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2015 DIGILAW 3302 (MAD)

Karuppiah Ambalam v. Rukmani

2015-10-08

M.DURAISWAMY

body2015
JUDGMENT : The above Second Appeal arises against the Judgment and Decree passed in A.S.No.37 of 2008 on the file of the Sub Court, Pudukkottai, reversing the Judgment and Decree passed in O.S.No.185 of 1997 on the file of the District Munsif Court, Aranthangi. 2. The appellants are the plaintiffs and the respondents were the defendants in the suit. The plaintiffs filed the suit in O.S.No.185 of 1997 to declare that the suit property is part of the Tank “Vattakulam” in Survey No.204/1 for irrigation source and consequently restrain the defendants 2 and 3 from cultivating the suit property or to put it for any other purpose so as to infringe the plaintiffs' right to use the irrigation source. The defendants filed their written statement and contested the suit. 3. Before the trial Court on the side of the plaintiffs, P.W.1 was examined and 15 documents Exs.A.1 to A.15 were marked. On the side of the defendants, two witnesses were examined and six documents Exs.B.1 to B.6 were marked and the Advocate Commissioner's Report and Plan were marked as Exs.C.1 and C.2. 4. After trial, the trial Court decreed the suit. Aggrieved over the Judgment and Decree of the trial Court, the defendants 2 and 3 preferred an appeal in A.S.No.37 of 2008 on the file of the Sub Court, Pudukkottai and the lower Appellate Court reversed the Judgment and Decree of the trial Court and allowed the appeal. Aggrieved over the Judgment and Decree of the lower Appellate Court, the plaintiffs have filed the above Second Appeal. 5. The appellants have raised the following substantial questions of law in the Second Appeal:- “1) Whether the grant of patta for the suit property classified as tank and irrigation source is sustainable in view of the vesting contemplated under Section 3(b) and the Prohibition of grant of patta under Section 14A of the Estates Abolition Act (Act 26/1948)? 2) Whether the lower Appellate Court's observations and findings are contrary to the settled principles of law and position of law laid down in the various findings of the Honourable High court as well as Honourable Apex Court regarding the grant of patta in respect of Tanks (whether private or irrigation source), tank buds ooranies? 2) Whether the lower Appellate Court's observations and findings are contrary to the settled principles of law and position of law laid down in the various findings of the Honourable High court as well as Honourable Apex Court regarding the grant of patta in respect of Tanks (whether private or irrigation source), tank buds ooranies? 3) Whether the failure of the lower Appellate Court to consider the pleadings the evidence both oral and documentary on both sides with reference to the position of law without points for consideration has rendered its Judgment incorrect and unsustainable? 4) Whether the failure on the part of the lower Appellate Court to consider position of law arising on/applicable to the facts of the case and to frame the points to be considered and decided in the appeal renders it incorrect and unsustainable?” 6. Mr.K.Subramanian, learned counsel appearing for the appellants mainly contended that the lower Appellate Court had reversed the Judgment and Decree of the trial Court without giving any finding. 7. Mr.S.S.Sundar, learned counsel appearing for the respondents 1 and 2 submitted that the trial Court had decreed the suit without taking into consideration the oral and documentary evidences let in by the respondents 1 and 2 and that the decree passed by the trial Court is erroneous. The learned counsel further submitted that since the trial Court has not taken into consideration the evidences let in by the defendants 1 and 2, the lower Appellate Court has rightly reversed the Judgment and Decree of the trial Court. 8. On a perusal of the Judgment of the lower Appellate Court, it could be seen that from paragraph Nos.1 to 9, the lower Appellate Court has narrated the averments stated in the pleadings. In paragraph Nos.10 & 11, the lower Appellate Court had accepted the case of the defendants and reversed the Judgment and Decree of the trial Court. It would be appropriate to extract paragraph Nos.10 and 11 of the Judgment of the lower Appellate Court, which reads as follows:- XXX XXX XXX On a reading of the findings in paragraph Nos.10 and 11, it is clear that the lower Appellate Court had reversed the findings given by the trial Court without assigning any reason. 9. It would be appropriate to extract paragraph Nos.10 and 11 of the Judgment of the lower Appellate Court, which reads as follows:- XXX XXX XXX On a reading of the findings in paragraph Nos.10 and 11, it is clear that the lower Appellate Court had reversed the findings given by the trial Court without assigning any reason. 9. This Court as well as the Honourable Apex Court had repeatedly held that the lower Appellate Court while reversing the Judgment and Decree of the trial Court must give reasons for reversing the findings of the trial Court. 