Saroja vs K.Janarthanan
2021 Latest Caselaw 14265 Mad

                                                                            S.A.No.144 of 2019



                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              Dated : 16.07.2021

                                                  CORAM:

                                THE HONOURABLE Mr.JUSTICE M.SUNDAR

                                             S.A.No.144 of 2019

                 1. Saroja
                    W/o.Late Govindan

                 2. Prabavathi
                    D/o.Late Govindan

                 3. Sangeetha
                    D/o.Late Govindan

                 4. Kumaresan
                    S/o.Late Govindan

                 5. Thambidurai
                    S/o.Late Govindan                                       ... Appellants

                                                     Vs.

                 K.Janarthanan
                 S/o.Krishnan                                         ... Respondent

                 Prayer:
                          Second Appeal has been filed under Section 100 of Code of Civil
                 Procedure, 1908, praying to set aside the Judgment and Decree of the
                 Principal District Judge of Krishnagiri dated 16.02.2018 in A.S.No.63 of


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                                                                                    S.A.No.144 of 2019



                 2017 reversing the judgment and decree of the learned Principal Subordinate
                 Judge of Krishnagiri dated 28.03.2017 in O.S.No.142 of 2011.
                                For Appellants     :      Mr.J.Hariharan
                                For Respondent     :      Mr.A.Purushothaman
                                                         ***

                                                JUDGMENT

In about four months from now, the age of the lis which has led to the

captioned second appeal will be one decade. To put it differently, the lis that

has led to the captioned second appeal will become a ten year old lis in

November of 2021 (in about four months from now) as a plaint was

presented by the five appellants before this second appeal Court [hereinafter

'plaintiffs' for the sake of convenience and clarity] on 30.11.2011. This plaint

was taken on file as O.S.No.142 of 2011 on the file of the 'Principal

Subordinate Judge's Court, Krishnagiri' [hereinafter 'trial Court' for the sake

of convenience and clarity]

2. Factual matrix in a nutshell containing essential facts imperative for

appreciating this judgment are simple and straight forward i.e., essential facts

sans not so necessary particulars and details are that the defendant [to be

noted, sole defendant in the trial Court is the lone respondent in the captioned

second appeal in this second appeal Court and therefore, the 'lone respondent'

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in the captioned second appeal from hereon and henceforth, in this judgment,

shall be referred to as 'defendant' for the sake of convenience and clarity]

purchased a 'house property being D.No.535, M.I.G., II Phase, T.N.H.B.,

Krishnagiri' [hereinafter 'suit property' for the sake of convenience and

clairty] from the husband of the first plaintiff and father of plaintiffs 2 to 5

one K.Govindan vide a registered sale deed dated 16.07.2010 [Ex.A1] duly

registered in the jurisdictional sub-registrar's office; that the total sale

consideration is Rs.22 Lakhs; that the core of dispute/lis is, while it is

plaintiffs' case that out of the total sale consideration only Rs.20 Lakhs was

paid and the balance Rs.2 Lakhs remains though the sale deed was executed

and possession of the suit property was given to the defendant, per contra,

the defendant's case is there is no balance qua sale consideration and

defendant's stated position is entire sale consideration of Rs.22 Lakhs has

been paid; that according to plaintiffs on the same day of the registered sale

deed Ex.A1 i.e., 16.07.2010 a consent agreement was executed between late

Govindan and defendant (Ex.A9) which was (without any disputation)

drafted by the same scribe who wrote Ex.A1 with the same set of witnesses

as in Ex.A1, this consent agreement is Ex.A9 and the same clearly establishes

that there is balance of Rs.2 Lakhs, a cheque dated 20.09.2010 (Ex.A2) had

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been given towards this balance sale consideration; that there was a request

to present this cheque later but Govindan unfortunately died on 15.11.2010;

that the defendant in the written statement disputed Ex.A9 and denied the

execution of Ex.A9; that issues were framed by trial Court i.e., two issues,

parties went to trial on these two issues and after full contest, the trial Court

