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2022 DIGILAW 2125 (MAD)

V. Panneerselvam v. Kanniyammal

2022-07-15

C.V.KARTHIKEYAN

body2022
JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 30.08.1995 passed in A.S.No. 58 of 1994 on the file of the Subordinate Judge Court, Poonamallee, which reversed the Judgment and Decree dated 29.04.1994 passed in O.S. No. 1918 of 1993 on the file of the District Munsif Court, Tambaram.) 1. The plaintiff in O.S.No. 1918 of 1993 on the file of the District Munsif Court at Tambaram is the appellant herein. The said suit was decreed by Judgment dated 29.04.1994. Thereafter, the defendants filed A.S.No. 58 of 1994 which came up for consideration before the Sub Court at Poonamallee. By Judgment dated 30.08.1995, the appeal suit was allowed. This has necessitated the plaintiff to file the present Second Appeal. 2. The Second Appeal along with batch of other Second Appeals had been admitted on 27.11.1997 on the following two substantial questions of law:- "i) Whether the First Appellate Court was right and justified in law in admitting and relying on the additional evidence without affording an opportunity to the appellants to rebut and that too without examining whether the requirements of Order 41 Rule 27 of the Code of Civil Procedure were satisfied? ii) Whether the First Appellate Court was right and justified in law in reversing the Judgment and decree of the trial Court without drawing proper inference even from the proved facts." 3. The facts in brief are that the plaintiff claimed that he is the absolute owner of Plot No. 59 at Viduthalai Nagar, in S.No. 79 of Kovilambakkam Village and S.Nos. 377 part 381 part, 385 part, 386 part, 388 part, 389, 4a, 4b, 390 and 402/1 part of No. Kulathur, Madras in the layout duly approved by the Director of Town and Country Planning in L.P.D.M./D.T & C.P.No.12/75. It was claimed that the plaintiff had purchased the said plot from P.R. Udauabanu by registered sale deed bearing Document No. 2767 of 1988 dated 25.08.1988. The said sale deed had been produced as Ex.A-1 during the course of trial. After the purchase of the plot, patta had been obtained by the plaintiff in Patta No. 3031 from the Tahsildar, Saidapet Taluk. The said sale deed had been produced as Ex.A-1 during the course of trial. After the purchase of the plot, patta had been obtained by the plaintiff in Patta No. 3031 from the Tahsildar, Saidapet Taluk. It was claimed that the fifth defendant, who is the fifth respondent herein, claiming to act on behalf of the first to fourth defendants / first to fourth respondents herein had attempted to interfere with possession and therefore claiming a right, title and interest over the property and consequent right to protect possession. The suit had been filed seeking necessary relief of permanent injunction. 4. The defendants in their written statement however contended that the vendor of the plaintiff is not the true owner of the property. The first to fourth defendants claimed that they are the owners of a larger area of property and they had inherited the same from their parents, Thiruvengada Naicker and Alangarammal, who died on 06.06.1971 and 15.06.1985 respectively. The first to fourth defendants claimed that they are in possession and enjoyment of the property. The said defendants further claimed that they had never interfered with the possession of the plaintiff and it was therefore stated that there was no cause of action for the suit. It was also stated that therefore, the suit for injunction is not maintainable and would not lie. 5. By Judgment dated 29.04.1994, the District Munsif, Tambaram however granted the relief as sought in the plaint and decreed the suit. 6. The defendants then filed A.S.No. 58 of 1994 before Sub Court at Poonamallee. It must be mentioned that during the course of trial, the appellants in the First Appeal had also filed an application under Order 41 Rule 27 CPC seeking to produce one further document which they claimed was a continuous running sheet of Ex.B-1 which was already marked. The trial Court had rejected Ex. B-1 which was a copy of survey settlement register holding it did not bear the signature or seal of the concerned Official. The trial Court gave a definite finding that Ex.B-1 cannot be relied upon. 7. The trial Court had rejected Ex. B-1 which was a copy of survey settlement register holding it did not bear the signature or seal of the concerned Official. The trial Court gave a definite finding that Ex.B-1 cannot be relied upon. 7. By way of the application under Order 41 Rule 27 CPC, the appellants/defendants sought to produce a document which contained the seal and signature of the particular official and therefore, they claimed that it is the missing continuing sheet of Ex.B-1 and therefore sought permission to mark it as an additional document. 8. Before the First Appellate Court, a contention was raised by the respondent/plaintiff that the new document sought to be introduced had been signed by the additional personal assistant to the Collector of Chengalpattu at Kancheepuram District, which official had no authority to sign the said document. However, the First Appellate Court thought it fit to take the said document on record and proceeded to mark the said document as Ex.B-15. Thereafter, the First Appellate Court proceeded to deliver Judgment in the Appeal Suit. 9. The first substantial question of law which has been framed in this Second Appeal is with respect to the procedure adopted by the learned First Appellate Court Judge. It must be kept in mind that the additional document which was produced was claimed by the appellants/defendants before the First Appellate Court that it was a continuous additional sheet to Ex.B-1. If that be the contention, then necessary evidence should have been adduced to actually prove that the said particular document produced before the First Appellate court was actually an extension or the continuous sheet of Ex.B-1, particularly because Ex.B-1 did not have any signature or seal of the concerned Official and the additional document sought to be produced contained a particular seal and signature of a particular Official, who it was claimed