Madras High Court
Palanivelu vs Sinnaponnu (Died) on 5 April, 2022
S.A.No. 421 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.421 of 2013
Narayanasamy (Died)
Kullammal (Died)
1. Palanivelu
2. Panneerselvam
3. Masilamani
4. Poongothai
5. Valarmathi .... Appellants
Vs
1. Sinnaponnu (Died)
2. Subramani
3. Mani
4. Rajendran
5. Segar @ Gunasekaran
(RR2 to 5 brought on record as LRs
of the deceased sole respondent viz.,
Sinnaponnu vide order of Court dated
12.11.2019 made in CMP No.15867,
15868 & 15869 of 2019 in S.A.No.421/2013) .... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 29.11.2011 in A.S.No.15 of 2010 on the
file of the Principal Sub Court at Pondicherry and reversing the Judgment
and Decree dated 27.10.1999 in O.S.No.941 of 1983 on the file of the
I Additional District Munsif at Pondicherry.
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S.A.No. 421 of 2013
For Appellants : Mr.V. Anandhamoorthy
For Respondents : Mr.V.P.Chamuraj for Mr.A.Gandhi Raj
JUDGMENT
The plaintiffs are the appellants in this second appeal.
2. The case of the plaintiffs is that they are the owners of the suit
property by virtue of a registered sale deed dated 22.08.1977, marked as
Ex.A4. The property was leased in favour of the defendant and a lease
deed was also entered into in this regard on 13.02.1978. According to
the plaintiffs, the period of lease was for three years. The grievance of
the plaintiffs is that the defendant failed to pay the lease amount from the
year 1979 onwards and hence, a legal notice was issued on 27.08.1983,
calling upon the defendant to vacate and hand over the possession of the
property. Inspite of receipt of the notice, the defendant did not act upon
the same. That apart, the defendant also attempted to cause a cloud over
the title of the plaintiffs. Hence, the suit was filed seeking for the relief
of declaration of title and possession and also for a direction to the
defendant to pay arrears of rent from the year 1979 onwards.
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S.A.No. 421 of 2013
3. The defendant filed a written statement. Initially, the defendant
took a stand that she is not a tenant under the plaintiffs and there is no
landlord and tenant relationship between the parties. Thereafter, the
defendant took a stand that the suit has not been properly valued and that
the suit is barred by limitation and sought for protection under the
Pondicherry Non-Agriculture Kudiyiruppudars (stay or eviction
proceedings) (Amendment) Act, 1983. The defendant also raised the
plea of adverse possession. Accordingly, the defendant sought for the
dismissal of the suit.
4. The Trial Court, on considering the facts and circumstances of
the case, framed the following issues :-
1. Whether the suit has been properly valued and
correct court fee has been paid by the plaintiffs ?
2. Whether this Court has got pecuniary jurisdiction
to try the suit since the value of the suit property exceeds the
pecuniary jurisdiction this Court as pleaded by the defendant
?
3. Whether the plaintiffs are the absolute owners of
the suit property ?
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S.A.No. 421 of 2013
4. Whether the plaintiffs are entitled to recover
vacant possession of the suit property from the defendants ?
5. Whether the plaintiffs are entitled to recover
arrears of rent from the defendant from the month of June
1979 ?
6. Whether the plaintiffs are entitled to a Judgment
and decree as prayed by them ?
The Trial Court also framed the following additional issue :-
Whether the suit is hit by res-judicate ?
5. The Trial Court thereafter, on appreciation of oral and
documentary evidence, found that the plaintiffs has made out a case and
decreed the suit insofar as the relief of declaration of title and possession
is concerned. Insofar as the rent that was claimed by the plaintiffs, the
same was rejected. Aggrieved by the same, the defendant filed an appeal
before the Principal Subordinate Judge at Pondicherry in A.S.No.15 of
2010. The lower Appellate Court, through a Judgment and Decree dated
29.11.2011, allowed the appeal and set aside the Judgment and Decree of
the Trial Court and consequently the suit was dismissed. Aggrieved by
the same, the plaintiffs have filed this second appeal.
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S.A.No. 421 of 2013
6. When the second appeal was admitted, the following
substantial questions of law were framed by this Court :-
“a) Whether the decision of the first Appellate Court
is vitiated for non-consideration of the entire oral and
documentary evidence while reversing the findings of the
Trial Court when there are documentary to prove the title of
the plaintiff ?
b) Whether the first Appellate Court under Section 96
of Civil Procedure Code being the final Court of fact is duty
bound to give reasons to take different view than one taken
by the Trial Court or not ?
c) Whether the first Appellate Court is correct in
deciding the issue of adverse possession especially the
defendant failed to plead and establish the fact of adverse
possession as held in Karnataka Board of Wakf v.
