Madras High Court
Thangasamy vs Ramkumar on 29 March, 2022
A.S.(MD)No.229 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.03.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.229 of 2021
and
C.M.P.(MD)Nos.7463 and 7464 of 2021
1.Thangasamy
2.E.Jeyaraman
3.E.Mohanram
4.M.Chandra Chaitanya ... Appellants/LR of the deceased sole Plaintiff
Vs.
1.Ramkumar
2.S.Murugan ... Respondents/Defendants
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against
the judgment and decree passed in O.S.No.60 of 2016 dated 24.01.2020 on the
file of the 2nd Additional District Court, Tuticorin.
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A.S.(MD)No.229 of 2021
For Appellants : Mr.B.Gunasankar
For Mr.H.Arumugam
For Respondents : Mr.N.Tamilmani
For Mr.M.Veilkaniraja
JUDGEMENT
This appeal has been filed challenging the judgment and decree of the learned
II Additional District Judge, Thoothukudi, dated 24.01.2020 made in
O.S.No.60 of 2016.
2.The appellants are the legal heirs of the deceased plaintiff; the deceased
plaintiff filed the suit for declaration and permanent injunction in respect of the
suit properties.
3.The case of the plaintiff is that the suit properties belong to him by virtue of a
partition deed/Ex.A1 dated 02.12.1959; the suit properties are found as items 1
and 6 of 2nd schedule in the partition deed and it had Door Nos.1, 2 and 34 to
37 and thereafter, new door numbers were given; the first defendant is the
brother of the deceased plaintiff; he was allotted with his share under
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A.S.(MD)No.229 of 2021
5th schedule in the partition deed and he has sold the same; thereafter, the first
defendant started to create troubles by claiming that he has title in the
properties allotted to the plaintiff in the partition; he also approached the
authorities to change the property tax assessment for the buildings in his name;
in connection with this he has filed a writ petition in W.P.(MD)No.9221 of
2015 before this Court and got directions; in pursuance of that, proceeding was
conducted by the Executive Officer, Ettayapuram Town Panchayat and at the
conclusion, the parties are directed to approach the Civil Court for appropriate
remedies; however, the first defendant continued to make attempts to encumber
the properties; he has also given a false complaint; he has created three sale
deeds in favour of the second defendant without having any right of title in
respect of the suit properties; since those sale deeds would not bind interest of
the plaintiff over the suit properties, it is null and void; hence, the plaintiff
ignored the same and filed the suit for declaration that the suit properties
belonged to the plaintiff and also consequential relief of permanent injunction
against the defendants.
4.The defendants filed written statement by stating that the plaintiff has not
correctly identified the property allotted to him in partition deed; in fact, the
first defendant was allotted house buildings to his share at Melaratha Veethi at
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A.S.(MD)No.229 of 2021
Ettayapuram; the first defendant has got so many buildings and out of those
buildings, two buildings got Door Nos.32 and 36, the first defendant sold the
same through two registered sale deeds dated 19.10.2016 and 24.10.2017; in
order to rectify the mistakes crept in the description of the properties in the
partition deed and change property tax assessment, he approached the
Executive Officer, Ettayapuram Town Panchayat; since no steps have been
taken, he filed a writ petition before this Court and got direction; the Executive
Officer, Ettayapuram Town Panchayat directed the parties to approach Civil
Court for seeking remedy; the sale deed executed by the first defendant would
pass title to his vendee and they cannot be challenged by the plaintiff; the
second defendant is the bonafide purchaser of the suit property and he had
purchased the suit property after verifying the records; the plaintiff has filed
the suit without any legal basis.
5.The plaintiff and the first defendant belong to Ettayapuram Jamin Hereditary
and having lot of movable and immovable properties in Ettayapuram Jamin; by
virtue of family arrangements, the family members executed power of attorney
in favour of the plaintiff to manage the properties; since some
misunderstanding arose between them, the first defendant cancelled the power
of attorney executed in favour of the plaintiff; after cancellation, he verified his
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A.S.(MD)No.229 of 2021
share in the properties and came to understand that some of the assessments for
his buildings stood in the name of other co-sharers; thereafter, he took steps to
cancel the assessments and also got the cancellation order; only thereafter, the
first defendant sold the building bearing Door Nos.32, 34 and 36 to the second
defendant and thereafter, assessment was transferred in the name of the second
defendant; hence, the suit has to be dismissed.
