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2016 DIGILAW 4069 (MAD)

K. Dhanapal v. Sheik Ismail

2016-11-30

T.RAVINDRAN

body2016
JUDGMENT : T. Ravindran, J. The plaintiff in this second appeal has challenged the judgment and decree dated 16.12.2010 made in A.S. No.48 of 2010 on the file of the II Additional Sub-Court, Villupuram, reversing the judgment and decree dated 26.11.2009 made in O.S. No.354 of 2005 on the file of the Principal District Munsif Court, Ulundurpet. 2. The suit has been laid by the plaintiff for declaration and permanent injunction. 3. The second appeal has been admitted and the following substantial question of law are formulated for consideration in this second appeal. a. Did not the appellate court err in marking Ex.B18 and B19 without directing the parties to let in additional evidence in the nature of oral evidence before making these documents? b. Did not the appellate court fail to follow the procedure laid down in Order 41, Rule 27 (b) and 27(2) of C.P.C.? 4. According to the plaintiff, her grandmother Pachayammal had purchased the suit property under two sale deeds, one, dated 04.01.1943 executed by Mottaiya Goundar and the other, dated 08.01.1943 executed by Sanniyasi Gounder. After Pachiammal, her husband viz., Mottaiya Padayachi and after Mottaiya Padayachi, the plaintiff's father Krishna padayatchi was in possession and enjoyment of the suit property and after her father, the plaintiff is in possession and enjoyment of the suit property and the plaintiff has also obtained revenue records mutated in his name and the plaintiff has title to the suit property and also, is in possession and enjoyment of the same and as the defendants interfered with the possession and enjoyment in respect of the suit property, he has laid the suit. 5. The defendants, in short, have put up their defence that the half share in the suit property i.e. 1.08 cents does not belong to Sanniyasi Gounder and therefore, Sanniyasi Gounder has no competency to sell that share to Pachayamml under the sale deed dated 08.01.1943 and therefore, it is contended that the plaintiff being the legal heir of Pachayammal, would not be entitled to seek the relief as prayed for in respect of that share. Further, according to the defendants, the half share i.e. 1.08 cents belonging to Angamuthu ammal w/o Nagamuthu Padayachi and she sold to the same to Venkatrama Chettiyar under the sale deed dated 20.11.1942 and after the death of Venkatrama Chettiyar, his son Krishnamoorthy Chettiyar and his minor son had alienated the property to the first defendant under the sale deed dated 02.06.1982 and thus, according to the defendants, the half share purchased under the sale deed dated 02.06.1982 belongs to the first defendant absolutely and the same is in his possession and enjoyment. 6. As regards the other half share situated on the northern side, the defendants have not put forth any objection. That share has been, according to the plaintiff, purchased by Pachayammal from Mottaiya Gounder under the sale deed dated 04.01.1943, which has been marked as Ex.A1 and the copy of the sale deed executed by Sanniyasi Gounder in respect of the other half share in the suit property dated 08.01.1943 has been marked as Ex.A2. Ex.A2 has been challenged by the defendants holding that Sanniyasi Gounder has no competency to alienate the same. 7. According to the defendants, the said share belonged to Angamuthu ammal and she had sold the property to Venkatrama Chettiyar on 20.11.1942. However, the defendants have not produced the sale deed dated 20.11.1942 before the trial court. Therefore, considering the evidence available, the trial court has upheld the case of the plaintiff and held that Pachayammal had purchased the other half share from Sanniyasi Gounder under Ex.A2 sale deed and accordingly, the trial Court decreed the suit as prayed for. 8. The second defendant preferred the first appeal. It is stated that after the judgment and decree of the trial Court, the first defendant had died. In the appellate court, it appears that an application has been taken out by the appellant Sheik Ismail to make an additional evidence in I.A.No.107 of 2010 and accordingly, the copy of the sale deed dated 20.11.1942 and the settlement deed executed by the first defendant in favour of the second defendant dated 18.06.2008 were projected as additional evidence by the appellant Sheik Ismail. It appears that notice has been ordered in the above said application to the respondent/plaintiff and inasmuch as the respondent/plaintiff and did not enter appearance and remained ex-parte, the trial Court had entertained the application holding that it is allowing the application in the interest of justice. The above application has been ordered on 01.07.2010. At that point of time, the main appeal is found to be pending. Therefore, it could be seen that the lower appellate court has not chosen to decide I.A.No.107 of 2010 on merits along with the main appeal and the main appeal came to be disposed of 16.12.2010. It could also be seen that in the main appeal also, the respondent/plaintiff had remained ex parte order initially and thereafter, on petition, the ex parte was set aside and she took part in the appeal proceedings. 9. There is no reference in the judgment of the first appellate court that any contention was put forth by the respondent/plaintiff on the merits of the additional documents allowed to be marked as Exs.B18 and 19. Therefore, it could be seen that the respondent/plaintiff was not put on notice as such, during the hearing of the main appeal about the reception of the additional evidence marked as Exs.B18 & 19. 10. No doubt, as found earlier, the respondent did not contest I.A. No.107 of 2010 and hence, set ex parte. However, in the affidavit appended to the petition of I.A. No.107 of 2010, there is no whisper made by the appellant Shiek Ismail as to why he was prevented from marking the copy of the sale deed dated 20.11.1942 during the course of trial. The only reason given is by inadvertence, the same could not be marked. It is not the case of the second defendant that the existence of the above said document is not known to him or the first defendant. As already mentioned supra, the defendants have resisted the case of the plaintiff by projecting the sale deed dated 20.11.1942. However, they had not cared to mark the same during the course of trial. Rightly or wrongly, the lower appellate court has chosen to mark the same and the settlement deed as additional evidence marked as Exs.B18 & 19. 