Madras High Court
G.Vadivel vs E.Karunan on 5 October, 2021
SA NO.825 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.10.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.825 OF 2014
AND MP NO.1 OF 2014
1.G.Vadivel
2.Amsavalli ... Appellants
VS.
1.E.Karunan
2.The Assistant Engineer
O & M, T.N.E.B.,
Rayakottai, Denkanikottah Taluk,
Krishnagiri District - 635 116. ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree of the learned Principal
District Judge, Krishnagiri dated 03.01.2013 in A.S.No.16 of 2012
reversing the judgment and decree of the learned Subordinate Judge of
Hosur, dated 23.12.2011 in O.S.No.99 of 2005.
For Appellants : Mr.J.Hariharan
for Mr.V.Nicholas
For Respondent-1 : Mr.A.K.Kumarasamy
Senior Counsel
for Mr.S.Kaithaimalaikumaran
1/18
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SA NO.825 OF 2014
JUDGMENT
Aggrieved over the reversal of the finding by the First
Appellate Court, the defendants have preferred the above Second Appeal.
2.The plaintiff/first respondent herein filed a Suit for
declaration of title and recovery of possession. According to him, the
property was originally owned by one Azizullah Khan and Shafiullah
Khan, sons of Late Hussein Khan Sahib, under the registered sale deed
dated 21.10.1985 which followed by an agreement of sale dated
05.03.1983. The plaintiff's father purchased this property and gifted it to
him by virtue of a settlement deed. Thereafter, the defendants have set up
a rival claim on the basis of an unregistered sale deed dated 20.07.1968
in favour of the first defendant. The title of the vendors of the defendants
traced to a registered WILL dated 02.10.1968. The plaintiff denied the
existence of the so called WILL as well as the unregistered sale deed
through which the defendants claimed title on the ground that the WILL
was registered at Rayakottai and the unregistered sale deed said to have
been executed at the Office of the Sub Registrar, Krishnagiri.
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SA NO.825 OF 2014
3.It is the case of the plaintiff that the properties were leased
out to the defendants for doing their business. But, without consent of the
plaintiff or his father, they altered the nature of the building and thereby
committed damages. Therefore, he prayed for declaration of title and
recovery of possession and also mesne profits.
4.In the written statement, the defendants denied all the
averments and contended that originally the Suit property belonged to
one Hussein Khan, who sold it in favour of their father on 20.07.1968.
Eversince the date of purchase by the defendants father, they were in
possession and enjoyment of the Suit property and as absolute owners,
they were enjoying the properties as per their wish. They have obtained
loan from T.I.I.C. Ltd., Dharmapuri in the year 1981 for the purpose of
running lathe machine under the name and style of M/s.Manjunatha
Engineering Industries in the said property and also obtained electricity
service connection on 08.07.1984 and are paying property tax to the
Rayakottai Panchayat. The plaintiff has created problem on the basis of
fabricated documents. Hence, he filed a Suit in O.S.No.89/1999 on the
file of District Munsif Court, Denkanikottah. After contest, the Suit was
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SA NO.825 OF 2014
dismissed on 07.08.2001 on erroneous grounds against which, he filed an
appeal in A.S.No.28/2001. In the appeal, the respondents therein, namely
Elangovan and Karunan filed I.A.No.28/2002 for reception of additional
evidence. The Appellate Court, had set aside the decree and judgment
dated 07.08.2001 in O.S.No.89/1999 and remanded the matter for
framing issues and deciding the case afresh and dispose of the same
within a period of three months. Against the remand order, the
defendants have preferred an appeal in CMA No.1530/2004, in which,
this Court has granted interim stay on 05.05.2004. In the meantime, the
Suit in O.S.No.89/1999 was dismissed for default on 20.04.2004.
