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2022 DIGILAW 2625 (MAD)

H. Suresh v. Micheal J. Mani

2022-08-10

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayer in S.A.No.1473 of 2011: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.23 of 2006 dated 31.03.2010 on the file Additional District Judge Fast Track Court No.I, Poonamallee confirming the judgment and decree made in O.S.No.530 of 2000 dated 13.07.2005 on the file of the Sub Court, Poonamallee. In S.A.No.1474 of 2011: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.32 of 2006 dated 31.03.2010 on the file Additional District Judge, Fast Track Court No.I, Poonamallee against the judgment and decree made in O.S.No.530 of 2000 dated 13.07.2005 on the file of the Sub Court, Poonamallee.) Common Judgment: 1. Both the Second Appeals have been filed by the 1st and 2nd defendants in the same Original Suit namely O.S.No.530 of 2000 which was on the file of the Sub Court, Poonamallee. 2. By judgment dated 13.07.2005, the suit was partly decreed with respect to the reliefs of declaration of title and permanent injunction. With respect to the other reliefs sought, the suit was dismissed. 3. This necessitated two separate appeal suits being filed in A.S.Nos.32 of 2006 filed by the plaintiffs and A.S.No.23 of 2006 filed by the present appellants / 1st and 2nd defendants. Both the appeal suits came up for consideration before the Additional District Court / Fast Track Court Poonamallee and by common judgment dated 31.03.2010, A.S.No.23 of 2006 filed by the present appellants was dismissed and the other appeal suit namely A.S.No.32 of 2006 filed by the plaintiffs was allowed. 4. The grievance raised by the present appellants is that without there being a specific relief sought for recovery of of possession, the learned First Appellate Court Judge had granted such relief under Section 151 of CPC. 5. One other aspect pointed out by the learned counsel for the appellants in the present case is that points for consideration as stipulated under Order 41 Rule 31 CPC had not been framed by the First Appellate Court. 6. Raising such grievances and urging that those points require examination and that they are substantial questions of law, the present Second Appeals had been argued before me. 7. 6. Raising such grievances and urging that those points require examination and that they are substantial questions of law, the present Second Appeals had been argued before me. 7. A perusal of the records shows that though the Second Appeals had been filed in the year 2011 for the past decade and more, though it had been listed before various Single Judges of this Court, the Second Appeals have not yet been admitted and the learned Single Judges had not found any substantial question of law arising, worth admitting the Second Appeals. 8. Mr.Prakash Goklaney, learned counsel for the appellants, stated that, according to him the judgment under appeal has to be interfered owing to the ratio laid down by the Hon'ble Supreme Court reported in AIR 1993 SCC 957, Vinay Krishna V. Keshav Chandra and another. 9. The Hon'ble Supreme Court in that particular case was examining a suit for declaration of share in the property filed under Section 42 of the Specific Relief Act. In that particular case, the plaintiff was not in possession and there were also two other persons and tenants in possession. The plaintiff had failed to seek the relief of recovery of possession. The High Court had however granted such relief of recovery of possession. The Hon'ble Supreme Court had come down on that particular aspect of granting a relief of recovery of possession when not sought for directly by the plaintiff and therefore, interfered with the particular relief granted by the High Court. 10. Placing reliance on the aforementioned ratio laid down by the Hon'ble Supreme Court, Mr.Prakash Goklaney, learned counsel stated that the relief granted by the First Appellate Court with respect to grant of recovery of possession claiming powers under Section 151 of CPC should necessarily be interfered with. 11. A brief look at the facts would be advantageous to examine the issues further. 12. The plaintiffs who are the 1st and 2nd respondents herein claimed right, title and ownership of two specific plots namely, plot Nos.2 and 3, in a layout at Palaniyappa Nagar, Ambattur, Oragadam, Chennai. They claimed to have purchased the said plots which measured 5160 sq.ft., through their power of attorney on 11.01.1995 and which document had been registered as Document No.700/95 before the Sub-Registrar Office at Ambattur. They claimed to have purchased the said plots which measured 5160 sq.ft., through their power of attorney on 11.01.1995 and which document had been registered as Document No.700/95 before the Sub-Registrar Office at Ambattur. The plaintiffs claimed that they had also taken possession of the said plots and they had also put up a compound wall surrounding the plots. 13. It was stated that the 1st and 2nd defendants, who claimed to have purchase plot Nos.1 and 176 in the very same layout started interfering with their peaceful possession and also started to encroach upon the plots of the plaintiffs and also put up a small construction in that particular place. This necessitated the plaintiffs to institute the suit in O.S.No.530 of 2000 before the Sub Court, Poonamallee seeking declaration of title, permanent injunction to protect possession and also mandatory injunction to remove the construction already put up. 14. As stated, the Trial Court had granted reliefs of declaration of title and permanent injunction. 15. In the written statement filed by the 1st and 2nd defendants, they denied and disputed the claim of the plaintiffs. They claimed that plot No.1 measured 3402 sq.ft., and out of that particular area, the Northern portion of 2906 sq.ft., had been purchased by the 2nd defendant. It was further claimed that the remaining 496 sq.ft., in plot No.1 and 2400 sq.ft., in plot No.176 which were contiguous to each other in the Southern portion and which totally measured 2896 sq.ft., was purchased by the 1st defendant. It was claimed that owing to the fencing of the plots and since the vendor of the two plots were the same, they were both divided and taken by the 1st and 2nd defendant separately. It was therefore claimed that they were lawful purchasers of their respective plots and that they have every right to be in possession of such plots. 