inter-alia believing Ex.A9 on the basis of/appreciation of oral and

documentary evidence before it, decreed the suit for Rs.2 Lakhs with interest

in and by judgment/ decree dated 28.03.2017; that the lone defendant carried

the matter in appeal by way of a regular first appeal under Section 96 of 'The

Code of Civil Procedure, 1908' [hereinafter 'CPC' for the sake of brevity] vide

AS.No.142 of 2011 on the file of 'Principal District Judge's Court,

Krishnagiri' [hereinafter 'First Appellate Court' for the sake of convenience

and clarity] and the First Appellate Court after full contest allowed the

defendant's appeal in and by judgment/decree dated 16.02.2018 inter-alia by

placing reliance on Sections 91 & 92 of the 'Indian Evidence Act, 1872 (1 of

1872)' [hereinafter 'Evidence Act' for the sake of convenience and clarity]

vide Ex.A1 sale deed and recitals therein; that as a sequitur/consequence of

judgment/decree of the First Appellate Court, plaintiffs stood non-suited and

non-suited plaintiffs are now before this second appeal Court vide captioned

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second appeal.

3. When the captioned second appeal first came up before this Court

(before Predecessor Hon'ble Judge) on 04.02.2019, notice returnable by

18.02.2019 was ordered and private notice was permitted. Defendant was

duly served and defendant has entered appearance through counsel. In the

light of this trajectory, captioned second appeal is listed before this Court

under the cause list caption 'NOTICE OF MOTION' today.

4. Today, Mr.J.Hariharan, learned counsel for plaintiffs (appellants in

the captioned second appeal in the second appeal Court) and

Mr.A.Purushothaman, learned counsel representing the counsel on record for

lone defendant (respondent in the captioned second appeal) are before this

Virtual Court.

5. Both the aforementioned learned counsel agreed that the main

captioned second appeal can be taken up, heard out and disposed of.

6. In the light of the narrative thus far supra, this Court is of the

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considered view that a substantial question of law does arise and both learned

counsel agreed that the captioned second appeal can be heard out on one

substantial question of law and that is substantial question of law proposed

by appellants in sub-paragraph (a) of paragraph No.14 of the memorandum

of grounds of appeal, which reads as follows:

'a) When the consent agreement executed by the defendant clearly recites that the defendant is liable to pay a sum of Rs.2,00,000 towards the sale transaction and as such the evidence given by the defendant contradicting its term is against the principles of law under Sections 91 and 92 of the Indian Evidence Act whether the judgment and decree of the lower appellate court in this regard are not perverse?'

7. Second appeal is admitted on the aforementioned substantial

question of law and by consent, as mentioned supra, the main second appeal

was heard out.

8. A summation of submissions by learned counsel for plaintiffs is as

follows:

(a) Defendant in his pleadings i.e., written statement,

having flatly denied execution of Ex.A9, had subsequently

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deposed as D.W.1 and in the cross-examination on 01.09.2016

in the trial Court D.W.1 admitted execution of Ex.A9. This

by itself makes the plaintiffs entitled to a decree as there

cannot be any better evidence than admission of defendant.

9. A summation of response submissions of learned counsel for

defendant is as follows:

(a) Ex.A1 sale deed is a registered document, recitals

therein cannot be dislodged by oral evidence in the light of

Sections 91 & 92 of Evidence Act. It is the specific say of

learned counsel that the recitals in Ex.A1 cannot be disputed

and therefore, it cannot but be concluded that entire sale

consideration of Rs.22 Lakhs had been paid.

(b) Ex.A9 was given only for income tax purposes by the

defendant and Income Tax Official one Ganga, who deposed as

D.W.4 in the trial Court, has deposed that the plaintiffs'

predecessor Late Govindan had not paid income tax after

16.07.2010.

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10. By way of reply submission, learned counsel for plaintiffs

reiterated his argument that lone defendant deposed as D.W.1 and he has

categorically admitted the execution of Ex.A9.

11. This Court now embarks upon the exercise of discussing the rival

submissions in the light of arguments of two learned counsel, on the basis of

case file placed before this Court and this Court proceeds to give its

dispositive reasoning.

12. A careful perusal of rival submissions and case file placed before

this Court, more particularly, judgments and decrees of trial Court, First

Appellate Court, Ex.A1, Ex.A9 and deposition of defendant, who deposed as

D.W.1, makes the task of answering the aforementioned substantial question

of law fairly simple.

13. A careful perusal of pleadings of defendant in the trial Court brings

to light that in the written statement dated 17.06.2012, the defendant has

flatly and squarely disputed Ex.A9 and denied the execution of Ex.A9.

