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2017 DIGILAW 3786 (MAD)

Padhalavadivu v. T. Rajakaniammal

2017-11-14

V.BHAVANI SUBBAROYAN

body2017
JUDGMENT : This Civil Miscellaneous Appeal has been filed against the Judgment and Decree, dated 28.02.2003 made in A.S.No.39 of 1998 on the file of the Principal District Court, Tuticorin, reversing the Judgment and Decree, dated 28.07.1997 made in O.S.No.377 of 1995 on the file of the Additional District Munsif, Tiruchendur. 2. Originally, the first respondent/plaintiff-Rajakaniammal filed a suit in O.S.No.377 of 1995 on the file of the Additional District Munsif Court, Tiruchendur, against one Kandasamy Nadar, who is the defendant in the suit, for the reliefs of declaration of title and for permanent injunction and in the alternative for recovery of the first schedule property from the defendant. The first respondent/plaintiff submitted that the suit schedule item Nos.1 to 3 originally belonged to one Arumuganainar Nadar, who acquired the suit property by virtue of a sale deed registered as Document No.1631/47 and the plaintiff's father-Narayana Nadar, who is the kartha of the family, purchased the schedule mentioned properties in the name of his son, namely Thirusangu Nadar, through a registered sale deed, dated 05.09.1950 and the same was registered at Kurumbur Registration Office as Document No.2211/50 and the first respondent/plaintiff's father had put up a mud wall with palmyrah leaf house and lived thereon and after registration of the sale deed, Thirusangu Nadar left the house and for 39 years, he was not seen by anyone and he was legally a dead person in the eye of law. The first respondent/plaintiff, who is the sister of the said Thirusangu Nadar, states that her father Narayana Nadar mortgaged the suit second schedule property to the defendant for a sum of Rs.75/- on 02.01.1962 through a registered othi deed, as per Document No.1 of 1960 at Kurumbur Sub-Registrar Office and the same was discharged by her father on 14.02.1963. Her father executed a registered gift deed out of love and affection on 09.01.1963 in favour of the first respondent/plaintiff in respect of the suit properties, which was registered as Document No.61/1963 at Kurumbur Sub-Registrar Office and till date, she was in possession and enjoyment of the suit properties. The thatched house was made of palmyrah leaves and the same was demolished due to heavy rain and she put up a cattle shed in the first item in the suit property. The thatched house was made of palmyrah leaves and the same was demolished due to heavy rain and she put up a cattle shed in the first item in the suit property. The first respondent/plaintiff further stated that the suit properties are Grama Natham and the first respondent/plaintiff and her father were in possession and enjoyment of the suit property from 1950 and she has paid House-Tax for more than the statutory period and she has also executed an Oothi deed in favour of one Sudarammal and the same was discharged on 25.05.1981, which was registered as Document No.401/1981. The defendant tried to interfere and demolish the cattle shed in the suit property and the same was prevented by the plaintiff. Hence, the first respondent/plaintiff has filed a suit for declaration, for consequential injunction and alternatively for recovery of the suit first schedule property from the defendant. 3. The defendant in the suit filed a written statement stating that the suit is not maintainable because the suit is prohibited under Benami Prohibition Act, since the suit properties were purchased by Narayana Nadar in the name of his son Thirusangu and further, it is stated that they have no right over the suit property and the same belonged to the father of the defendant by name Arumuganainar Nadar and the father of the defendant sold the suit schedule items 1 and 2 to one Thirusangu Nadar only for a sum of Rs.50/- and he got right and title over the suit property. The other documents created by Narayana Nadar, father of Thirusangu Nadar are not valid. During the month of March, 1964, when Thirusangu Nadar came to the Village, he orally sold the item Nos.1 and 2 to the defendant for a sum of Rs.85/- and also handed over possession to the defendant. Since the father of Thirusangu Nadar viz., Narayana Nadar had made some arrangements without the knowledge of Narayana Nadar, the defendant, confirmed the oral sale and obtained a document on 27.05.1964. From 1964, the defendant was in possession and enjoyment of the suit schedule item Nos. 1 and 2. In the suit first schedule, there is no house and the defendant had put up cattle shed and also constructed water pipe and he is in possession and enjoyment of the same. From 1964, the defendant was in possession and enjoyment of the suit schedule item Nos. 1 and 2. In the suit first schedule, there is no house and the defendant had put up cattle shed and also constructed water pipe and he is in possession and enjoyment of the same. The gift deed alleged by the first respondent/plaintiff is not proved and she is not entitled for the same and she is not living in that place and hence prayed for dismissal of the suit. 4. The trial Court, after considering the pleadings, oral and documentary evidences, dismissed the suit. Aggrieved by the said Judgment and Decree, the first respondent/plaintiff filed an appeal suit in A.S.No.39 of 1998, on the file of the Principal District Court, Tuticorin. Pending appeal suit, the first respondent/plaintiff filed an application in I.A.No.384 of 2002 under Order 41 Rule 27 C.P.C to receive the documents mentioned in the petition, as additional evidence in the appeal. 5. In the said I.A.No.384 of 2002, the first respondent/plaintiff has stated that she has misplaced the kist receipts etc., and hence they have not been marked before the trial Court. But the said documents have been traced out only after the disposal of the suit and when the appeal was filed in the Court. Hence the first respondent/plaintiff has instructed his Advocate at Madras to send these documents along with memorandum of appeal, which was prepared at Madras to her Advocate at Tuticorin. The first respondent/plaintiff came to know that the said documents were not sent along with appeal memorandum to her Advocate at Tuticorin and the said fact was known to her only recently. The documents sought to be marked will prove her case and the trial Court in its Judgment has stated that the first respondent/plaintiff has failed to prove possession of the property by producing kist receipts. If the documents sought to be marked in the appeal are not received, the first respondent/plaintiff would be put to irreparable loss and hardship. 