Therefore, the contention of the plaintiff as absolute owner on the basis
of the gift deed executed by his father on 02.07.1997 is false. The father
of the plaintiff himself is not entitled to the property. The description of
the property and the linear measurements were wrongly given and they
were not rectified in the sale deed. Therefore, in the absence of property
description, the contention of the plaintiff as to the alteration of the
property is not sustainable and only because the sale deed was not
registered, it cannot be declared as void and non-est for the purchase
made for a valid sale consideration of Rs.90/- at that point of time. Even
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SA NO.825 OF 2014
the leasing out by the plaintiff's father was also denied and the Suit was
sought to be dismissed.
5.The Trial Court framed appropriate issues and dismissed
the Suit holding that the plaintiff has not proved his title. Aggrieved over
the same, the plaintiff has preferred an appeal in A.S.No.16/2012. In the
said appeal, the present appellants herein remained exparte. During the
pendency of the appeal, the first respondent / plaintiff filed an application
under Order 41 Rule 27 CPC for receiving additional documents. The
First Appellate Court received the additional documents and allowed the
appeal relying on the said additional evidence. Aggrieved over the same,
the appellants/defendants have preferred the above Second Appeal.
6.The Second Appeal was admitted on 15.03.2019 on the
following substantial questions of law:-
"1.Whether the lower Appellate Court is correct in
reversing the judgment of the trial Court without
considering the admission is best piece of evidence and as
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SA NO.825 OF 2014
such, there is perversity in upholding the claim of the
plaintiff.
2.When the extent and description of the suit
property are different in the property described in the
agreement of sale of the year 1983, the sale deed of the
year 1985 and gift deed of the year 1997 relied on by the
plaintiff whether the lower appellate Court is correct in
granting the decree contrary to the evidence of the
plaintiff himself."
7.The learned counsel for the appellants relied on a
judgment of the Hon'ble Supreme Court in CORPORATION OF
MADRAS AND ANOTHER VS. M.PARTHASARATHY AND
OTHERS [2018 (8) MLJ 208 (SC)] in support of his contention that
while receiving the additional piece of evidence, the First Appellate
Court shall provide an opportunity to the respondents, to file un-
rebuttable evidence to counter the additional evidence adduced by the
appellants in the first appeal. If such opportunity is not afforded, it will
prejudice the party contesting the appeal and that adverse order passed by
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SA NO.825 OF 2014
the Appellate Court does not conform to Order 41 Rules 23 to 25 CPC.
In the said judgment, the Hon'ble Supreme Court has observed as under:
"17. Having allowed the CMP No.1559/1993 and,
in our opinion rightly, the first Appellate Court had two
options, first it could have either set aside the entire
judgment / decree of the Trial Court by taking recourse to
the provisions of Order 41 Rule 23-A of the Code and
remanded the case to the Trial Court for re-trial in the
suits so as to enable the parties to adduce oral evidence to
prove the additional evidence in accordance with law or
second, it had an option to invoke powers under Order 41
Rule 25 of the Code by retaining the appeals to itself and
remitting the case to the Trial Court for limited trial on
particular issues arising in the case in the light of
additional evidence which was taken on record and invite
findings of the Trial Court on such limited issues to
enable the first Appellate Court to decide the appeals on
merits.
18. The first Appellate Court failed to take note of
both the above mentioned provisions and proceeded to
allow it wrongly.
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19. Due to these two jurisdictional errors
committed by the First Appellate Court causing prejudice
to the appellants herein while opposing the first appeals,
the judgment rendered by the first Appellate Court, in our
opinion, cannot be sustained legally on merits."
8.Therefore, when the First Appellate Court received
Exs.A18 to A26, no opportunity was provided to the appellants and that
the First Appellate Court has failed to adhere to the procedure laid down
under Order 41 Rule 25 CPC. The documents were not subjected to any
proof and an opportunity to rebut the documents was not afforded. When
the additional documents were received for the purpose of proving the
documents, the First Appellate Court either should have set aside the
judgment in its entirety and remanded the matter to the Trial Court for
fresh evidence or while retaining the appeal, should have remitted the
matter to the Trial Court to give its finding on the basis of the particular
additional documents received. The First Appellate Court has failed to
adopt either of the courses and therefore, the judgment of the First
Appellate Court is liable to be set aside and the matter has to be
remanded for giving opportunity to the respondents to rebut the
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SA NO.825 OF 2014
admissibility of the documents.