Government of India and Ors (2004) 10 SCC 779 ?”
7. Heard, Mr.V.Anandhamoorthy, learned counsel for the
appellants and Mr.V.P.Chamuraj, learned counsel for the respondents.
This Court carefully considered the materials placed on record and the
findings rendered by both the Courts below.
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S.A.No. 421 of 2013
8. Before this Court ventures to deal with the Judgment of the
Appellate Court, it is seen from the records that the suit was instituted in
the year 1983 and the Trial Court decreed the suit through a Judgment
and Decree dated 27.10.1999. Aggrieved by the same, the defendant
filed an appeal in A.S.No.11 of 2000. Since the suit was dismissed
insofar as the plaintiffs 3, 5, 6 and 7 are concerned, they filed a separate
appeal in A.S.No.99 of 2000. Both the appeals were taken up together
and the Additional District Judge at Pondicherrry, through Judgment and
Decree dated 31.01.2002, allowed both the appeals and the matter was
remanded back to the file of the Trial Court under Order 41 Rule 23A of
CPC. Hence, the matter was once again taken up by the Trial Court and
after yet another round, it came to the file of this Court in the second
appeal in the year 2013 and the second appeal is taken up for hearing in
the year 2022. The case has been pending for the last 39 years.
9. The Trial Court had given elaborate findings for every issue
that was framed and ultimately granted the relief of declaration of title
and possession in favour of the plaintiffs. When the matter was taken up
for appeal by the Principal Subordinate Judge, Pondicherry, the lower
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S.A.No. 421 of 2013
Appellate Court was supposed to follow the mandate under Section 96 of
CPC. Since, the lower Appellate Court is the last Court of facts, it is
expected to re-appreciate the oral and documentary evidence and consider
the findings of the Trial Court. If the lower Appellate Court defers with
the findings of the Trial Court, the lower Appellate Court is mandated to
spell out the reason and discuss the point as to why it is disagreeing with
the findings of the Trial Court. It will be relevant to take note of the
lastest Judgment of the Supreme Court in this regard in K.Karupparaj
Vs. M. Ganesan reported in 2022 (1) CTC 674.
10. This Court is thoroughly disappointed with the manner in
which the lower Appellate Court has dealt with the appeal. The lower
Appellate Court has virtually gone on a tangent and has not even
considered a single finding given by the Trial Court or assigned any
reason as to why it is disagreeing with the findings of the Trial Court.
The lower Appellate Court ought to have kept in mind that the matter is
coming up on appeal for the second round, since during the earlier
occasion, the matter was remanded back to the file of the Trial Court.
The lower Appellate Court has virtually dealt with the appeal in a
slipshod manner and the Principal Subordinate Judge, has forgotten to
apply even the rudimentary principles while deciding the appeal. It is
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S.A.No. 421 of 2013
quite unfortunate that this Court has to once again remand the matter
back to the lower Appellate Court since this Court, exercising its
jurisdiction under Section 100 of CPC, cannot undertake the exercise of
re-appreciating the evidence and dealing with the findings of the Trial
Court. When it comes to dealing with the findings, this Court, in second
appeal can only test if the findings suffer from any perversity.
11. The lower Appellate Court, being the final Court of fact, failed
in its duty by not giving reasons to take a different view than the one
taken by the Trial Court. The Judgment of the lower Appellate Court is
liable to be interfered with on this ground alone. The second substantial
question of law is answered accordingly.
12. There is no requirement to give an answer to the first and
third substantial questions of law, since it goes into the merits of the case
and this Court does not want to give any findings. Since the matter is
remanded back to the file of the lower Appellate Court, any findings on
merits will have a bearing.
13. In the result, the Judgment and Decree of the lower Appellate
Court made in A.S.No.15 of 2010, dated 29.11.2011, is hereby set aside
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S.A.No. 421 of 2013
and the matter is remanded back to the file of the Principal Subordinate
Judge at Puducherry. The learned Principal Subordinate Judge, is
directed to hear the appeal afresh on merits and the final Judgment shall
be delivered on or before 15.07.2022. The lower Appellate Court is
expected to strictly comply with the provisions of CPC, while dealing
with the appeal. The lower Appellate Court shall report compliance after
passing the final Judgment.
14. Accordingly, the second appeal is allowed in the above terms.
Considering the facts and circumstances of the case, there will be no
order as to costs.
05.04.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The Principal Subordinate Judge, Pondicherry
2.The I Additional District Munsif, Pondicherry
N. ANAND VENKATESH, J.
Lpp
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S.A.No. 421 of 2013
S.A.No.421 of 2013
05.04.2022
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