.4.2012, the appellants/defendants have approached this Court with the present Second Appeal on various grounds set out in the memorandum of grounds of Second Appeal. 5. 5. The Second Appeal was admitted on 10.4.2015 identifying the following to be the substantial question of law involved in the Second Appeal: "Whether the judgment of the lower appellate Court is not in conformity with the requirements of Order 41 Rule31 of Code of Civil Procedure, 1908 to term it as not a judgment at all?" 6. The arguments advanced by Mr. G. Marimuthu, learned counsel for the appellants and by Mr. S. Raja Jeyachandra Paul, learned counsel for the respondent are heard. The Judgments of the Courts below and the other materials available on record sent for from the Courts below for reference in the Second Appeal are also perused and taken into consideration. 7. Besides reiterating his contention that necessary points for determination were not formulated by the lower appellate Court which would vitiate the judgment of the lower appellate Court, the learned counsel for the appellants contends that even the trial Court failed to frame necessary issues based on the pleadings made by the parties and that the said mistake initiated by the trial Court culminated in the judgment of the lower appellate Court with the same mistake and hence the judgments of both the Courts could be termed as not proper judgments in the eye of law. Of course, it is true that the learned Trial Judge did not frame the issues so as to elucidate the matter in dispute and it simply framed the following two issues: 1) Whether the plaintiff is entitled to the relief claimed? 2) To what other relief is the Plaintiff entitled? 8. Besides the shabby language used for framing the issues, as rightly pointed out by the learned counsel for the appellants, it reveals the failure on the part of the trial Court to frame necessary issues so as to give a clear picture of the matter in controversy. However, even if necessary issues were not framed by the trial Court, if it is shown that the parties fully conscious of the pleadings made by both the parties and the matters in controversy, led evidence in respect of such matters in controversy in full sufficient for rendering a decision on merits, the omission to frame such necessary issue can be treated as an irregularity and the same can be rectified by the appellate Court. Here is a case in which the appellate Court also failed to frame necessary points for declaration so as to cure the irregularity committed by the trial Court in its judgment in not framing the specific issues touching the matter in controversy. Of course, the contention of the learned counsel for the appellants that the judgment of the lower appellate Court is not in confirmity with the requirements envisaged under Order 41 Rule 31 of Civil Procedure Code and hence the same has to be construed as not a judgment at all cannot be simply rejected as untenable. However, this Court should not forget the fact that either before the trial Court or before the lower appellate Court, the appellants did not insist upon framing a particular issue or particular point for determination and on the other hand, assuming that the issues framed by the trial Court and the points for determination framed by the lower appellate Court would comprise in themselves the necessary issues regarding the proof of title, the entitlement of the respondent/Plaintiff to a declaration and injunction as prayed for, the appellants/defendants proceed with the conduct of the suit and the appeal inviting judgments on merits before the Courts below. 9. In fact, as rightly pointed out by the learned counsel for the respondent, even though specific issues/specific points for determination have not been judiciously framed, the Courts below did consider those points elaborately in the discussion. This Court has to consider the desirability of interference with the decree of the trial Court which stands confirmed by the decree of the appellate Court, taking into consideration that all the questions touching the issues which ought to have been framed were discussed by the Courts below based on the evidence fully adduced on both sides relating to such questions. The dispute between the parties is a narrow one. Both of them traced their title to the original owner by name Samuel. The respondent/Plaintiff claims half share in the suit well situate in S. No. 506 in the suit village. The vendor of the respondent by name Seeni was having an agricultural land abutting S. No. 506 and such agricultural land is comprised in S. No. 505. Only for the purpose of getting a source of irrigation for the said land, he purchased half share under the original of Ex. A1. The vendor of the respondent by name Seeni was having an agricultural land abutting S. No. 506 and such agricultural land is comprised in S. No. 505. Only for the purpose of getting a source of irrigation for the said land, he purchased half share under the original of Ex. A1. From the said Seeni, the respondent/Plaintiff purchased not only the half share in the well purchased by Seeni under Ex. A1, but also the agricultural land comprised in S. No. 505 and owned by Seeni. 10. It is quite obvious that the transfer of half share in the suit well was effected by a registered document by Samuel himself under the original of Ex. A1 long back on 3.7.1974. Though the execution of a will under the original of Ex. A7 on 16.3.1981 has not been disputed, it is quite obvious that the testator (Samuel) did not have any right to bequeath the property which had already been sold by him to Seeni. The "Will" will be effected only in respect of the half share retained by him after the sale made under the original of Ex. A1. The "Will" executed by a person in respect of a property over which he does not have title or dominion will not affect the right or title of the other person. If these aspects are taken into consideration, the contention of the appellants/defendants that they are entitled to the entire well cannot be countenanced and such a contention can even be stated to be absurd or ill-motivated. 11. Though the substantial question of law formulated in the Second Appeal can be answered in favour of the appellants/defendants, it shall be an exercise of futility to remit the matter back to the lower appellate Court or the trial Court for the purpose of pronouncing judgment after to framing necessary issues. When it is possible for this Court to give a final disposal in the matter in controversy, technical defects shall not prevent this Court from rendering a complete justice by disposing of the appeal on merits. When it is possible for this Court to give a final disposal in the matter in controversy, technical defects shall not prevent this Court from rendering a complete justice by disposing of the appeal on merits. When the counsel for the appellants as well as the respondent were appraised of this position, the learned counsel for the appellants submitted that the appellants would be satisfied if the decree of the trial Court as confirmed by the lower appellate Court is confirmed with a clarification that the right acquired by the respondent/Plaintiff shall be restricted to lifting water for the agricultural operation in the land comprised in S. No. 505 alone and the water should not be diverted for any other purpose or any other land. The learned counsel for the respondent also submits that the respondent does not have any objection for making such a clarification. 12. In view of the same, this Court comes to the conclusion that the operation made by the appellants in projecting the substantial question of law indicated supra is proved to be successful, but the patient, namely the Second Appeal cannot be saved. A damage saving measure has been aimed at by both the parties in expressing their consent for the confirmation of the decree of the trial Court with the clarification indicated supra. 13. In view of the same, the Second Appeal is dismissed without costs. The decree of the trial Court as confirmed by the lower appellate Court is confirmed with the clarification that the right acquired by the respondent/Plaintiff shall be restricted to lifting water for the agricultural operation in the land comprised in S. No. 505 alone and the water should not be diverted for any other purpose or any other land.