Relevant portion of pleadings in the written statement reads as follows:

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'.............fpiuak; bgUk; rikaj;jpy; gpujpthjp xU xg;g[jy; xg;ge;jg;gj;jpuk; U:/2.00.000-?f;F nfhtpe;jDf;F vGjp bfhLj;jhh; vd;Wk;. mjDld; xU fhnrhiya[k; nfhtpe;jd; bgaUf;F vGjp bfhLj;jhh; vd;Wk;. mg;nghJ gpujpthjp TWk;nghJ fhnrhiyia U:/2.00.000-?f;F t';fpapy; jhf;fy; bra;jhy; nghJk; vd;W gpujpthjp nfhtpe;jdplk; Twpdhh; vd;gJ Rj;j bgha;/////////////////////'

14. To be noted, written statement of defendant dated 17.06.2012 has

been verified and signed by sole defendant. This sole defendant, as already

alluded to supra, examined himself as D.W.1 i.e., deposed as D.W.1 before

the trial Court. In the deposition, defendant has categorically admitted

execution of Ex.A9, defendant has also, on being confronted with Ex.A9

admitted that the signature in Ex.A9 is his signature. Relevant portion of

deposition of D.W.1 reads as follows:

'.............16/7/2010 md;W fpuak; bra;ag;gl;lJ/ vf;!;gpl;/V/9jhd; me;j Mtzk; vd;why; rhpjhd;/ vf;!;gpl;/V/9y; cs;s ifbaGj;J vd;DilaJjhd;/ fpuak; Vw;gl;ljh md;Wnjjp jhd;

fpuak; Vw;gLj;jgl;lJ/////////////////////'

15. This takes us to how the trial Court has dealt with this Ex.A9. This

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is contained in answer to issue No.1 and more particularly in internal page

No.5 of the judgment of trial Court (running page No.13 of the paper book

before this Court). Before this Court extracts and reproduces the same, it is

deemed appropriate to extract and reproduce the two issues framed by trial

Court and the same read as follows:

'Based on the above pleadings, the following issues were framed for determination:

1. Whether the plaintiffs are entitled for Rs.2,00,000/- with interest at the rate of 12% per annum on it as prayed for?

2. To what relief, the plaintiffs are entitled?'

16. In answering Issue No.1, as mentioned supra in internal Page No.5

of judgment of trial Court (running page No.13 of paper book before this

Court) the trial Court has extracted the relevant portion of deposition of

defendant who deposed as D.W.1, discussed Ex.A9, appreciated the same

and has also noticed that a cheque (Ex.A2) has been issued by defendant and

on appreciation of such evidence articulated its finding which reads as

follows:

'DW1 Janarthanan has stated during his cross examination:

"vf;!;gpl; V9 Mtzj;jpy; ehd; nfhtpe;jdplk; fpuak;

bgw;w tPl;ow;F 2 yl;rk; ghf;fp brYj;j ntz;Lk; vd;W

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vGjg;gl;Ls;sJ vd;why; rhpjhd;/ nfhtpe;jd; cila Mol;lh; brf;fhf bfhLj;jhy; ,d;fk; nlf;!; fl;l ntz;o tUk; mjdhy; kPjKs;s 2 yl;rj;jpw;F mf;hpbkz;l; nghl;Lf; bfhs;S';fs; vd;W brhd;dhh; mjdhy;jhd; mf;hpbkz;L nghl;Lf; bfhz;nlhk;/ ,d;fk; nlf;!; fl;l ntz;Lk; vd;gjw;fhfjhd; ,e;j mf;hpbkz;l; nghlg;gl;lJ/ vf;!;gpl;/V9y; ehd; 2 yl;rk; brYj;j ntz;oajw;fhf fhnrhiy vz;/323694 bfhLf;fg;gl;Lssjhf vGjg;gl;Ls;sJ vd;why; rhpjhd;/ brf; bfhLj;jhy; jhd; mf;hpbkz;l; nghLntd; vd;W brhy;yptpl;lhh;/ vf;!;gpl;/V1 fpua gj;jpuk; jhd; gjpt[ bra;ag;gl;lJ/ mjd; gpd;dh;jhd; vf;!;gpl;/V9 vGjg;gl;lJ/"