16. In view of such adversarial stand, necessary issues had to be framed and parties were invited to adduce oral and documentary evidence. 17. During evidence, the 1st and 2nd plaintiffs examined themselves as PW-1 and PW-2. They examined two other independent witness as PW-3 and PW-4. The 2nd defendant examined himself as DW-1 and the 1st defendant examined himself as DW-2. 18. The plaintiff marked Exs.A1 to A15 and for good measure the defendants also marked Exs.B1 to B25. 17. During evidence, the 1st and 2nd plaintiffs examined themselves as PW-1 and PW-2. They examined two other independent witness as PW-3 and PW-4. The 2nd defendant examined himself as DW-1 and the 1st defendant examined himself as DW-2. 18. The plaintiff marked Exs.A1 to A15 and for good measure the defendants also marked Exs.B1 to B25. All these documents surrounded the sale deeds of the respective parties and also documents reflecting consolidation of possession, mutation of revenue records and also the encumbrance certificates to once again establish that they had indeed purchased the plots. 19. Both the Courts below had recognized the title of the plaintiffs. Unless it is found that such a finding on the fact of title in favour of the plaintiffs with respect to plot Nos.2 and 3 are perverse, it may not be appropriate on the part of this Court to interfere with such finding. Both the Courts below, on the basis of the aforementioned evidence, had also confirmed that the plaintiffs are entitled to permanent injunction. Again in the absence of any perversity pointed out in such finding, it would be extremely injudicious to interfere with such finding. 20. The one aspect which has to be examined is with respect to the grant of recovery of possession by the First Appellate Court. The First Appellate Court had unfortunately overlooked the specific provision under Order 41 Rule 33 of CPC, but had granted recovery of possession though not sought for under Section 151 of CPC. When a specific provision was available it was not advisable on the part of First Appellate Court to fall back on its inherent jurisdiction under Section 151 of CPC. That may resorted to only in exceptional cases and when there is no specific provision available. 21. The learned counsel for the 1st and 2nd respondents pointed out that even if the First Appellate Court had not resorted to the specific provision under Order 41 Rule 33 of CPC, still Order 7 Rule 7 of CPC gives a small leverage to pass an order which is just in the circumstance even though a specific relief had not been claimed. 22. Order 7 Rule 7 of CPC, first places an obligation on the plaintiff to seek all reliefs which are to be sought while instituting the suit. 22. Order 7 Rule 7 of CPC, first places an obligation on the plaintiff to seek all reliefs which are to be sought while instituting the suit. Thereafter, a small window is granted, that even if such relief is not sought then, if it is just then it could be granted by the Court. 23. Such provision is confined to the Trial Court and not to the First Appellate Court. When the First Appellate Court acts as a Court which further examines the evidence already on record and also re-appreciates the facts of the case and if it is of the opinion that the relief granted should be moulded, then Order 41 Rule 33 of CPC comes into play. 24. But when a relief had not at all been sought, then there is no question of moulding any relief or granting any further relief. For every relief sought, the plaintiffs must pay necessary Court fees and even if the relief of declaration will be submerged with the Court fees a paid for the relief of declaration, still an obligation is on the plaintiffs to seek specific relief of recovery of possession. Therefore, to that particular extent, the judgment of the First Appellate Court requires to be interfered with. 25. The other aspect of non-framing of issues under Order 41 Rule 31 of CPC is once again dilatory in nature. 26. In Manjula v. Shyamsundar reported in (2022) 3 SCC 90 : (2022) 2 SCC (Civ) 33 : 2021 SCC OnLine SC 1119, the Hon'ble Supreme Court held as follows: “8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” 27. In Somakka (Dead) by LRs. Vs. V.K.P.Basavaraj (Dead) by LRs. reported in 2022 SCC OnLine SC 736, the Hon'ble Supreme Court held as follows: “34. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside. 35. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of non-consideration of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court. As such, we do not find any good reason to remand the matter to the High Court. We are of the view that in order to put a quietus to the litigation and relieve the parties from any further harassment, we set aside the judgment of the High Court and confirm the judgment and decree of the Trial Court to the extent it relates to item no. 3 of Schedule ‘A’ property described in the plaint, i.e. to say that the appellant and the respondent would be entitled to ½ share each in the said property. The Trial Court shall accordingly proceed to draw out the proceedings for final decree of partition.” 28. In the instant case, even if the matter is to be remanded back, no actual adversarial issue remains as on date between the parties. The appellants herein admit that the respondents are the owners of the plots Nos.2 and 3. The appellants herein also accepts that the respondents herein are in possession of plots Nos.2 and 3. 29. The only issue is with respect to recovery of possession. The learned counsel for the respondents had made it very clear that what was sought was only with respect to the compound wall and that relief was not insisted upon. Therefore with respect to the grant of relief of recovery of possession the issue has become otiose as on date and need not be examined any further. 30. Though substantial questions of law had not been framed, the Second Appeals are partly allowed with respect to interfering with the relief granted under Section 151 of CPC by the First Appellate Court relating to recovery of possession, but retained with respect to the declaration of title of plot Nos.2 and 3 and with respect to granting permanent injunction protecting possession of plot Nos.2 and 3 by the 1st and 2nd respondents herein. No costs.