Ravi vs Gangadharan (Died)
2022 Latest Caselaw 7565 Mad

                                                                                    S.A.No.542 of 2012

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            Dated : 11.04.2022

                                                      Coram:

                                  THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH

                                            Second Appeal No.542 of 2012

              1.Ravi
              2.Saravanan
              3.Arumugam
              4.Pankajam                        ..Appellants/Respondents 1 to 4/Defendants 1 to 4


                                                        .Vs.
              1.Gangadharan (died)

              2.Venkatesan

               (No relief has sought against the
                2nd Respondent and he is not
                aggrieved party, hence we given up
                the 2nd respondent)

              3.Svithri

              4.Mohanammal

              5.Thenmozhi

              6.Bhuvanesvari

              7.Subramani

              8.Bhakthavachalam                         ..Respondent/5th Respondent/5th Defendant

                (R3 to 8 brought on record as legal heirs of the
                deceased R1 viz., Gangadharan vide Court order
                dt.28.03.2022 made in CMP Nos.3939, 3944 & 3947/2022
                In SA.No.542/2022 (NAVJ).


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                                                                                              S.A.No.542 of 2012

              Prayer:         Second Appeal filed under Section 100 of the Code of Civil Procedure against

              the Judgment and Decree dated 29.7.2011 on the file of Subordinate Judge, Tirutani

              passed in A.S.No.18 of 2011 in set asiding the Judgment and Decree dated 21.8.2006 on

              the file of District Munsif Court, Tirutani in O.S.No.282 of 2000.


                                  For Appellant       : Mrs.A.Sumathy

                                  For Respondents     : Mr.P.Sivamani
                                                        for R1

                                                        R2 – Given up



                                                          JUDGMENT

The defendants are the appellants in this Second Appeal.

2.The 1st respondent/plaintiff filed a suit seeking for the relief of declaration of title

and permanent injunction.

3.The case of the plaintiff is that the suit property originally belonged to one

Narayanasamy Mudali and he settled a portion of the property in favour of

Chinnakulandai ammal under a registered settlement deed dated16.12.1933. The said

Chinnakulandai ammal settled some portion of the property in favour of the plaintiff

under a registered settlement deed dated 21.7.1975. she also sold another extent of

property in favour of the 4th defendant and her husband under a registered sale deed

dated 7.5.1957. Ultimately, the said Chinnakulandai ammal retained an extent of

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S.A.No.542 of 2012

6 feet x 100 feet out of the total extent of 42 feet x 100 feet. This portion is said to

have been purchased by the plaintiff through an oral sale and he claims to be in

possession and enjoyment of the property. This portion of the property has been

described as the suit property.

4.The grievance of the plaintiff is that the defendants started creating a cloud over

his title and were attempting to interfere with his possession and enjoyment. Hence, the

suit came to be filed seeking for the relief stated supra.

5.The defendants filed a written statement and took a stand that the present suit

is not maintainable on the ground of res judicata since the plaintiff's wife filed a similar

suit for declaration and permanent injunction and the same was dismissed and confirmed

up to this Court in S.A.No.522/1997. The further case of the defendants is that there

was no remaining portion that was available to Chinnakulandai ammal that could be

conveyed to the plaintiff. Hence, the very claim made by the plaintiff is unsustainable

and therefore, they sought for the dismissal of the suit.

6.The trial Court on considering the facts and circumstances of the case and after

appreciating the oral and documentary evidence, dismissed the suit through a judgment

and decree dated 21.8.2006. Aggrieved by the same, the plaintiff filed an appeal in

AS.No.18 of 2011. The lower Appellate Court through judgment and decree dated

29.7.2011 allowed the appeal and thereby the judgment and decree passed by the trial

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S.A.No.542 of 2012

Court was set aside. Aggrieved by the same, the defendants have filed this Second

Appeal.

7.When the Second Appeal was admitted, this Court framed the following

substantial questions of law:

a) Whether the judgment and decree passed in the earlier suit

filed by the wife of the plaintiff in O.S.No.286 of 1987 will act as a bar

to maintain the present suit by the husband on principles of res

judicata?

b) Whether the oral sale of the subject property is valid in the

eye of law and the same can form the basis of the right claimed by

the plaintiff in the suit?

c) Whether the findings rendered by both the Courts below can

be held to be perverse on account of improper appreciation of the oral

and documentary evidence available on record?

d) Whether the lower Appellate Court had assigned cogent

reasons as mandated under Order 41 Rule 31 C.P.C. while interfering

with the judgment and decree passed by the trial Court?