Thereby, it is evident that, Ex.A9 was executed after the execution of sale deed dated 16.07.2010. Further, if the cheque was given only for income tax purpose, then the defendant ought to have requested the said Govindan to return the cheque. But, the defendant had not approached the plaintiff to return the cheque. When questioned with regard to this, DW1 has stated:

"vf;!;gpl; V9 Mtzj;ija[k; fhnrhiya[k; nfhtpe;jdplk;

brd;W jpUg;gp bfhLf;FkhW nfl;nld; vd;whh; mth; 2 khjj;jpy; ,w;eJtpl;llhh; mjdhy; nfl;ftpy;iy/ nfhtpe;jd; 15/11/2010y; ,we;Js;shh; vd;why; rhpjhd;/ 4 khj';fs; fHpj;Jjhd; ,we;Js;shh; vd;why; rhpjhd;/ me;j 4 khjj;jpy; eh;d mf;hpbkz;ilnah brf;ifnah fhnrhiyianah jpUg;gp nfl;ftpy;iy vd;whhy; rhpjhd;/"

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The defendant had not requested the plaintiff to return the cheque in spite of the sufficient time of 4 months was available to him. This attitude of the defendant goes to prove that, the defendant is not uttering truth. Further, the defendant has also admitted that, the advance sale consideration was given only by his father and he does not know the date of the amount given. The defendant has stated that, on 12.04.2010, his father had given Rs.9,10,000/- and had received the receipt for the same on 12.4.2010. This receipt has not been filed by the defendant. Thereby, the defendant has not produced the cash receipts for having settled the entire sale consideration of Rs.22,00,000/- the defendant has also admitted that, excepting the amounts mentioned in the chief evidence, the defendant has not paid any other amount to the plaintiff. The defendant has not produced cogent and convincing evidence to substantiate that, he had paid Rs.22,00,000/- to the plaintiff.

DW2 Krishnan who is the father of the defendant has stated during his cross examination:

"fpiua gj;jpuk; vGJk;nghJ ehd; cld; ,Ue;njd;/

ehd; cld; ,Ue;jjw;fhf me;j gj;jpuj;jpy; rhl;rp ifbaGj;J vJt[k; nghltpy;iy/ me;j kWj;j gpwFjhd; vd;Dila kfd; Kjy; thjpapd; fzth; bgahpy; U:/2.00.000/- brf;F bfhLj;jhh;/ me;j U:/2.00.000-? brf;F bfhLj;jjw;fhf xU Kr;rpypf;fh vGjg;gl;lJ/ me;j Kr;rpypf;fhit vd;dplk; goj;J fhz;gpj;jhh;fs;/ me;j Kr;rpypf;fhtpy; me;j tUkhdthp brYj;Jtjw;fhfjhd; me;j

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2.00.000-? fhnrhiy vGjg;gltpy;iy/ me;j Kr;rpypf;fhtpy; ghf;fp fpua bjhiff;fhf jhd; vGjg;gl;Ls;sJ/ gj;jpuk; Kjy; ngrp gjpt[ bra;ag;gl;L mjd; gpd;dh;jhd; Kr;rpypf;fh vGjg;gl;lJ/"

From the explicit admission of DW2, this Court observes that, there was a balance amount of Rs.2,00,000/- to be paid by the defendant.'

17. The first plaintiff (Wife of Late Govindan) deposed as P.W.1 and as

already alluded to supra, the sole defendant deposed as D.W.1. One

Krishnan has deposed as D.W.2 and this Court is informed that he is the

defendant's father. One Nagulan has deposed as D.W3 and this Court is

informed that he has spoken about Ex.A1 sale deed as he was present at the

time of execution of Ex.A1 sale deed. As already alluded to supra, one

Ms.Ganga deposed as D.W.4. From the case file it comes to light that she

(D.W.4) is from Income Tax Department and she has deposed inter-alia to

the effect that Late Govindan has not paid income tax after 16.07.2010.

18. In the light of the narrative thus far, as the entire lis turns heavily

on Ex.A9 which was executed on the same day as Ex.A1 with the same

scribe and attesting witnesses (there is no disputation or disagreement about

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this) and cheque for Rs.2 Lakhs (Ex.A2) having been given by defendant. In

other words lis turns heavily on appreciation of evidence and findings

returned by trial Court, particularly regarding Ex.A9 (in the light of Ex.A1)

which has already been extracted and reproduced supra.

