Madras High Court
S.Natarajan vs P.K.Rajan on 7 April, 2021
S.A.No302 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
S.A.No.302 of 2021
S.Natarajan ... Appellant
Vs.
1.P.K.Rajan
2. S.Palanisamy ... Respondents
Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 19.11.2020 made in
A.S.No.11 of 2015 on the file of II Additional Subordinate Court, Erode
reversing the judgment and decree dated 31.10.2014 made in O.S.No.14 of
2013 on the file of I Additional District Court, Erode and pray to set aside
the same.
For Appellant : Mr.S.Kaithamalai Kumaran
JUDGMENT
Mr.S.Kaithamalai Kumaran, learned counsel on record for sole
appellant in the captioned second appeal is before this Virtual Court i.e., a
web hearing on a videoconferencing platform.
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2. Captioned second appeal, which is under Section 100 of 'The Code
of Civil Procedure, 1908' ('CPC' for the sake of brevity) has been preferred
against a judgment and decree dated 19.11.2020 made by the 'II Additional
Subordinate Judges Court, Erode' (hereinafter 'first Appellate Court' for the
sake of brevity) wherein the first Appellate Court interfered with and
reversed a judgment and decree dated 31.10.2014 made in O.S.No.14 of
2013 on the file of First Additional District Munsif Court, Erode
(hereinafter 'trial Court' for the sake of brevity).
3. Suit property is land admeasuring 1.5 acres or thereabouts, which
originally belonged to one Sengoda Gounder (father of defendants 1 and 2
before the trial Court). It is the case of the plaintiff in the trial Court that
suit property was purchased in and by a registered sale deed dated
22.12.1994, which was marked as Ex.A1 before the trial Court. The
description of the suit property in the plaint itself says that the re-survey
numbers of the suit property has been wrongly given as 122/3, 122/10 and
122/11 in Ex.A1 sale deed whereas it is actually 122/4. 122/11 and 122/12.
These are re-survey numbers in Gangapuram village in Erode Taluk situate
within Perundurai sub-registration district and Erode registration district.
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To be noted, there is no dispute about the boundaries. The suit property as
described in the plaint is as follows:
'brhj;J tptuk;
<nuhL hpoL. bgUe;Jiw rg;hpoL. <nuhL
jhYf;fh. bf';fhg[uk; fpuhkk; f/r/8//E2A. f/r/8//E2C
g[.V/2/56 ,jw;F g[jpa ru;nt vz;. 122/4. 122/11 and 122/12
,jpy; thjp fpiuak; bgw;w brhj;Jf;F brf;Fg;ge;jp
rj;jp nuhl;Lf;Fk; bjw;F
1 kw;Wk; 2 gpujpthjpfSf;F ghj;jpag;gl;l
brhj;Jf;Fk; tlf;F
1 kw;Wk; 2 gpujpthjpfSf;F ghj;jpag;gl;l g[/V/081
brz;l; g{kpf;Fk; ntW egh; brhj;Jf;Fk; fpHf;F
Rg;igah ft[zl
; h; tpw;Wtpl;l g{kpf;Fk; nkw;F
,jd; kj;jpapy; vy;.gP.gp bfhg;g[ tha;ff
; hy;
eP'f
; yhf g[.V/1.50 tp!;jpuzKs;s g{kp g{uht[k; ,jw;F
rk;ge;jg;gl;l khtif kutif khK:y; tHpeil jlk;
kw;Wk; vy;.gP.gp ghrd ghj;jpak; rfpjk;/
jtWjyhf nkw;go brhj;J hP/ru;nt vz;. 122/3.
122/10 and 122/11 vd fpiuag;gj;jpuj;jpy; cs;sJ)
2014k; Mz;L mf;nlhgh; khjk; 31 k; ehs; vd;
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S.A.No302 of 2021
ifbahg;gKk; ,e;ej
P pkd;w Kj;jpiua[k; ,jdoapy;
,lg;gl;L tH';fg;gl;lJ/'
4. Before the trial Court, defendants completed pleadings by filing a
written statement dated 30.07.2013 and an additional written statement,
which was filed in February of 2014. Post completion of pleadings, issues
were framed and parties went to trial. Sole plaintiff examined himself as
PW1. On plaintiff's side 5 exhibits, namely Exs.A1 to A5 were marked of
which a certificate issued by the jurisdictional 'Village Administrative
Officer' ('VAO' for the sake of brevity) dated 13.09.2012 marked as Ex.A3
is of significance. It is also important to note that this (Ex.A3) and other
exhibits were marked without any objection. More importantly, the
defendants neither let in oral evidence nor marked any document before the
trial Court.