9.On the other hand, the learned Senior Counsel appearing
for the respondents would rely on Rule 2A of Order 12 CPC. According
to him, the appellants herein were put on notice and the Memorandum of
appeal was served on them, but they failed to appear before the First
Appellate Court. On the other hand, the respondent, who was present and
contested the appeal, had expressed no objection and the documents were
admitted and relied on by the First Appellate Court. As per Rule 2A
Order 12 CPC, when a party is called upon to admit and he does not deny
it specifically or by necessary implications, it is deemed to have been
admitted. In the absence of any objection specifically in writing or by
deemed implication by the appellants herein, the documents were rightly
received in evidence and admitted by the First Appellate Court, while
deciding the appeal, particularly when the third respondent, who was
contesting the appeal had no objection for admitting the documents. It is
not necessary that the First Appellate Court has to direct the plaintiff to
prove the said documents. Proviso to Rule 2A specifically states that the
First Appellate Court at its discretion and for the reasons recorded
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required any documents so admitted to prove otherwise by such time. In
the instant case, no such contingency arose for directing proof of such
documents. Therefore, a person who absented himself throughout the
appeal is not entitled to raise such an objection and therefore, the
contention cannot be accepted and the Second Appeal is liable to be
rejected.
10.I have heard the submissions of both sides.
11.Admittedly, there were two rival Suits by both the sides.
First Suit was filed by the appellants herein in O.S.No.89/1999 on the file
of District Munsif Court, Denkanikottai, for the relief of declaration of
title and injunction restraining the present respondent from interfering
with his possession. He relied on an unregistered sale deed dated
20.07.1968 which was pursuant to one registered WILL dated
02.10.1968. The Trial Court dismissed the Suit holding that the plaintiff
has not proved his title. On appeal, the respondents have filed certain
additional documents and the matter was remitted back to the Trial Court
and it was dismissed for default on 20.04.2004. In the meanwhile, the
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appellants herein have preferred an appeal and it is submitted that this
Court by its order, has set aside the order of remand and directed the Sub
Court to decide the appeal on merits. The said appeal was dismissed on
23.12.2011.
12.It is also to be noted that the first respondent herein has
filed a Suit for declaration of title and for recovery of possession in
O.S.No.99/2005 on 05.10.2005 which is the subject matter of the present
appeal and the same was dismissed on the very same day i.e., 23.12.2011
on which date, A.S.No.28/2001 was dismissed.
13.The crucial question which arise for consideration in this
appeal is as to what is the effect of the decision rendered in
A.S.No.28/2001 and the admission of those documents without proof as
contemplated under Order 41 Rule 28 CPC. The learned counsel was
heard to say that whether or not the declaration of title is granted that will
not automatically entitle the defendants for declaration of title. Therefore,
the decision made in A.S.No.28/2001 in respect of the very same subject
matter between the very same parties will not operate as res-judicata.
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The plaintiff shall rely on his case on its own strength and any decision
rendered in the other litigation will not confer title on the other party. In
so far as that question is concerned, in the previous round of litigation,
the case of the plaintiff is that the appellants father became the title
holder on the basis of the unregistered sale deed dated 20.07.1968. That
unregistered sale deed was not admitted and the title was denied against
the appellants. In the very same Suit, the Trial Court has also refused to
accept the case projected by the respondents herein and held that the
respondents are not entitled to ownership of the property. The First
Appellate Court has confirmed the findings with respect to the dismissal
of the Suit against the present appellants. There is no appeal as against
the first appeal in A.S.No.28/2001 dated 23.12.2011. Therefore, it is
clear that the judgment and decree with respect to the title of the property
has attained finality and the appellants herein are not entitled to the title
to the property. What remains to be decided is whether they are entitled
to possession or not? Admittedly, when the title is denied, then they need
to be treated either as lessee or as trespassers.
