Madras High Court
Felix Rojario vs Shanthi on 15 December, 2022
S.A.(MD) No.870 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.12.2022
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD) No.870 of 2012
Felix Rojario ... Appellant/Respondent/
Plaintiff
Vs
1.Shanthi
2.Gnanamuthu ... Respondents/Appellants/
Defendants
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 03.08.2012 made in A.S.No.13 of 2011 on
the file of the Sub Court, Pudukkottai, reversing the judgment and decree
dated 29.11.2010 made in O.S.No.224 of 2008 on the file of the District
Munsif Court, Pudukkottai.
For Appellant : Mr.N.Balakrishnan
For Respondents : Mr.S.Anand Chandrasekar
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S.A.(MD) No.870 of 2012
JUDGMENT
The plaintiff in the suit is the appellant in the second appeal. He filed
a suit for declaration of title and injunction in respect of suit 'A' and 'B'
Schedule properties. Suit 'A' Schedule property is a punja land with an
extent of 91 ares in S.No.462/3 in Pudukkottai Viduthi Village. Suit 'B'
Schedule property is a 4.5 ares of land situated in the very same survey
number on the eastern side of the 'A' Schedule property.
2. According to the appellant/plaintiff, the suit property originally
belonged to his father viz., Arockiyasamy @ Arockiam. He sold 12 cents of
suit property viz., 'B' Schedule to Ceylon refugees for construction of
houses for their residence. It was averred in the plaint that though the
plaintiff's father sold 12 cents for construction of house for Ceylon refugees,
the alienees had never taken possession of the properties and possession of
the entire suit property remained with his father. The appellant/plaintiff also
claimed that the suit 'A' Schedule property with an extent of 91 ares was
settled by his father under a settlement deed dated 27.02.2008 in his favour.
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S.A.(MD) No.870 of 2012
3. It was further averred in the plaint that the 1st respondent herein
purchased suit 'B' Schedule property under a sale deed dated 18.09.1997
from the alienees of the appellant's father. Though the 1st respondent
purchased the suit 'B' Schedule property, there was no mutation of revenue
records and it continued in the name of the appellant's father. Further, it was
claimed in the plaint that the respondents made a request to the plaintiff to
sell the remaining portion of the suit properties to them and the same was
refused. Aggrieved by the same, the respondents tried to interfere with the
possession of the appellant and consequently, the appellant was constrained
to file the present suit for declaration and injunction.
4. The 1st respondent/1st defendant filed a written statement and the
same was adopted by the 2nd respondent/2nd defendant. In their written
statement, the respondents denied the title and possession of the appellant.
It was specifically stated in the written statement that the 1st appellant
purchased 12 cents of suit property viz., suit 'B' Schedule from Velayutham
and others under a sale deed dated 18.09.1997 and it was also claimed that
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S.A.(MD) No.870 of 2012
the respondents had been in possession and enjoyment of the said property
right from the date of sale.
5. It was also further stated in the written statement that the suit 'A'
Schedule property was also sold by the plaintiff's father to third parties and
the plaintiff has no possession or enjoyment over the suit 'A' Schedule
properties. It was also stated that the respondents purchased the entire suit
property from the persons who have purchased the remaining suit properties
from the plaintiff's father under a sale deed dated 09.07.2008 for valid
consideration. It was also claimed by the respondents that they have raised
eucalyptus trees in the suit properties and they have been in possession and
enjoyment of the suit property.
6. On these pleadings, the parties went to the trial and the trial Court,
on consideration of oral and documentary evidences, came to the conclusion
that the plaintiff's father sold the suit properties to third parties and hence,
the plaintiff has no title over the suit properties. As far as 12 cents of
properties in suit 'B' Schedule is concerned, the trial Court held that based
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S.A.(MD) No.870 of 2012
on Exs.B.81, B.82, B.83 and B.84, the 1st respondent/1st defendant has
proved her title over the same. However, the title set up by the respondents
in respect of the 'A' schedule property was negatived. The prayer for
declaration in respect of both the schedules of suit properties were
negatived by the trial Court on the ground that the plaintiff's father sold the
suit properties to third parties. However, in respect of relief of injunction,
the trial Court found that no injunction can be granted against true owner
viz., the 1st respondent in respect of the 'B' Schedule. As far as 'A' Schedule
is concerned, the trial Court found that the appellant/plaintiff proved his
possession over the 'A' Schedule property notwithstanding the sale in favour
of the third parties. Consequently, it was held that the plaintiff was entitled
to injunction in respect of the 'A' Schedule property. However, in the
operative portion of the judgment, the trial Court got confused with the
description of 'A' Schedule and 'B' Schedule mentioned in the plaint and
passed a judgment granting relief of injunction alone in respect of 'B'
Schedule property. Though the trial Court found that 1st respondent proved
his title over the 'B' Schedule property and consequently, suit for injunction
would not lie against the true owner, in the operative portion of the
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S.A.(MD) No.870 of 2012
judgment, contrary to its finding, granted a decree for injunction in respect
of 'B' Schedule property. Likewise, though the trial Court found based on
his possession, the appellant/plaintiff is entitled to the relief of injunction
alone in respect of suit 'A' Schedule property, in the operative portion of the
judgment, the suit was dismissed in respect of the entire 'A' Schedule.