6. The first appellant/second respondent filed a counter-affidavit and stated that the documents now sought to be produced by the first respondent/plaintiff are the documents obtained after filing of the suit and only in order to rectify the defects in the case of the first respondent/plaintiff, these documents have been created for the purpose of the case and prayed for dismissal of the petition. 7. 7. The lower Appellate Court, after considering the pleadings, both oral and documentary evidences and materials available on record, has taken up I.A.No.384 of 2002 for consideration and allowed the appeal and I.A.No.384 of 2002 and set aside the Judgment and Decree of the trial Court and remanded the matter back to the trial Court for receiving additional documents filed in the Appellate Court in I.A.No.384 of 2002 subject to their admissibility, relevancy and proof and giving opportunity for both sides to let in further evidence and decide the case according to law and the Court-fee paid on the memorandum of appeal is ordered to be refunded to the appellant and directed the trial Court to dispose of the suit within a period of three months. 8. Heard the learned counsel for the appellants and the learned counsel for the first respondent. 9. The learned counsel appearing for the appellants/respondents submitted that the lower Appellate Court has erred in law in remanding the matter back to the trial Court without satisfying the requirements contemplated under Order 41 Rule 23 and 23-A C.P.C., merely on the basis of the additional evidence produced before the lower Appellate Court. The lower Appellate Court also erred in entertaining the application in I.A.No.384 of 2002 for production of additional evidence without adverting to the scope of Order 41 Rule 27 C.P.C. He has further submitted that the lower Appellate Court had erred in law in not adverting to the absence of any allegations and non-production of documents before the trial Court so as to entertain the same before the lower Appellate Court and the lower Appellate Court had completely overlooked that the appeal came to be disposed of even without the additional evidence having regard to the nature of the relief sought and the specific findings of the trial Court. The lower Appellate Court erred in law in stating that the remand is necessary for the purpose of enabling the respondents to produce additional documents and the same is contrary to Order 41 Rule 23 C.P.C. 10. The lower Appellate Court erred in law in stating that the remand is necessary for the purpose of enabling the respondents to produce additional documents and the same is contrary to Order 41 Rule 23 C.P.C. 10. From the perusal of the records, it is seen that the lower Appellate Court while giving reasons for point No.1 stated that when the suit was conducted before the trial Court, the first respondent/plaintiff has misplaced the kist receipts etc., and hence they have not been marked in the trial Court and that the said documents have been traced out only after the disposal of the suit and when the appeal was filed in the Court and the first respondent/plaintiff has instructed her Advocate at Madras to send these documents along with memorandum of appeal which was prepared at Madras to her Advocate at Tuticorin. Since the first respondent/plaintiff came to know that the said documents were not sent along with the appeal memorandum to their Advocate at Turicorin and the said fact was known to her only recently, the documents sought to be marked will prove her case and if the documents sought to be produced in the appeal are not received, the first respondent/plaintiff will be put to irreparable loss and hardship. 11. In the counter-affidavit filed by the appellants/respondents, it is contended that the documents sought to be produced by the first respondent/plaintiff are the documents obtained after filing of the suit. The allegation that the said documents were misplaced during the trial of the case and that they were traced out only later and that the said documents were omitted to be filed along with memorandum of appeal, by the mistake done by her Advocate at Madras, is not true. Only in order to rectify the defects in the case of the first respondent/plaintiff, the documents have been created for the purpose of the case. 12. The appellants/defendants also further contended in the appeal that there is no evidence to show that the grounds of appeal was prepared at Madras. If ten years is calculated from the date of his deposition that his house was demolished before ten years, which has been recorded on 20.06.1997, that will go back to 20.06.1987 approximately. The second document sought to be filed is 01.06.1983 i.e., even prior to ten years. 13. If ten years is calculated from the date of his deposition that his house was demolished before ten years, which has been recorded on 20.06.1997, that will go back to 20.06.1987 approximately. The second document sought to be filed is 01.06.1983 i.e., even prior to ten years. 13. The findings of the lower Appellate Court that the documents which are sought to be received as an additional evidence are from 1991 to 1997, that too, prior to the Judgment dated 28.07.1997. Considering all the above facts, these documents also have to be considered for deciding the first respondent/plaintiff's claim. But the documents cannot be received in evidence without examining the parties which can be done by the trial Court which may also give a finding for both sides. Hence, the lower Appellate Court allowed the petition and the documents are ordered to be received in evidence subject to admissibility, relevancy and proof by the trial Court, which can be decided by the trial Court. 14. The lower Appellate Court has gone into the issues in detail and decided point No.1 in favour of the first respondent/appellant to receive additional documents, which requires reconsideration of the facts of the case along with the additional documents and the lower Appellate Court has remitted the matter back to the trial Court and there is no infirmity in the Judgment and Decree of the lower Appellate Court. 15. Since the suit is of the year 1995 and the appeal suit is of the year 1998 and the appeal was decreed in the year 2003 and now, 14 years have been elapsed, this Court is of the considered opinion that to meet the ends of justice, the trial Court can accept the evidence and decide the same by giving opportunity to both parties within a period of one year from the date of receipt of a copy of this order. 16. This Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.