5. After full contest, trial Court passed an interesting judgment and
decree dated 31.10.2014. This Court is inclined to describe it as interesting,
as the three issues framed are as follows:
'1) tHf;F brhj;J thjpf;F jdpj;J ghj;jpag;gl;L
mtuJ mDgtj;jpYk;. RthjPdj;jpYk; cs;sjh>
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S.A.No302 of 2021
2) thjp nfhhpathW tpsk;gi
[ f kw;Wk; mjd;
bjhlu;rr
; pahf cWj;Jf; fl;lis ghpfhuk;
fpilf;ff;Toajh>
3) thjpf;F fpilf;ff;Toa ,ju ghpfhuk; vd;d> '
6. While answering Issue No.2 which pertains to whether the plaintiff
is entitled to declaration and consequential injunction as prayer for, the trial
Court observed that there is no cause of action for the suit and therefore, the
plaint is hit by Order VII Rule 11(a) of CPC. To be noted, this is wrongly
mentioned as Order VII Rule 11(i)(a) in the trial Court judgment. It is
obviously Order VII Rule 11 (a) of CPC and this Court takes it as an
inadvertent typographical / secretarial error and deems it appropriate to
leave it at that. In other words, trial Court has come to the conclusion that
the plaint does not disclose a cause of action and Order VII Rule 11(a) of
CPC kicks in. If this be the case, one has to go by uncontroverted
averments in the plaint without adding or subtracting or looking into
evidence before the trial Court. The trial court after holding that said plaint
does not disclose a cause of action within the meaning of Order VII Rule
11(a) CPC has a) looked into oral and documentary evidence before it and
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S.A.No302 of 2021
b) ultimately dismissed the suit (not rejected the plaint). This is the reason
why this Court is inclined to describe it as interesting. Relevant portion of
the trial Court judgment while answering Issue No.2 reads as follows:
'.....g[y vz; jtwhf ,Ug;gij bghWj;J tHf;F
jhf;fy; bra;Js;sjhf TwpapUg;gjhYk; ,t;tHf;if
jhf;fy; bra;a thjpf;F tHf;F K:yk; vJt[k; ,y;yhj
fhuzj;jpdhYk; ,t;tHf;F chpikapay; eilKiwr;
rl;lk; fl;lis 7 tpjp 11(i)(a) d; fPH; tHf;F
nfhg;gpypUe;J epuhfhpf;fj;jf;fjhfpwJ/ tHf;F K:yk;
vJt[k; ,y;yhjjhy; ,t;tHf;F epiyf;fj;jf;fjy;y/
nkYk; Fwpj;jtif khw;wPL rl;lk; gphpt[ 26d; go thjp
mtuJ FWf;F tprhuizapy; TwtJ nghy; g[y
vz;zpy; khw;wk; ,Ue;jhy; me;j Mtzj;ij jpUj;jk;
bra;a jhd; tHf;F jhf;fy; bra;a ntz;Lk;. tHf;F
brhj;ij bghWj;J chpik tpsk;g[if bra;a
nfhuf;Toajpy;iy. Fwpj;jtif khw;wPL rl;lk; 1963
jhTh; rl;l tpsf;f ciu 9tJ gjpg;g[ 1994y; gf;fk;
459y; fPHf
; f
; z;lthW Twg;gl;Ls;sJ:
“No cause of action accrues to a plaintiff until there is some
infringement. The plaintiff therefore has to allege and prove
hostility on the part of the defendant', If the defendant does not deny
or is not interested to deny either the plaintiff's status or title. the
Latter has no business to drag him into court. Vdnt ,t;tHf;F
epiyf;fj;jf;fjy;y/ thjp jug;gpy; ntyhak;khs;
kw;Wk; gyh;///////nky;KiwaPLjhuh;fs; ⁄vjph;⁄ vk;/fe;jrhkp
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kw;Wk; gyh;////////vjph;kDjhuh;fs; vd;w tHf;fpy;
gpwg;gpf;fg;gl;L vk;/vy;/n$/1998 gf;fk; 529y;
btspahfpa[ss
; Kd; jPh;gi
; g nfhol;L fhl;o