7. Aggrieved by the said judgment, the respondents/defendants filed
an appeal in A.S.No.13 of 2011. The appeal was filed by the respondents
challenging the findings found in the trial Court's judgment in respect of the
suit 'A' Schedule property that the appellant/plaintiff is entitled to the relief
of injunction. Though in the operative portion of the judgment, the suit was
dismissed in respect of suit 'A' Schedule property, in view of the adverse
finding against the respondents in respect of suit 'A' Schedule property, the
appeal was filed. The learned appellate Judge held that the
appellant/plaintiff is not entitled to any injunction in respect of suit 'A'
Schedule property after his father sold the entire property to the third
parties. Therefore, the first appellate Court held that the injunction granted
by the trial Court in respect of the suit 'A' Schedule property is liable to be
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S.A.(MD) No.870 of 2012
reversed. But unfortunately, the first appellate Court failed to consider that
in the operative portion of the judgment, the trial Court dismissed the entire
suit in respect of 'A' Schedule property. Aggrieved by the said judgment
passed by the first appellate Court, the plaintiff/appellant has come up by
way of this second appeal.
8. On the basis of the pleadings of the parties, the judgment rendered
by both the Courts below and also the arguments made by the learned
counsel on either side, the following substantial questions of law arise for
consideration in this appeal:
“(i) Whether the judgment and decree passed by
the trial Court contrary to its finding are sustainable in
law? and
(ii) Whether the first appeal filed by the
respondents herein as against the adverse findings
against them is maintainable?”
9. The learned counsel for the appellant submits that the judgment
passed by the Courts below are vitiated by error apparent, as there cannot be
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S.A.(MD) No.870 of 2012
a decree contrary to the findings rendered in the judgment. The learned
counsel for the appellant, by taking this Court to the decree passed by the
trial Court, also submitted that the suit was dismissed in respect of suit 'A'
Schedule, but the appellate Court assumed that the suit was decreed in
respect of 'A' Schedule and allowed the appeal. The learned counsel had
taken me to the findings rendered by the trial Court and submitted that the
final operative portion of the judgment passed by the trial Court is contrary
to its own findings in the judgment.
10. The learned counsel for the respondents, on his part, submitted
that though the appellate Court observed that the first appeal filed by the
respondents was in respect of 'A' Schedule property alone, the perusal of the
grounds of the first appeal would suggest that the appeal was preferred in
respect of the 'A' Schedule as well as the 'B' Schedule. Therefore, the first
appellate Court ought not to have confined its consideration in respect of
the 'A' Schedule of the suit property.
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S.A.(MD) No.870 of 2012
11. It is the submission of the learned counsel for the respondents that
the first appellate Court ought to have considered the first appeal filed by
the respondents in respect of the relief granted regarding 'B' Schedule also.
12. Heard the arguments of both the counsels on the substantial
questions of law framed and perused the records.
13. Reading of the trial Court's judgment would make it clear that on
facts, the trial Court has given a finding that the appellant/plaintiff failed to
prove his title over the suit 'A' Schedule property as well as 'B' Schedule
property. The trial Court also has given a finding that the 1st respondent
proved her title over the suit 'B' Schedule property. After holding that the
suit for injunction filed by the appellant against the real owner in respect of
the suit 'B' Schedule property was not maintainable, in the operative portion
of the judgment, a decree was passed in respect of 'B' Schedule property by
mistake. The trial Court also found that the appellant/plaintiff proved his
possession over suit 'A' Schedule property. However, in the operative
portion, by mistake, the suit was dismissed in its entirety in respect of 'A'
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Schedule property. So the mistake committed by the trial Court is apparent
on the face of the record.
14. It is settled law there cannot be a decree contrary to the findings
rendered in the judgment. In the case on hand, the operative portion of the
judgment is contrary to the own findings of the trial Court. When the
respondents/defendants aggrieved by the adverse findings filed an appeal,
the first appellate Court, which had an opportunity to set right the mistake
committed by the trial Court by re-appreciating the evidence, unfortunately
assumed the appeal filed by the respondents/defendants was only in respect
of suit 'A' Schedule property and set aside the decree for injunction granted
in respect of suit 'A' Schedule property. It is pertinent to note that in fact,
there is no decree for injunction in respect of 'A' Schedule property to
enable the first appellate Court to set it aside. So the judgment passed by
the first appellate Court is also vitiated by erroneous approach to the whole
issue. Therefore, in view of the settled position of law that the operative
portion of a judgment cannot go contrary to the earlier findings in the
judgment, this Court feels that it would be appropriate to set aside the
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S.A.(MD) No.870 of 2012
judgments passed by both the Courts below and remand the matter back to
the file of the trial Court for fresh consideration on the basis of the
evidences already available on record. The mistake that had crept in was
due to misunderstanding by the trial Court with regard to suit 'A' and 'B'
Schedule properties. When a judgment is rendered based on mistaken belief
with regard to description of property, it is appropriate for the trial Court to
redo the appreciation of evidence afresh with correct understanding of
description of properties. In view of error apparent on the face of record,
both the substantial questions of law are answered in favour of the appellant
and the matter is liable to be remanded for fresh consideration.
15. Accordingly, the judgment and decree passed by both the Courts
below are set aside and the matter is remanded back to the file of the
Principal District Munsif, Pudukkottai, for fresh consideration on the basis
of the evidence already available on record. It is made clear that the
judgments of the Courts below are set aside only due to the error apparent
on the judgments of the Courts below as discussed earlier and there is no
necessity for the parties to lead any fresh evidence. Having regard to the
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S.A.(MD) No.870 of 2012
year on which the suit was presented, this Court is inclined to issue a
direction to the trial Court to dispose of the suit within a period of three
months from the date of receipt of a copy of this judgment.
16. Accordingly, this Second Appeal is allowed with the above terms.
The Registry is directed to send the original records to the Courts below.
No costs. Consequently, connected miscellaneous petition is closed.
15.12.2022
Internet:Yes
Index:Yes
abr
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S.A.(MD) No.870 of 2012
To
1.The Sub Judge,
Pudukkottai.
2.The Principal District Munsif,
Pudukkottai.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.870 of 2012
S.SOUNTHAR, J.
abr
S.A.(MD) No.870 of 2012
15.12.2022
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