6.Basing on the above pleadings, the learned trial Judge framed the following
issues:-
“1.thjpf;F tpsk;g[if ghpfhuk; fpilf;ffj;jf;fjh?
2.thjp tifahl;fs; gpuhJ jgrpy; brhj;Jf;fis mikjpahf mDgtk;
bra;tij gpujpthjpfnsh mtuJ tifahl;fnsh
vt;tpjj;jpYk; ,ila{W bra;af;TlhJ vd;gjw;F xU epue;ju
cwjJf;fl;lis ghpfhuk; fpilf;fj;jf;fjh?”
7.During the course of evidence, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and Exs.A1 to A27 were marked; on the side of the
defendants, the first defendant examined himself as D.W.1 and the Executive
Officer was examined as D.W.2 and Exs.B1 to B6 were marked through D.W.1
and Exs.X1 to X14 were marked through D.W.2; and two other witnesses were
also examined as D.W.3 and D.W.4.
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A.S.(MD)No.229 of 2021
8.At the conclusion of the trial, the learned trial Judge had dismissed the suit;
aggrieved over that, the legal heirs of the plaintiff has filed this appeal.
9.Mr.B.Gunasankar, learned counsel for the appellant submitted that the perusal
of the judgment would show that the learned trial Judge had not dealt any of the
issues in a proper manner and he just reproduced the contentions made by both
parties and concluded his judgment; there is no appreciation of evidence and
the judgment was not delivered in accordance with rules of judgment found in
Order 20 Rule 5 CPC; the findings were not given basing on appreciation of
evidence and the dismissal of the suit was made just like that; hence, the matter
should be remanded back to the trial Court for fresh disposal by properly
appreciating the evidence on record.
10.Mr.N.Tamilmani, learned counsel for the respondents also fairly conceded
that the judgment had only the submissions made by both sides and it did not
have any appreciation of facts and evidence; hence, the matter should be
remanded back to the trial Court for fresh consideration basing on the evidence
on record.
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A.S.(MD)No.229 of 2021
11.The point for consideration arises in this appeal is as follows:-
“Whether the appellants are entitled to the remand of the matter?”
12.It is painful to note that the judgment of the trial Court is a wasteful
exercise, which does not have any reason for its findings. The fundamental
function of the trial Court is to record its findings with the reason for the issues.
Without adverting into the evidence on record, such findings cannot be given.
Order 20 Rule 5 CPC states how a Court has to deal with each issues while
delivering judgments. It is extracted as under:-
Order 20 Rule 5:
Court to state its decision on each issue - In suits in which issues have
been framed, the Court shall state its finding or decision, with the
reasons therefor, upon each separate issue, unless the finding upon any
one or more of the issues is sufficient for the decision of the suit.
13.The impugned judgment does not contain any reason and there is total
absence of appreciation of evidence. If the judgments are given without any
analysis and findings, none of the parties would be able to understand for what
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A.S.(MD)No.229 of 2021
reason, they have won the case or lost the case. The party, who has lost the case
is in more pitiable condition because he could not know from where should he
draw the grounds of appeal. The appellate Court would also become helpless.
Since the impugned judgment does not fit into the standards of a judgment, no
doubt it requires interference.
14.If the first appellate Court takes up the job of the trial Court and appreciates
the evidence and deliver a judgment, that would deprive an opportunity for
appeal. It is obligatory on the trial Court to properly appreciate the facts and
evidence and record reasons before arriving at any finding for any issue framed
by it. Since the fundamental function of the trial Court in writing the judgment
is not properly discharged, the matter deserves to be remanded to the trial Court
for fresh disposal by appreciating the evidence.
15.In the result, the Appeal Suit is disposed of and the judgment and decree
passed in O.S.No.60 of 2016 by the learned II Additional District Court,
Thoothukudi, is set aside and the matter is remanded to the file of the learned II
Additional District Judge, Thoothukudi, for fresh disposal by appreciating the
evidence on record within a period of three months from the date of receipt of a
copy of this judgment. In view of the strange circumstances of this case, the
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A.S.(MD)No.229 of 2021
Court fee paid by the parties is ordered to be refunded. No costs.
Consequently, connected miscellaneous petitions are closed.
29.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
The II Additional District Court,
Tuticorin.
Copy to:-
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.229 of 2021
R.N.MANJULA, J.
ias
A.S.(MD)No.229 of 2021
29.03.2022
https://www.mhc.tn.gov.in/judis