19. Defendant, who suffered the decree in the trial Court carried the

matter in appeal by way of a regular first appeal as mentioned supra and the

First Appellate Court has allowed the appeal after full contest, but a careful

perusal of the judgment and decree of the First Appellate Court brings to light

that there is no discussion about Ex.A9 or findings returned by trial Court

regarding Ex.A9 though the First Appellate Court has noticed Ex.A9. The

First Appellate Court is also a Court of fact albeit a last Court of fact and the

First Appellate Court exercising appellate jurisdiction under Section 96 of

CPC can always look at Ex.A9 as well as deposition and give its finding. In

any event, the First Appellate Court for dislodging the judgment of the trial

Court should in exercise of powers under Section 96 of CPC articulate how

and why the findings of the trial Court is incorrect, but in the instant case

there is no discussion about Ex.A9 or deposition about the same. The

judgment of First Appellate Court proceeds solely on the basis of Ex.A1 sale

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deed and Sections 91 & 92 of Evidence Act. The other reasons given by First

Appellate Court are that issues have not been framed by trial Court. This

Court deems it appropriate to first deal with the issues framed by trial Court.

Two issues framed by the trial Court captured in paragraph No.4 of the

judgment of the trial Court has already been extracted and reproduced supra.

In the light of the rival submissions and in the light of crux and gravamen of

the lis turning on Ex.A9 and Ex.A1, this Court finds that the issues framed

by First Appellate Court are in order and the approach of the trial Court is

unexceptionable as the core controversy arising out of pivotal affirmation by

one party and denial by other party has been framed as an issue, i.e., issue

No.1. Evidence has been adduced in respect of this controversy covered by

issue No.1 on pleadings pertaining to the same. Be that as it may, First

Appellate Court having observed that the issues have not been properly

framed by the trial Court has not articulated how and why the two issues

framed by trial Court are incorrect or not proper. There is no mention about

this in the judgment of First Appellate Court. This draws the curtains on the

issues aspect of judgment of First Appellate Court.

20. This takes us to Ex.A1, Ex.A9 and Sections 91 & 92 of Evidence

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Act. The judgment of First Appellate Court which deals with Sections 91 &

92 of Evidence Act as mentioned supra and the relevant portion in this regard

contained in paragraph No.5 {internal page No.7} (running page No.25 of

paper book) reads as follows:

'The lower court has failed to consider the legal position that as per Section 91 and 92 of the Evidence Act no amount of oral evidence can be let in contrary to the recitals in the registered sale deed Ex.A1. The lower court has failed to consider that the plaintiffs are not parties to the sale deed Ex.A1 and neither they are attestors to the document nor participants in the sale proceedings. Taking into consideration above, the lower court ought to have dismiss the suit.'

21. The points for determination framed by First Appellate Court read

as follows:

'Based on the above contentions, in the lower court the following issues were framed.

1) Whether the plaintiffs are entitled Rs.2 Lakhs with interest at the rate of 12% p.a., as prayed for?

2) To what relief the plaintiffs are entitled?'

22. As already alluded to supra, the First Appellate Court has observed

that the trial Court has not framed issues properly but has not made even a

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whisper as to how and why the issues framed by trial Court are not proper

which has already been alluded to supra in this judgment. More importantly,

in this judgment supra, this Court has examined the issues and come to the

conclusion that the issues are proper and in accordance with the well settled

principles regarding framing of issues as the core controversy arising out of

pivotal affirmation by one party and denial by other party has been framed as

an issue and evidence has been adduced on the same based on pleadings

pertaining on the same. This being the case, a careful perusal of the

aforementioned points for determination (obviously in accordance with the

mandate under Order XLI Rule 31 of CPC) brings to light that the same are

akin to the issues framed by trial Court. It is well settled that the First

Appellate Court is the Court of fact albeit last Court of fact and therefore, if

the trial Court had not framed issues, the First Appellate Court can always

frame points for determination albeit based on available evidence/materials

before trial Court. All these would go to show that the comment of First

Appellate Court that the issues have not been framed properly by trial Court

is not only not supported by a shred of reason but is also incorrect and

therefore rather unwarranted.