was the Personal Assistant to the Collector of Chengalpattu at Kancheepuram District and who, it is alleged had no authority to either affix his signature or affix the seal. This document should have been proved in manner known to law. 10. The fact that it was continuous sheet to Ex.B-1 could have been established only during the course of trial. Such evidence is required particularly because there were two rival contentions. This document should have been proved in manner known to law. 10. The fact that it was continuous sheet to Ex.B-1 could have been established only during the course of trial. Such evidence is required particularly because there were two rival contentions. One, that it is a continuous sheet of Ex.B-1 and the other that it contained the signature of a Personal Assistant to the Collector of Chengalpattu at Kancheepuram District, who it is alleged had no authority or to issue sign such document, namely, survey settlement order. When placed with two rival contentions, the First Appellate Court should have been prudent to adopt the procedure as evidenced under Order 41 Rule 28 CPC and should have put the proof of that particular additional document to be tested by recording evidence. Taking it on file and straight away marking it as an exhibit had seriously affected and prejudiced the interest of the appellant herein / respondent before the First Appellate Court. 11. A more judicious approach would have been to record evidence before the said Court itself or to relegate the parties to the trial Court for the specific purpose of marking that particular document and during the course of proving the said document, to issue summons to the authority, who had actually signed the said document and examine him as a witness and verify whether he had actually sign the document and whether he had authority to sign the document. In the absence of this procedure being undertaken by the First Appellate Court, naturally the Judgement under Appeal suffers. 12. Order 41 Rule 28 of CPC is very clear on this particular aspect. This is as follows:- "28. Mode of Taking Additional Evidence:- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court." 13. An option is provided to the First Appellate Court Judge to either record evidence in the said Court itself or to forward the records to the trial Court to record evidence. An option is provided to the First Appellate Court Judge to either record evidence in the said Court itself or to forward the records to the trial Court to record evidence. Oral evidence may not always be required but in this particular case, I hold that oral evidence is required, particularly because the connection between the document now adduced and produced before the First Appellate Court and Ex.B-1 the document which had been originally produced will have to be established in manner known to law. 14. The learned counsel for the appellant pointed out that the first to fourth respondents have died. Details of the dates of death have not been given. Steps had not been taken to implead the legal representatives. However, even in the plaint, it had been stated that it was the fifth respondent, who acted on behalf of the first to fourth respondents. But since the matter is now reverted back to the First Appellate Court to follow the procedure under Order 41 Rule 28 CPC, the Judgment under Appeal will have necessarily have to set aside. 15. Let the First Appellate Court issue notice to the respondents therein and if as a fact it is found that the first to fourth respondents have died, then take necessary steps to implead the legal representatives taking into consideration issues of delay and consequent abatement and if reasons are advanced to explain delay, consider it with prudence and then proceed further. If steps are not taken, consequential orders may be passed. 16. It is also stated that the fifth respondent acting on behalf of the first to fourth respondents had also conveyed and sold the property subsequently. If that be the case, let necessary amendments to the cause title be made in accordance with law if applications are filed to implead the purchaser. 17. I would restrict myself to answering only the first substantial question of law, namely whether the First Appellate Court had properly followed the procedure as enunciated under Order 41 Rule 27 CPC and the consequential procedure under Order 41 Rule 28 CPC. 18. A perusal of the Judgment under Appeal shows that the procedure enunciated had not been followed. 17. I would restrict myself to answering only the first substantial question of law, namely whether the First Appellate Court had properly followed the procedure as enunciated under Order 41 Rule 27 CPC and the consequential procedure under Order 41 Rule 28 CPC. 18. A perusal of the Judgment under Appeal shows that the procedure enunciated had not been followed. In the circumstances of this particular case the said procedure must be followed as evidence is required, as pointed out above, to establish a direct link between the additional document produced and the document already on record in Ex.B-1. 19. The Judgment in A.S.No. 58 of 1994 is set aside and the matter is remanded back to the First Appellate Court / Sub Court, Poonamallee, for fresh consideration and to follow the proper procedure for marking of the document produced in the application filed under Order 41 Rule 27 CPC before the said Court in I.A.No. 304 of 2015. 20. The Registry is directed to forward the records back to the Sub Court, Poonamallee. On receipt of the records and on issuing notice and on determining the parties to the Appeal and on taking a decision with respect to the abatement or otherwise owing to the death of the first to fourth respondents and with respect to the impleading of further respondents, after that procedure is completed, the First Appellate Court may examine and take a concious decision about the procedure to be adopted under Order 41 Rule 28 CPC., and at any rate, complete the entire task within a period of six months from that particular date when aforementioned incidental proceedings are completed. 21. The Second Appeal is therefore allowed. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.