thjplg;gl;lJ/ nkw;fz;l tHf;F vjph;nfhUhpik
rk;ge;jg;gl;ljhFk;/'
7. Thereafter the trial Court has gone on to hold as follows:
',t;tHf;fpy; vjph; nfhUhpik bjhlh;ghf vt;tpj
tHf;Fk; ,y;iy/ vdnt nkw;fz;l Kd; jPh;g;g[
,t;tHf;fpd; bghUz;ikf;F bghUe;jf;Toajpy;iy/
vdnt thjp nfhhpathW tpsk;gi
[ f kw;Wk; mjd;
bjhlh;rr
; pahf epue;jh cWj;Jf; fl;liza[k;
fpilf;ff;Toajpy;iy vd;Wk; nkw;fz;o vGtpdhtpw;F
,e;ej
P pkd;wk; tpilaspf;fpd;wJ/
//////////////
//////////////
,Wjpahf. thjpapd; ,t;tHf;F js;Sgo bra;J
jPh;g;gspf;fg;gLfpd;wJ/ tHf;fpd; jd;ik Fwpj;J
bryt[bjhif vJt[k; tpjpf;fg;gltpy;iy/'
8. Be that as it may, the above also essentially turns on Section 26 of
the Specific Relief Act, 1963, which deals with rectification of instruments.
To be noted, this Court has already mentioned that even in the plaint and
plaint schedule it has been mentioned that the survey numbers have been
wrongly mentioned in the title deed, namely Ex.A1.
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9. The plaintiff in the suit (first respondent in the second appeal
before this Court) carried the judgment of trial Court in appeal by way of a
regular First Appeal under Section 96 CPC vide A.S.No.11 of 2015 on the
file of 'II Additional Subordinate Court, Erode' (hereinafter 'first Appellate
Court' for convenience). In the first Appellate Court, the defendants entered
appearance and contested the first appeal. In the first Appellate Court also
no additional evidence was let in. In other words, there was neither
additional oral evidence nor additional documentary evidence i.e., exhibits.
Broadly stated appeal was predicated on the ground that aforementioned
Ex.A3 has been marked without examining the VAO.
10. The first Appellate Court, which is indisputably a Court of fact,
examined the entire oral / documentary evidence before it, reversed the
judgment of the trial Court / decreed the suit primarily on the basis that
Village Administrative Officer's Certificate which talks about correlation of
re-survey numbers, namely Ex.A3, has been marked without objection
before the trial Court and it cannot be gainsaid by the defendants that the
Village Administrative Officer was not examined.
11. Learned counsel for appellant submitted that the burden of proof
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is on the plaintiff, it is for the plaintiff to prove his title as the suit itself is
for declaration of title and consequential injunction. There is no difficulty
in accepting this submission. The burden of proof is on the plaintiff, but
what is of relevance is while the burden does not shift, the onus does. To
borrow the language of Hon'ble Supreme Court, onus of proof swings like a
pendulum from one end of the lis to the other. In the instant case, a careful
perusal of the proceedings before the Courts below bring to light that the
defendants, more particularly second defendant who is before this Court (to
be noted first defendant has not joined him) has taken the plea and has
contended that the VAO, who has issued Ex.A3, has not been examined. On
Ex.A3 being marked by consent, the onus shifts, though not the burden.
