Madras High Court
Chellasamy ... 2Nd Defendant/ ... vs V.S.Benni on 5 July, 2021
S.A.(MD)No.83 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.83 of 2008
Chellasamy ... 2nd Defendant/ Cross Objector/
2nd Respondent/ Appellant
-Vs-
1.V.S.Benni
2.V.S.Benila
3.V.S.Bensili
4.Sarojini Bai ... Plaintiffs / Respondents / Respondents
5.Rajendra Prasad ... 1st Defendant / Respondent/ Respondent
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree in A.S.No.29 of 2003 dated
16.12.2006 on the file of the Sub-ordinate Judge, Kuzhithurai, confirming
the Judgment and decree in O.S.No.410 of 1997, dated 10.02.2003 on the
file of the II Additional District Munsif, Kuzhuthurai.
For Appellant : Mr.K.N.Thampi
For R1 & R4 : Mr.S.Kumar
For R2 & R3 : Minors represented by R4
For R5 : Mr.K.Esakki
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S.A.(MD)No.83 of 2008
JUDGMENT
The second defendant in O.S.No.410 of 1997 on the file of the
second Additional District Munsif Court, Kuzhithurai, is the appellant in
this second appeal.
2.The said suit was filed by the respondents 1 to 4 herein seeking the
relief of partition in respect of 7 cents of land in the suit property. The suit
was resisted by the appellant herein on very many grounds. The trial Court,
after a consideration of the evidence on record, dismissed the suit by
Judgment and decree dated 10.02.2003. Aggrieved by the same, the
plaintiffs filed A.S.No.29 of 2003, before the Sub Court, Kuzhithurai.
Since the trial Court had also rendered adverse findings against the
appellant herein, he filed cross objection. The first appeal filed by the
plaintiffs as well as the cross objection filed by the appellant herein / D2
were dismissed by judgment and decree dated 16.12.2006. Challenging the
dismissal of the cross objection, this second appeal has been filed by the
second defendant.
3.The second appeal was admitted on the following substantial
question of law:-
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S.A.(MD)No.83 of 2008
“Whether the first appellate Court is right in dismissing the cross
appeal filed by the appellant as a consequence of dismissal of the main
appeal preferred against the judgment and decree of the trial Court
after giving finding to the effect that Ex.B8 marked on the side of the
appellant herein is binding on the respondents herein?”
4.Heard the learned counsel on either side.
5.One of the defences taken by the appellant herein was that he had
filed O.S.No.349 of 1991 before the Principal District Munsif Court,
Kuzhithurai seeking the relief of declaration, permanent injunction and for
cancellation and that the said suit was decreed by judgment and decree
dated 02.12.1997.
6.The learned counsel for the appellant would point out that the first
defendant Rosemary was none other than the vendor of the plaintiffs and
that therefore, the judgment and decree passed in the said suit would
squarely bind the plaintiffs herein. According to him, the trial Court
erroneously gave a finding that the said Judgment and decree does not bind
the plaintiffs herein. His primary contention is that without framing an
issue as regards the binding nature of judgment and decree made in O.S.No.
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S.A.(MD)No.83 of 2008
349 of 1991, the trial Court could not have given a finding adverse to the
appellant. Though it is true that the first Appellate Court did frame an issue
in this regard, he pointed out that the first Appellate Court is obliged to
frame only a point for consideration. He faulted the approach of the Court
below.
7. Before I answer this contention of the learned counsel for the
appellant, I must note that the substantial question of law has been framed
on an erroneous assumption that the Appellate Court had mechanically
dismissed the cross objection merely because the main appeal filed by the
plaintiff got dismissed.
8.I went through the impugned judgment passed by the first Appellate
Court. The first Appellate Court had independently confirmed the adverse
finding rendered by the trial Court against the appellant herein.
9.The learned counsel appearing for the respondents would question
the maintainability of the appeal. According to him, a second appeal will
not lie against a mere finding. The learned counsel would place reliance on
a decision of the Madras High Court reported in 2011 5 CTC 430
(Thamilarasi Vs. Selvam) which held that an appeal will lie only against a
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S.A.(MD)No.83 of 2008
decree and not against any finding recorded by the Court at the instance of
the party who succeeded in the suit. But as rightly pointed out by the
learned counsel appearing for the appellant, even though the suit was
dismissed under Order 41 Rule 22 C.P.C, the respondent in an appeal is
entitled to question any adverse finding rendered against him. In this case,
he had also filed a cross objection. The first Appellate Court, by the
impugned judgment and decree, had dismissed the appeal as well as the
cross objection. The dismissal of the cross objection would amount to
decree. Hence, the second appeal is very much maintainable.
10. Coming to the facts of the case, it is seen that the plaintiffs herein
had purchased suit schedule property vide Ex.B15, Ex.B17 and Ex.A2.
These transactions had taken place well before filing of O.S.No.349 of
1991. It is true that the appellant Chellasamy had arrayed Rosemary, the
vendor of the plaintiffs herein, as one of the defendants. But even before
O.S.No.349 of 1991, came to be instituted, Rosemary had already parted
with the suit property. It is for that reason, an observation was made by the
trial Court that the said judgment and decree cannot be said to be binding
on the plaintiffs herein. Though no specific issue was framed by the trail
Court, the first Appellate Court had framed a specific issue in that regard
and after hearing both the parties, had confirmed the finding of the trial
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S.A.(MD)No.83 of 2008
Court. The appellant cannot be said to have suffered any prejudice. The
entire evidence was available before the first Appellate Court and therefore,
the appellant cannot complain any infraction of procedure. As already
pointed out, the very framing of substantial question of law was on the
erroneous assumption that the first appellate Court after reversing the
finding rendered by the trial Court, mechanically dismissed the cross
appeal. It is not so. Since no substantial question of law has really arisen,
the second appeal is dismissed. No costs.
05.07.2021
Internet : Yes/No
Index : Yes/No
rmi
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S.A.(MD)No.83 of 2008
To
1.The Subordinate Court, Kuzhithurai.
2.The Second Additional District Munsif, Kuzhithurai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.83 of 2008
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.83 of 2008
05.07.2021
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