11. As already mentioned supra, the defendants have resisted the case of the plaintiff by projecting the sale deed dated 20.11.1942. However, they had not cared to mark the same during the course of trial. Rightly or wrongly, the lower appellate court has chosen to mark the same and the settlement deed as additional evidence marked as Exs.B18 & 19. 11. The counsel for the appellant in this second appeal, mainly contended that the lower appellate court should not have straightaway admitted the additional evidence without affording an opportunity to the respondent/plaintiff to lead the evidence on the same and the failure of the lower appellate court to provide an opportunity to the appellant has caused irreparable loss and hard ship and therefore, the matter requires to be remitted back to the lower court for enabling the parties to adduce evidence. Per contra, it is argued by the respondent counsel that the sale deed dated 20.11.1942 has already been pleaded by the defendant in the written statement and therefore, there is no necessity for leading oral evidence on the additional evidence and the lower appellate court was right in considering the said document and non suiting the plaintiff as regards the southern half portion of the suit property comprised in Ex.B18. 12. In support of his contention, the counsel for the appellant placed reliance upon the decision reported in AIR 1976 Supreme Court 2403 (The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc,). A perusal of the above said decision would go to show that the appellate court should have given reasons while allowing the additional evidence that the same is required for enabling him to pronounce judgment or for any substantial cause as contemplated under Order 41, Rule 27 & 28 C.P.C. Further, the principles of law enunciated as regards the reception of the additional evidence under Order 41, Rule 27 & 28 C.P.C are also on the same lines. 13. In the light of the above said authority, it could be seen that the lower appellate court without giving any reason whatsoever had allowed the application filed by the second defendant in I.A.No.107 of 2010 as regards the reception of the additional evidence. That apart, the lower appellate court has also not chosen to dispose of the application along with the main appeal. That apart, the lower appellate court has also not chosen to dispose of the application along with the main appeal. It is not clearly made out as to whether at all the respondent/plaintiff had knowledge about the receipt of the additional evidence in the main appeal. The judgment of the lower appellate court does not point out that any submissions were made by the respondent/plaintiff as regards the validity of the above documents. 14. It is argued by the respondent counsel that the additional document Ex.B18 is dated 20.11.1942 and much earlier to the title deed relied upon by the plaintiff dated 08.01.1943 and therefore, the lower appellate court has rightly rejected the plaintiff's case based upon Ex.B18 as regards the property comprised therein and therefore, there is no need for letting in oral evidence on the document. However, as rightly argued by the counsel for the appellant, it is found that though Ex.B18 is dated 20.11.1942, the document seems to have been registered only on 15.01.1983. On the other hand, Ex.A2 the document dated 08.01.1943 had been executed and registered on the same date. Pointing to the same, it is argued by the counsel for the appellant that inasmuch Ex.A2 was executed and registered in favour of the plaintiff's predecessor in title prior to the execution of Ex.B18, the lower appellate court without directing the parties to let in additional evidence on that aspect, erred in accepting Ex.B18 straightaway and on that score alone, the matter should be remitted back to the lower appellate court for fresh consideration. That apart, a reading of Ex.B18 would go to show that the seller viz., Angamuthu ammal had derived title to the property from her mother Muthammal and also, there is a recital that the settlement deed executed by Muthamml in favour of Sanniyasi Gounder is invalid. On the other hand, the recitals found in Ex.A2 indicate that Sanniyasi Gounder had claimed title to the property comprised therein based upon the purchase made by his mother Muthammal dated 21.03.1927 and the settlement deed executed in his favour by Muthammal, however the date of settlement deed has not been mentioned in the said document. Therefore, it could be seen that both Angamuthu ammal and Sanniyasi Gounder have claimed title to the disputed property from Muthammal and accordingly, it appears that they had alienated to their purchasers under different sale deeds. Therefore, it could be seen that both Angamuthu ammal and Sanniyasi Gounder have claimed title to the disputed property from Muthammal and accordingly, it appears that they had alienated to their purchasers under different sale deeds. Pointing to the same also, it is argued by the counsel for the appellant that oral evidence, on the above aspect also, requires to be adduced and considered and therefore, prayed for remittance of the matter back to the lower appellate court. 15. In the light of the above discussions, I am of the considered view that the approach of the lower appellate court in accepting the reception of the additional evidence and also placing reliance on the same for rejecting the case of the plaintiff as regards the disputed property is misdirected and against the cannons of well established principles of law with reference to Order 41, Rule 27 & 28 CPC. Be that as it may, inasmuch the additional evidence had been received, in the light of the above reasons, in the interest of justice, the matter requires to be remitted back to the lower appellate court with a direction to the lower appellate court to enable the parties to adduce evidence on the additional documents received and thereafter, dispose of the appeal on merits. 16. Resultantly, the substantial questions of law formulated in this second appeal are answered in favour of the appellant and against the respondent. 17. In conclusion, the judgment and decree dated 16.12.2010 made in A.S. No.48 of 2010 on the file of the II Additional Subordinate Court, Villupuram, are set aside and the matter is remitted back to the lower appellate court with a direction that the lower appellate court shall afford an opportunity to the parties to adduce further evidence on the additional evidence marked as Ex.B18 & 19 as contemplated under Order 41 Rules 27 & 28 and thereafter, dispose of the appeal on merits in accordance with law. Accordingly, the second appeal is allowed. No costs.