Nothing prevented the defendants from taking out an application for
examining the VAO or letting in contra evidence or objecting to marking to
Ex.A3. More importantly, a careful perusal of the sale deed reveals that the
boundaries are not in dispute and execution of Ex.A1 title deed is also not in
dispute. It is only a question of correlation qua re-survey numbers. The
first Appellate Court in Paragraph 20 has clearly observed that the second
defendant has not raised any objection while marking Ex.A3. Relevant
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portion of judgment of first Appellate Court reads as follows:
'20. The learned defendants counsel vehemently opposed that
the Village Administrative Officer has not been examined in support
of the plaintiff's claim. Therefore the document of Ex.A3 could not be
looked into. However the said document was marked through PW1
during the course of trial. The 2nd defendant have not at all raised his
objection while marking the document.......'
12. Likewise, the limitation point that has been raised has also been
negatived, but that is not being raised in this second appeal. Therefore, it is
not necessary to delve or dilate on this aspect of the matter. The first
Appellate Court also, on appreciation of evidence, more particularly Exs.
A4 and A5 has come to the conclusion that Sengoda Gounder was the
absolute owner of the suit property i.e., plaintiff's vendor and defendants'
father. It is only a question of correct re-survey numbers not being
mentioned. The first Appellate Court, which is a Court of fact, as already
alluded to supra, has also noted that execution of the title deed qua suit
property with specific boundaries is not in dispute. This is captured and
articulated in paragraph 15 of the judgment of the first Appellate Court,
which reads as follows:
'15. The plaintiff case is that the defendants and their father
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execute the suit properties with a specific boundaries. There is a
mistake crept in the sale deed only with respect of new resurvey
number. As part as concern title and execution of the sale deed, there
is no dispute. But the 2nd defendant vehemently disputed that the
property comprised in S.F.No.122/3 is their ancestral property, the
appellant has no right, interest in the survey number. While
considering the said aspects this court referred the schedule of
property mentioned in the Ex.A1 sale deed. In Ex.A1 sale deed it has
been categorically mentioned the survey No.8/E2A, 8/E2C in
corresponding new R.S.No.122/3, 122/10 and 122/11. As per as
concern old survey number, extent, boundaries, title with respect of
suit properties are not disputed at all by the defendants, whereas
disputed only as to the New resurvey number. '
13. Paragraphs 11, 12, 21 and 24 of the judgment of first Appellate
Court are also relevant and the same read as follows:
'11. Point 1:-The appellant's counsel argued that the suit
property originally belongs to one Sengoda gounder who is none else
father of the defendants. The plaintiff purchased the suit property
from the said Sengoda gounder with defendants by virtue of registered
sale deed dated 22.12.1994 under Ex.A1. Ever since he has been in
possession and enjoyment over the suit property as absolute owner.
Of late, when the plaintiff tries to make his family arrangements and
he came to aware that S.F.No.8/E2A its corresponding R.S.No.122/3,
122/4 and S.F.No.8/E2C in corresponding R.S.No.122/11 and 122/12.
The correct resurvey number has not been mentioned, wrongly
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mentioned as R.S.No.122/3, 122/10 and 122/11 in the sale deed. Due
to error in the sale deed, a cloud over the plaintiff's title has been
created. Hence he was constrained to file the suit for declaration with
consequential injunction. In support of the plaintiff's case he was
adduced evidence and exhibits of certified copy of sale deed, parental
deed, correlation certificate and possession certificate has been
marked. Inspite of disputing the plaintiff's claim, the defendants have
not at all adduced any evidence. Whereas they have contended that
the plaintiff ought to have filed the suit for rectification of the survey
numbers. Further contended that the suit is barred by law of
limitation. The appellant relied the reported judgment of Hon'ble
Patna High Court reported in AIR 2005 PATNA 23 and report
judgment in KANTLJ 1987 2 379, LAWS (KAR) 1987 313. In view of
the above referred judgment, the appellant counsel put forth his
argument, Section 26 of Specific Relief Act does not and cannot be
held to take away the ordinary general jurisdiction of the civil court to
grant a decree for declaration of title. Further argued that since the
plaintiff came aware the mistake of the survey number crept in the
document only in the year of 2012. The suit has been filed within the
time. As such not barred by law of limitation. Therefore, just and
necessary to interfere the judgment and decree passed by the trial
court by setting aside the same and the suit may be decreed.