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23. Notwithstanding the above said points for determination, as

already alluded to supra, there is no whisper about Ex.A9 in the judgment of

First Appellate Court. First Appellate Court has proceeded on Ex.A1 and oral

evidence ignoring Ex.A9 and some critical portions of the judgment of the

First Appellate Court read as follows:

'11. D.W.3 who is also supported the version of D.W.1 by stating that cheque was issued only for the purpose of income tax not for the sale consideration. D.W.4 who is the income tax official, stated that Govindhan has not paid income tax after 16.07.2010. Though it was proved that the cheque was issued by the defendant, he repeatedly stated that he issued only for the purpose of payment of income tax by the husband of the 1st defendant, as the vendor created problem by stating that if he is not issue cheque he will not register the same. The plaintiff has not proved that the defendant is due a sum of Rs.2 Lakhs from out of consideration. The plaintiff failed to prove the passing of consideration through Ex.A1 and A9. The lower court failed to consider the recitals contained in the Ex.A1 that the entire sale consideration has been received by said Govindan and passed the decree relying upon Ex.A2 and A.9 which are not supported the case of the plaintiffs that the defendant is due a sum of Rs.2 Lakhs from the sale consideration and concluded that the said cheque was issued for the remaining sale consideration. Therefore this Court is of the opinion that the cheque issued by the defendant is

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not issued for the reasons stated in the plaint. Further, plaintiff has not properly established the case. Therefore, plaintiffs are not entitled for the reliefs as prayed for hence, the suit is liable to be dismissed by allowing this appeal.'

24. Tuning to Sections 91 & 92 of Evidence Act, which is also sheet

anchor of the argument of learned counsel for defendant, this Court deems it

appropriate to remind itself about three lead case laws on this, namely,

S.Chattanatha Kurayalar Vs. Central Bank of India Ltd., & Others

reported in AIR 1965 SC 1856, State Bank of India and another Vs. Mula

Sahakari Sakhar Karkhana Ltd., reported in (2006) 6 SCC 293 and recent

judgment of Hon'ble Supreme Court in Anglo American Metallurgical Coal

Pty. Ltd., Vs. MMTC Ltd., reported in (2021) 3 SCC 308. In Chattanatha

Kurayalar case, it was made clear that the bar imposed by Section 92 of

Evidence Act, is not absolute so as to say that the terms of one document

altered by another document forming part of the same transaction is such that

no oral evidence can be let in on the altering document.

25. Thereafter, in Mulla Sahakari case, when the question as to

whether a bank guarantee being a separate contract qua main contract can be

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invoked on grounds not covered by bank guarantee, in the course of

answering this question in the negative Hon'ble Supreme Court referred to

Chattanatha Kurayalar principle.

26. In Anglo American Metallurgical Coal case law which is more

recent dealing with coal supply agreement and disputes arising out of

shipments, the legal principle that Section 92 of Evidence Act is not absolute

and is not without exception was reiterated. This case law is being referred

for this limited purpose as Anglo American Metallurgical Coal case turns

on ambiguity in terms of document which is not the case on hand.

27. In the light of the aforementioned well carved out exceptions to

Sections 91 & 92 of Evidence Act, this Court in this exercise of legal drill

under Section 100 CPC, finds that the sale transaction is constituted by three

documents namely, Ex.A1, Ex.A2 and Ex.A9, these documents and oral

evidence on the same were rightly appreciated together by trial Court. The

approach of trial Court in looking into oral evidence on Ex.A9 or Ex.A2

certainly does not tantamount to oral evidence in derogation of Ex.A1 being

let in. This leads this discussion and dispositive reasoning to an axiomatic

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dimension. It is not only axiomatic, it can also be described as converse

proposition. This Court chooses to describe this as converse proposition as

the First Appellate Court has for all practical purposes relied on oral evidence

given by defendant in derogation of Ex.A9. As already alluded to supra, the

defendant originally chooses to deny execution of Ex.A9 in the written

statement, subsequently, turns topsy turvy in oral evidence admits the

execution of Ex.A9 and lets in oral evidence to say that Ex.A9 consent

agreement was executed on the same day as Ex.A1 (registered sale deed

dated 16.07.2010). There is clear recital in Ex.A9 that the defendant is liable

to pay a sum of Rs.2 Lakhs towards sale consideration. Oral evidence was

let in to say this was executed merely for income tax purpose and cheque

(Ex.A2) was given only towards income tax purposes. In an attempt to

buttress this oral evidence, defendants also brought in D.W.4 (Ganga) whom

this Court is informed is Income Tax Official who deposed to the effect that

the plaintiff's predecessor in title Late Govindan had not paid income tax after

16.07.2010 which is the date of Ex.A1 as well as Ex.A9 consent agreement.