10. In the Judgment of the lower Appellate Court, the lower Appellate Court has not taken into consideration the oral and documentary evidences let in by both sides and without any reason had reversed the Judgment and Decree of the trial Court. The lower Appellate Court being the final Court of facts should have considered the oral and documentary evidences and given findings for reversing the Judgment and Decree of the trial Court. In these circumstances, without going into the merits of the case, I am of the considered view that the Judgment and Decree passed by the lower Appellate Court are liable to be set aside and the matter should be remanded back to the lower Appellate Court for fresh consideration. 11. Taking into consideration the submission made by the learned counsel for the respondents 1 and 2 that the trial Court had not taken into consideration the oral and documentary evidences let in by the defendants and erroneously decreed the suit, I make it clear that by setting aside the Judgment and Decree of the lower Appellate Court and remanding the matter back to the Sub Court, Pudukkottai for fresh consideration should not be taken that this Court had approved the Judgment and Decree passed by the trial Court. 12. The appellants filed an application in M.P(MD)No.1 of 2012 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 to permit them to produce additional document, namely, the file relating to the statutory statement proceedings conducted by the settlement authorities under Tamil Nadu Estates Abolition (and Conversion into Ryotwari) Act – Act 26/1946 relating to Survey No.204/1 and 213/1 in R.P.No.1/26/46/Aranthangi/91-pages 1 to 103. 13. 13. In the affidavit filed in support of the petition, the appellants have stated that the document was marked as Ex.A.22 in the other suit in O.S.No.62 of 1992, however, the same was omitted to be marked in O.S.No.185 of 1997. They have also stated that they obtained for the certified copy of the document and are producing the settlement proceedings as additional evidence in M.P(MD)No.1 of 2012 in S.A(MD)No.119 of 2010. 14.The learned counsel appearing for the appellants submitted that the documents sought to be marked, namely, the settlement proceedings, is incomplete and that the last few pages are not available. However, this document was already marked in the other suit in O.S.No.62 of 1992 by the respondents, who are the plaintiffs in that suit. 15. Mr.S.S.Sundar, learned counsel appearing for the respondents 1 and 2 submitted that the respondents 1 and 2 are having no objection for receiving the said document as additional document in the Second Appeal. 16. Accordingly, M.P(MD)No.1 of 2012 is allowed and the additional document is marked as Ex.A.16. However, I make it clear that the appellants shall rely upon the additional document, namely, the settlement proceedings marked in the Second Appeal, as it exists and shall not go beyond it and it is also made clear that the appellants shall not insist the lower Appellate Court to draw adverse interference with regard to the missing pages in the document for the reason that the said document was not produced by the concerned authorities. Since the learned counsel appearing for the respondents 1 and 2 has no objection for receiving the said document as additional document, there is no necessity for adducing any oral evidence before the lower Appellate Court with regard to the proof of this document. 17. In these circumstances, the substantial questions of law Nos.3 and 4 are decided in favour of the appellants. The Judgment and Decree passed in A.S.No.37 of 2008 on the file of the Sub Court, Pudukkottai are set aside and the matter is remanded back to the Sub Court, Pudukkottai for fresh consideration. 17. In these circumstances, the substantial questions of law Nos.3 and 4 are decided in favour of the appellants. The Judgment and Decree passed in A.S.No.37 of 2008 on the file of the Sub Court, Pudukkottai are set aside and the matter is remanded back to the Sub Court, Pudukkottai for fresh consideration. On receipt of the papers, the Sub Court, Pudukkottai shall decide the matter afresh, after taking into consideration the available oral and documentary evidence let in by both parties and decide the appeal afresh on merits and in accordance with law, without being influenced by any of the observation given in this Second Appeal, within a period of eight weeks from the date of receipt of a copy of this Judgment. 18. With these observations, the Second Appeal is allowed. The parties shall appear before the Sub Court, Pudukkottai on 14.10.2015. However there shall be no order as to costs. Consequently, connected M.P (MD)No.1 of 2011 is also closed. Note:-Issue order copy on 09.10.2015 and the Registry is directed to send back the original records to the Sub Court, Pudukkottai along with a copy of this Judgment on or before 12.10.2015. Document marked in this second appeal on the side of the appellants/plaintiffs:- Ex.A.16 – 08.10.2015 – The file relating to the statutory statement proceedings conducted by the settlement authorities under Tamil Nadu Estates Abolition (and Conversion into Ryotwari) Act – Act 26/1946 relating to Survey No.204/1 and 213/1 in R.P.No.1/26/46/Aranthangi/91-pages 1 to 103.