12. Per contra the learned respondent counsel vehemently
opposed that there is no pleadings denial of the title of the plaintiff in
the plaint. Unless title of the plaintiff is denied the plaintiff cannot
instituted the suit for declaration. The alleged sale deed was
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executed in the year of 1994. Whereas the suit has been filed in the
year of 2013 alleging that there is no mistake crept in the sale deed
with respect of survey number. Then the plaintiff ought to have laid
the suit for rectification of sale deed. The plaintiff has not demanded
the defendant so far to rectify the sale deed. The plaintiff filed another
suit in O.S.No.561/2012 for the relief of bare injunction and these
defendants and others have filed another suit against the plaintiff in
O.S.No.538/2012 seeking the relief of injunction. After institution of
the above both suits, the plaintiff has came up with present suit
vexatiously. The suit itself is not maintainable and the suit is barred
by law of limitation. The plaintiff wrongly valued the suit and paid the
court fees. Though the correlation certificate issued by Village
Administrative Officer has been marked, the concern Village
Administrative Officer has not been examined. Since the defendants
have not turned into the witness box the plaintiff should not take
advantage and the plaintiff should have prove his title when he sought
for the relief of declaration. The trial court has rightly dismissed the
suit on fair grounds. Therefore, the appeal is not maintainable and
liable to be dismissed. Further argued that the defendants has come
up with application permitting him to produce additional evidence of
plaint copy in O.S.No.561/2012 on the file of I Additional District
Munsif, Erode. In support of the defendants claim the same was
omitted to mark by inadvertence and mistake.
21. The learned defendants counsel contended that the plaintiff
has not at all made any demand before institution of suit and further
contended that the suit itself is bad for non joinder of necessary
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parties of other legal heirs of deceased Sengoda gounder. On bare
perusal of Ex.A1 sale deed it seems that the defendants being the sons
of Sengoda gounder along with Sengoda gounder executed the sale
deed in favour of the plaintiff in the year of 1994. Being one of the
executants, the defendants are estopped to either disprove or deny the
sale deed. As already discussed in view of Ex.A4 and Ex.A5 father of
the defendants Sengoda gounder is the absolute owner of the suit
property. While his life time, who had executed Ex.A1 sale deed
infavour of the plaintiff. After execution of the sale deed even the
Sengoda gounder had no right and interest with respect of the said
property. Being one of the executants and sons of Sengoda gounder it
is bounden duty of the defendants voluntarily executed a rectification
deed infavour of the plaintiff. Instead of executing rectification sale
deed, the defendants contended that the other legal heirs to be
impleaded. As already discussed the Sengoda gounder is the absolute
owner of the suit property, other legal heirs not at all have any right
over the suit property. If at all other legal heirs really have right over
the suit properties, they ought to have to institute separate suit for
their lawful right under the known provision of law. Moreover the
other legal heirs are also not come forward in the suit. Considering
the above discussion this court viewed that the other legal heirs also
having right in the suit property does not arise.
24. As discussed above and perusal of Ex.A1, the plaintiff have
established his title and traced predecessor title perfectly by marking
Ex.A4 and Ex.A5 documents. The plaintiff also proved his possession
over the property by marking Ex.A2. Whereas the 2nd defendant not at
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all adduced any evidence either to prove their contention or disprove
the contention of the plaintiff. The 2nd defendants being executant of
the sale deed cannot disputed the plaintiff's right without any valid
grounds. The plaintiff being purchaser of by paying hard earn money
his right cannot be denied, has to be protected. Therefore considering
above discussions this court viewed that the plaintiff is the absolute
owner of the suit properties and he is in peaceful possession and
enjoyment of the same.'
(Underlining made by this Court
for ease of reference)
14. Learned counsel for appellant, notwithstanding very many
grounds set out in the memorandum of grounds of appeal and
notwithstanding three questions having been proposed for being
propounded as substantial questions of law, projected the case on question
(b), which reads as follows:
'(b) Whether the Lower Appellate Court is justified in decreeing
the suit when the remedy open to the plaintiff is under Section 26 of
the Specific Relief Act by way of Rectification Deed?'