8.Heard Mrs.A.Sumathy, learned counsel for the appellants and Mr.P.Sivamani,

learned counsel for the 1st respondent. This Court also carefully perused the materials

available on record and the findings rendered by both the Courts below.

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S.A.No.542 of 2012

9.The trial Court had framed the following issues:

1/ jhth brhj;J thjpahy; 1975 Mk; Mz;oy; U:/90-?f;F rpd;dFHe;ijak;khsplk;

,Ue;J tha;bkhHp fpiuak; th';fpa brhj;J vd;W brhy;tJ rhpah?

2/ jhth brhj;J thjp chpikapYk;. mDgtj;jpYk; ,Ue;J tUtjhf brhy;tJ

rhpah?

3/jhth brhj;J gpujpthjpfspd; KG chpika[ld; mDgtpj;J tUk; brhj;J vd;gJ

rhpah?

4/jhth brhj;J gpujpthjpfspd; ePz;l fhy mDgtj;jpy; cs;sjpdhy; vjphpil

mDgt ghjpaij nfhhpa[s;sJ rhpah?

5/thjp nfhUk; chpik tpsk;g[if ghpfhuk; cWj;Jfl;lis ghpfhuKk;

fpilf;fj;jf;fjh.

6/jhthtpy; thjpf;F fpilf;Fk; ghpfhuk; vd;d?

10.The trial Court dealt with each issue based on the oral and documentary

evidence and gave a categoric finding that the same issue was already decided in the

earlier suit and which ultimately was confirmed up to this Court in Second Appeal. Even

on the merits of the case, the trial Court found that the plaintiff does not have any title

over the suit property and he is also not in possession and enjoyment of the same.

Accordingly, the suit was dismissed.

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S.A.No.542 of 2012

11.It is quite unfortunate that the lower Appellate Court did not even frame the

points for determination and the judgment has been written in a slipshod manner. The

lower Appellate Court which has reversed the findings of the trial Court, has not even

assigned proper reasons as to why it is differing from the findings of the trial Court. The

property has been under dispute for more than 35 years and the lower Appellate Court

ought to have properly dealt with each issue after re-appreciating the oral and

documentary evidence. This is more so since this is the second round of litigation that

has been initiated by the husband, after the wife had lost the earlier round. This Court is

thoroughly disappointed with the manner in which the lower Appellate Court has dealt

with the appeal and the judgment and decree of the lower Appellate Court has to be

interfered on the very ground that it does not satisfy the requirements of Order 41 Rule

31 of CPC. The fourth substantial question of law is answered accordingly.

12.This Court does not want to answer the first three substantial questions of law

since it will touch upon the merits of the case. If any findings are rendered on the merits

of the case, it will have a bearing while the lower Appellate Court considers the appeal on

merits upon remand.

23.In view of the above discussion, this Court is inclined to set aside the judgment

and decree passed in the appeal and remand the matter back to the file of the lower

Appellate Court. This Court is also inclined to fix a time line for the completion of the

Appeal.

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S.A.No.542 of 2012

24.In the result, the judgment and decree passed in AS.No.18 of 2011, dated

29.7.2011 is hereby set aside. The matter is remanded back to the file of the Sub Court,

Tiruttani. The learned Sub Judge, Tiruttani is directed to frame points for determination

and hear the appeal afresh on merits and assign proper reasons as mandated under

Order 41 Rule 31 CPC., before rendering the findings. Adequate opportunity shall be

given to both sides to argue the appeal. The final judgment shall be passed in the appeal

on or beefore 15.07.2022 and compliance shall be reported.

25. In the result, this second appeal is allowed in the above terms. Considering

the facts and circumstances of the case, there shall be no order as to costs. Connected

miscellaneous petition shall stand closed. The Registry is directed to immediately send

back the original records to the lower Appellate Court.

11.04.2022

Internet: Yes Index: Yes/No KP

To

1.Subordinate Judge, Tirutani.

2. District Munsif Court, Tirutani.

3.The Section Officer V.R.Section, High Court, Madras.

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S.A.No.542 of 2012

N.ANAND VENKATESH,J.

KP

Second Appeal No.542 of 2012

11.04.2022

https://www.mhc.tn.gov.in/judis