Madras High Court
Mari (Died) vs Pattani (Died) on 26 February, 2021
S.A.No.528 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.02.2021
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.528 of 1999
and
C.M.P.(MD).No.1 of 2015
1.Mari (Died)
2.Karmegam
3.Ramalakhsmi
4.Navasakthi
5.Thangappan
6.Boopathi
7.Tamilselvan ... Appellants
(Appellant Nos.2 to 7 are brought on record as legal representatives of
the deceased sole appellant vide order of this Court dated 21.01.2021
made in C.M.P.(MD).No.450 and 448 of 2021 in S.A.No.528 of 1999)
Vs.
1.Pattani (Died)
2.Kamala
3.Dharmarajan
4.Geetha
5.Kamalanathan
6.Santhanakrishnan
7.Manjula
8.Nagalakshmi
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9.Sundaraganathan ... Respondents
1/8
S.A.No.528 of 1999
(Respondent Nos.2 to 9 are brought on record as the legal representatives
of the deceased sole respondent vide order of this Court dated
06.05.2015 made in M.P.NO.5 of 2013 in S.A.No.528 of 1999)
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree, dated 13.01.1999 made in A.S.No.122 of 1997, on
the file of the learned District cum Sessions Judge and Chief Judicial
Magistrate, Ramanathapuram, reversing the judgment and decree, dated
23.12.1996 made in O.S.No.423 of 1993, on the file of the learned
Principal Disrtrict Munsif, Ramanathapuram.
For Appellants : Mr.N.Maniyarasu
For Respondents : Mr.R.Subramanian
JUDGMENT
This second appeal has been filed as against the judgment
amd decree of the reversal finding of the First Appellate Court, setting
aside the judgment and decree of the trial Court, dismissing the suit as
prayed for declaration and injunction.
2. The parties are referred to as per their own ranking before
the trial Court.
3. The brief facts leading to the filing of the present second
appeal are as follows:
http://www.judis.nic.in 3.(1). It is the case of the plaintiff that the suit property
bearing No.334/3 is situated at Narayana Mangalam Group,
S.A.No.528 of 1999
Vadakunenthal Village, Ramanathapuram District. The plaintiff traces
the title through his grand-father, viz., Dharmaraj, in whose favour, the
Patta No.6 is said to have been issued by the Samasthanam. After his
demise, his two sons viz., Perisamy Naidu and Subbaiah Naidu, have
inherited the property. Thereafter, there was a partition in the property.
The above said Periyasamy Naidu was allotted some other properties and
the another son viz., Subbiah Naidu was allotted the suit property. The
plaintiff and his brother are the sons of the above said Subbiah Naidu.
The plaintiff is looking his property and also his brother's property.
3.(2). The defendant in the suit is the daughter of one
Koothayee Marathi. The above said Koothayee Marathi had purchased
the northern portion of the suit property from one Gurusamy Naidu by
virtue of a sale deed. The patta related to the suit property has been
mistakenly issued in favour of the defendant’s mother. The present patta
number to the suit property is Patta No.285. Besides, the plaintiff had
been enjoying the property and perfected his title by adverse possession.
4. It is the contention of the defendant that the property
absolutely belonged to her mother and she was granted a patta and hence,
she prayed for dismissal of the suit.
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S.A.No.528 of 1999
5. Based on the above pleadings, the trial Court has framed
the following issues:-
“(i). Whether the plaintiff is entitled to
the relief of declaration?
(ii). Whether the suit property is in
possession of the defendant? Hence, can injunction
be granted?”
6. During trial, on the side of the plaintiff, P.W.1 and P.W.2
were examined and Ex.A.1 to Ex.A.5 were marked. On the side of the
defendant, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.8 were
marked. Besides Ex.C.1 and Ex.C.2 were marked as Court documents.
7. Based on the above evidence and materials, the trial Court
decreed the suit. However, the First Appellate Court has set aside the
judgment and decree of the trial Court.
8. The First Appellate Court has admitted an additional
evidence in I.A.No.411 of 1998 and received Ex.A.6 as an additional
document. Based on the above document, the First Appellate Court has
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reversed the findings of the trial Court. It is to be noted that no
S.A.No.528 of 1999
opportunity whatsoever was given to the parties to adduce rebuttal
evidence. The document has not been proved in the manner known to
law
9. The learned counsel appearing on either side submitted
that the findings of the First Appellate Court are merely on the basis of
Ex.A.6. No opportunity was given to the parties to adduce rebuttal
evidence. Hence, both sides fairly submitted that the matter has to be
remanded back to the trial Court, for a fair decision.
10. The following substantial questions of law have been
framed by this Court in the Second Appeal.
“1. Whether the Appellate Court is legally right in
allowing to file additional document without proof and
oral evidence?
2. Whether the Lower Appellate Court is legally
right in admitting and relying on ExP-5, especially, when
no one connected with the documents was examined?
3. Whether the Lower Appellate Court is legally
right in rejecting the decision of Revenue authorities
without independently deciding the title to the suit
properties?”
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S.A.No.528 of 1999
11. As discussed above, the judgment of the trial Court has
been reversed merely on the basis of Ex.A.6. As rightly pointed out by
both sides, no opportunity has been given to the parties to adduce
rebuttal evidence. It is also useful to refer to the judgment of the
Hon'ble Apex Court reported in (2018) 4 SCC 659 in the case of
Akhilesh Singh Alias Akhileshwar Singh Vs. Lal Babu singh and
others. While that being so, after the acceptance of an additional
evidence, an opportunity ought to have been given to the other side to
lead evidence in rebuttal or to explain the admission contained in the sale
deed or documents. Not granting such an opportunity, the judgment
passed by the Courts below cannot be sustained.
12. Accordingly, this Court is of the view that the main
document which was relied upon by the First Appellate Court is Ex.A.6.
Therefore, without any opportunity being given to the parties to give
evidence in rebuttal, the First Appellate Court ought not to have reversed
the judgment of the trial court. Such view of the matter, the entire
findings of the First Appellate Court is set aside and the matter is
remanded back to the First Appellate Court to give an opportunity to
both parties to lead evidence, particularly, with reference to Ex.A.6
which was also received as an additional document and decide the issue
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as afresh. The entire exercise shall be completed within a period of three
S.A.No.528 of 1999
months from the date of receipt of a copy of this judgment and the
Registry is directed to forward all the documents to the First Appellate
Court, forthwith.
13. With the above observations and directions, the Second
Appeal stands disposed of. No costs. Consequently, the connected
miscellaneous petition is closed.
26.02.2021
Index : Yes/No
Internet : Yes/No
tsg
To
1.The District cum Sessions Judge
and Chief Judicial Magistrate, Ramanathapuram.
2.The Principal Disrtrict Munsif, Ramanathapuram.
3.The Section Officer,
V.R. Section, Madurai Bench of Madras High Court, Madurai.
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N.SATHISH KUMAR,J.
S.A.No.528 of 1999
tsg
Judgment made in
S.A.No.528 of 1999
Dated :
26.02.2021
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