15. Keeping in view the Kanailal principle being a principle laid
down by Hon'ble Supreme Court in Kanailal Vs. Ram Chandra Singh
reported in (2018) 13 SCC 715, this Court deems it appropriate to set out
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that the points for determination in captioned Second Appeal are: (a)
whether Question 'C' which is urged (notwithstanding other
questions/grounds) qualifies as a substantial question of law arising on the
facts of this case? and (b) whether first Appellate Court can be found fault
with for interfering with the trial Court judgment and decree?
16. In the light of the narrative thus far, this Court is of the considered
view that the aforementioned question (b) does not arise as a question of
law, much less a substantial question of law as the first Appellate Court
being a Court of fact has gone by the correlation certificate issued by the
Revenue authorities and has decreed the suit, which in the considered view
of this Court, cannot be found fault with and it is not a case for intervention
under Section 100 of CPC. This Court reminds itself of the expression
'substantial question of law' being explained in a long line of authorities by
Hon'ble Supreme Court from Sir Chunilal V.Mehta and Sons Ltd., Vs.
Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC
1314 to Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC
179 and Hero Vinoth Vs. Seshammal reported in (2006) 5 SCC 545. In Sir
Chunilal Mehta's case, which is a Constitution Bench judgment relevant
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paragraph is 6 and the same reads as follows:
'6. We are in general agreement with the view taken by the
Madras High Court and we think that while the view taken by the
Bombay High Court is rather narrow the one taken by the former
High Court of Nagpur is too wide. The proper test for determining
whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether
if directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally
settled by this Court or by the Privy Council or by the Federal Court
or is not free from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled
and there is a mere question of applying those principles or that the
plea raised is palpably absurd the question would not be a
substantial question of law. '
17. To be noted, Rimmalapudi Subba Rao's case [Rimmalapudi
Subba Rao Vs. Noony Veeraju And Others reported in AIR 1959 Madras
969] rendered by a Hon'ble Full Bench of this Court has been approved by
Hon'ble Constitution Bench in Sir Chunilal Mehta case [Sir Chunilal
V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co.
Ltd., reported in AIR 1962 SC 1314] qua elucidation of the expression
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'Substantial Question of Law'. The position of law continues to hold the
field right up to Hero Vinoth as already alluded to supra and certain case
laws thereafter. Most relevant paragraph is Paragraph 12 and same reads as
follows:
18. The aforementioned question proposed neither calls for a debate
nor does it qualify qua any of the parameters qua substantial question of
law. Hon'ble Supreme Court recently rendered a judgment dated 16.11.2020
in Civil Appeal No.8971 of 2010 being Kirpa Ram Vs. Surendra Deo Gaur
and others reported in 2020 SCC Online SC 935 , wherein it has reiterated
that a second appeal can be dismissed at the admission stage without
formulating substantial question of law if none arises. Relevant paragraph
is paragraph 25, which reads as follows:
'25. In a judgment reported as Ashok Rangnath Magar v. Shrikant
Govindrao Sangvikar5, this Court held that the second appeal can
be dismissed without even formulating the substantial question of
law. The Court held as under:
“18. In the light of the provision contained in Section 100 CPC and
the ratio decided by this Court, we come to the following conclusion:
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(i) On the day when the second appeal is listed for hearing on
admission if the High Court is satisfied that no substantial question
of law is involved, it shall dismiss the second appeal without even
formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is
satisfied that the substantial question of law is involved, it shall
formulate that question and then the appeal shall be heard on those
substantial question of law, after giving notice and opportunity of
hearing to the respondent;
(iii) In no circumstances the High Court can reverse the judgment of
the trial court and the first appellate court without formulating the
substantial question of law and complying with the mandatory
requirements of Section 100 CPC.'
Therefore, this Court has no hesitation in coming to the conclusion
that no substantial question of law arises for consideration in the captioned
second appeal and the captioned second appeal is dismissed at the
admission stage. Considering the nature of the matter and considering the
submissions made, there shall be no order as to costs.
07.04.2021
Speaking order: Yes
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Index: Yes
gpa
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M.SUNDAR.J.,
gpa
S.A.No302 of 2021
07.04.2021
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