This means that the First Appellate Court has taken into account and relied

on oral evidence given by defendant in derogation of Ex.A9. Not construing

Ex.A1 and Ex.A9 together as they form part of same transaction on the same

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day is one violation of Sections 91 & 92 of Evidence Act qua Ex.A1.

Likewise, considering the oral evidence let in by defendant in derogation of

Ex.A9 is another facet of violation of Sections 91 & 92 of Evidence Act. This

is the reason why this Court has chosen to describe this as converse

proposition. Therefore, the First Appellate Court simply going by oral

evidence which is in derogation of Ex.A9 without discussing Ex.A9 clearly

points to only one answer qua lone substantial question of law on which the

captioned second appeal is now being heard out. In other words, this makes

the task of answering the lone substantial question of law on which the

captioned second appeal is being heard out a fairly simple exercise and the

answer will be set out infra. This means as a sequitur it cannot be gainsaid

that no exceptions to Sections 91 & 92 of Evidence Act operate and that the

recitals in Ex.A1 have to be accepted as indisputable truth. Further sequitur

to this is the approach of trial Court is unexceptionable. This coupled with

First Appellate Court interfering with and upturning the judgment and decree

of the trial Court without any discussion about Ex.A9 notwithstanding

findings returned by trial Court regarding Ex.A9 makes the task of answering

the lone substantial question of law fairly simple. The answer cannot but be

in the affirmative as the oral evidence on collateral document forming part of

http://www.judis.nic.in S.A.No.144 of 2019

same transaction that is Ex.A9 (consent agreement) is certainly relevant and

evidence given by defendant in derogation of Ex.A9 is contrary to Section 91

of Evidence Act. Reverse approach of overlooking such evidence and

proceeding on the basis that it is in derogation of Ex.A1 for disturbing the

trial Court judgment certainly does not hold water.

28. Owing to significance of Ex.A9 and owing to there being no

discussion on Ex.A9 in the judgment of the First Appellate Court, this Court

deems it appropriate to set out a scanned reproduction of Ex.A9 and the same

is shown in the next paragraph infra.

29. A scanned reproduction of Ex.A9 is as follows

http://www.judis.nic.in S.A.No.144 of 2019

http://www.judis.nic.in S.A.No.144 of 2019

http://www.judis.nic.in S.A.No.144 of 2019

30. Typed clean copy of Ex.A9 which also forms part of paper book is

also as follows:

http://www.judis.nic.in S.A.No.144 of 2019

31. In the light of the narrative, discussion and dispositive reasoning,

the answer to the lone substantial question of law on which the captioned

second appeal was heard out is in the affirmative as already set out supra. In

other words, the answer is in favour of plaintiffs i.e., appellants in the

captioned second appeal in this Court, as First Appellate Court has proceeded

on oral evidence and Ex.A1 completely ignoring Ex.A9 though Ex.A1 and

Ex.A9 form part of the same transaction. It follows that the captioned second

appeal is allowed. The consequence would be judgment and decree dated

16.02.2018 in A.S.No.63 of 2017 on the file of the Principal District Court,

Krishnagiri, is set aside and as a further consequence, judgment and decree of

trial Court dated 28.03.2017 in O.S.No.142 of 2011 is resuscitated and

restored.

32. Captioned Second Appeal is allowed. In the light of the nature of

matter and nature of submissions that were made before this Virtual Court,

there shall be no order as to costs.

16.07.2021 Speaking order: Yes/No Index: Yes/No Internet : Yes/No mk

http://www.judis.nic.in S.A.No.144 of 2019

M.SUNDAR.J.,

mk

To

1. The Principal District Judge Principal District Court Krishnagiri.

2. The Principal Subordinate Judge Principal Subordinate Court, Krishnagiri.

S.A.No.144 of 2019

16.07.2021

http://www.judis.nic.in