14.In so far as the question with regard to the reliance placed
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by the First Appellate Court on the additional documents received under
Order 41 Rule 27 CPC is concerned, the documents which were marked
as Exs.A18 to A26 were the documents, which were marked exhibits in
O.S.No.89/1999 as Exs.B1 and B5. The additional documents were
certified copies of the documents marked before the Trial Court in
O.S.No.89/1999.
15.Be that as it may, as far as the procedure contemplated
under Order 41 Rule 28 CPC is concerned, once the Appellate Court
receives the additional documents in evidence, it shall direct the parties
to let in evidence, whether in the very same Court or to the Subordinate
Court, who passed the decree to take such evidence and send back or to
set aside the entire judgment and decree and remanded the matter back.
16.It is relevant to note that Rule 2A of Order 12 CPC
specifies procedure with regard to the documents which were deemed to
be admitted. Order 12 CPC deals with a situation whether the parties
admits the truth of a holder or any part of the case of any other party. In
such circumstances, when a party gives a notice calling upon the other
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SA NO.825 OF 2014
party to admit the documents and if it is not specifically denied by
necessary implications, it is deemed to be admitted. Rule 2A may not
have an application to the case on the circumstances which fall under
Order 41 Rule 27 CPC.
17.In this case, the documents which were received as
additional evidence, the course to be adopted is that the documents have
to be proved by adducing evidence by the party who files the petition
under Order 41 Rule 27 CPC. But the fact remains that the documents
which were received as additional evidence are the documents which
were proved in the previous Suit is between the same parties with respect
to the very same subject matter.
18.Be that as it may, the appellants remained exparte and did
not participate in the appeal till the appeal was decided against them.
Whereas the third respondent contested the Suit and he has recorded no
objection for admitting the said documents. In effect, the contesting party
admits the documents. In the considered opinion of this Court, it deems
to have been admitted and further evidence is not required. More
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particularly, these documents were pleaded and proved in the previous
round of litigation in O.S.No.89/1999. A party who failed to appear and
prosecute the appeal and failed to object the admission of these
documents, cannot have a say, that the procedure laid down by law under
Order 41 Rule 27 CPC is not followed. The Court either suo motu or on
application can call for the documents in the previous round of litigation,
it is a record of the Court and take a possession. It is not that the
appellants were taken by surprise or new documents or new case is
projected by the respondents. Having failed to prosecute the appeal
diligently, the appellants are precluded from raising such an issue in the
Second Appeal.
19.Even though the Second Appeal was not admitted on this
above question of law, the Court holds that the issue raised by the
appellants is not sustainable in the Second Appeal. In so far as the
questions of law on which the Second Appeal is admitted is concerned, it
is based on pure question of facts. The description of property as found
in the agreement of sale and the sale deed is not a substantial question of
law and therefore, it is answered against the appellants. It is the look out
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SA NO.825 OF 2014
of the respondents to face the issue before the Execution Court. It is not
the case that the appellants were presented the appeal and they were
deprived of the opportunity to rebut the proof that they were absent.
Therefore, they cannot raise the issue at this belated stage.
20.In fine, the questions of law are answered against the
appellants and the Second Appeal stands dismissed. No costs.
05.10.2021
Index : Yes/No
Internet : Yes/No
TK
Note : Issue order copy on 20.05.2022
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SA NO.825 OF 2014
To
1.The Principal District Judge
Principal District Court
Krishnagiri.
2.The Subordinate Judge
Subordinate Court
Hosur.
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SA NO.825 OF 2014
M.GOVINDARAJ, J.
TK
SA NO.825 OF 2014
05.10.2021
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