Madras High Court
Arulmighu Kasi Viswanatha And vs S.Sundari Ammal on 20 October, 2022
S.A.No.2002 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.10.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.No.2002 of 2002
1.Arulmighu Kasi Viswanatha and
Visalakshi Amman Thirukoil,
Rep.by its Executive Officer,
Dindigul, Athur Village. ... Appellant/Respondent/Plaintiff
2.The Executive Officer,
Arulmighu Kasi Viswanatha and
Visalakshi Amman Thirukoil,
Athur Village,
Dindigul District. ... 2nd Appellant
[Appellant No.2 was impleaded as per the
order dated 14.02.2019 in C.M.P(MD).No.
8963 of 2018 in S.A.No.2002 of 2002]
Vs
S.Sundari Ammal ....Respondent/Appellant/Defendant
Prayer : Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 02.04.2001 in A.S.No.4 of 2000 on the file of
the Additional District Court, Dindigul reversing the judgment and decree
dated 16.09.1999 in O.S.No.671 of 1997 on the file of the II Additional
District Munsif's Court, Dindigul.
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S.A.No.2002 of 2002
For Appellants : Mr.S.Sivathilakar
For Respondent : Mr.Balasundaram
JUDGMENT
The plaintiff, in O.S.No.671 of 1997 on the file of the II Additional District
Munsif's Court, Dindigul, which was laid for recovery of possession of the
suit properties with mesne profits, is the appellant herein. The suit was
decreed by the trial Court, but the plaintiff suffered a reversal in fortune in
A.S.No.4 of 2000 filed by the defendant before the first appellate Court.
Hence, the present second appeal.
2. The plaintiff has come with a straight forward case. There are two items
of suit properties both of which belong to the temple and that patta stands in
the name of the plaintiff. Shortly prior to the institution of the suit, it has
come to the knowledge that the defendant is in possession of the suit
properties. Hence, the plaintiff issued Ext.A2, suit notice dated 09.06.1997.
It was received by the defendant but was not replied to.
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S.A.No.2002 of 2002
3. Disputing the title of the plaintiff in the suit properties, the defendant
contended:
➢ That the suit properties were the private properties even prior to the
settlement under the Inam Abolition Act and that originally, the
properties stood in the name of Muthukannu Ammal under Patta No.
➢ On the demise of Muthukannu Ammal, the properties devolved on her
heir Natesa Mudaliyar. Natesa Mudaliyar died. The properties
devolved on his widow Subbuthai.
➢ On 14.05.1955, Subbuthai had executed a settlement deed in favour
of one Arumuga Mudaliyar, who is her husband's nephew. On the
demise of Arumuga Mudaliyar, the properties devolved on his son,
Rengasamy.
➢ Rengasamy had one son and three daughters in whose favour he is
stated to have executed a Will dated 03.10.1978. Subsequent to his
demise on 08.08.1981, Rengasamy's four children had entered into
Ext.B1, partition deed, dated 30.08.1983, in which, the suit properties
came to be allotted to Rengasamy's three daughters under B-Schedule
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S.A.No.2002 of 2002
to Ext.B1. Subsequently, vide Ext.B3, sale deed dated 02.07.1986, the
three daughters of Rengasamy had sold the suit properties to the
defendant. The defendant is thus a bona fide purchaser of the suit
properties. He has also prescribed title by adverse possession.
4. The suit went to trial and before the trial Court, both sides have adduced
their oral and documentary evidences. For the plaintiff, the plaintiff had
produced Ext.A1 to Ext.A7 of which Ext.A1 is the patta in the name of the
plaintiff and Ext.A7 is the re-settlement Register. The defendant was
satisfied producing just four documents of which Ext.B1 and Ext.B3 have
already been referred to above and Ext.B4-Patta appears to have been issued
in the very fasli year in which the suit was laid.
5. On appreciating the evidence, the trial Court chose to decree the suit
relying essentially on Ext.A7 and Ext.A1. It has taken note of the fact that
barring Ext.B1 and Ext.B3, the defendant had not produced any document
to show that the properties had been held by Muthukannu Ammal to whom
the defendant traced the title to. Aggrieved by the said decree, the defendant
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S.A.No.2002 of 2002
preferred A.S.No.4 of 2000 before the first appellate Court and the
defendant had filed additional documents which came to be marked as
Ext.B4 to Ext.B8. On the side of the plaintiff, they also produced two
documents in Ext.A.8 and A.9.
6. On a re-appraisal of the evidence along with additional evidence admitted
before it, the first appellate Court had reversed the decree of the trial Court
and dismissed the suit. Hence, the second appeal at the instance of the
plaintiff.
7. The appeal was admitted for considering the following substantial
questions of law:
“i) Whether the learned Judge is right in reversing the well-
considered findings of the trial Court without considering the
entries made in the Settlement Register? And
ii) Having found that the grant is in favour of the Appellant-
Temple for rendering Dasi Service, the question of asserting
independent Title to the suit property either by the service
holder or their successors-in-interest does not at all arise?”
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S.A.No.2002 of 2002
8. The learned counsel for the plaintiff submitted that Ext.A.7 along with
Ext.A.8 indicate that the property was a service inam property and that the
pattadhar is a certain Muthukannau Ammal and Ext.A.9 indicates that the
property belonged to Visawanathasami Temple, the plaintiff herein. He also
submitted that this aspect can also stand verified vis-a-vis Ext.B.5, a
document additionally produced by the defendant. The learned counsel
further added that when additional documents are produced under Order 41,
Rule 27, it is imperative that opportunity to rebut the evidence under Order
41 Rule 28 is given to the other side, but that was not given.
9. Per contra, the learned counsel for the defendant would submit that
following the Service Inam Abolition Act, the property covered by the
service inam was enfranchised in the name of the service holder.
Accordingly, Muthukannu Ammal had become the absolute owner of the
property under whom the defendant is claiming. The learned counsel too
made a fair statement that the lower appellate Court ought to have granted
opportunity to both the sides in terms of Order 41 Rule 28 to
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S.A.No.2002 of 2002
enable both the sides to lead any rebuttal evidence as regards the documents
both sides have produced.
10. This case is pending for 20 years now and since the institution of the
suit, this is the 25th year and this delay could have been easily averted if, and
if only, the first appellate Court was slightly vigilant in allowing the parties
to formally prove the documents that they have produced, and also grant an
opportunity to lead rebuttal evidence as against the documents which the
other side was permitted to produce. This has created a procedural
imbroglio and it may not be overcome as it affects the fairness of the trial
process. After all, the first appellate Court is a final Court of facts and
hence, this opportunity is mandatory.
11. Hence, the Second Appeal is allowed, the judgment and decree dated
02.04.2001 made in A.S.No.4 of 2000 reversing the judgment and decree
dated 16.09.1999 made in O.S.No.671 of 1997 is set aside and the matter is
remanded back to the Additional District Court, Dindigul, wherein before
both sides are required to formally prove their respective documents which
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S.A.No.2002 of 2002
they had produced before the first appellate Court and also for adducing
rebuttal evidence as against the documents so produced by them in A.S.No.4
of 2000. The first appellate Court is now required to dispose of the same in
the manner hereinabove indicated, leaving no stone unturned in attending to
all the factual and legal aspects of the litigation and to dispose of the matter
within a period of six months from 09.11.2022.
12. Both sides are required to appear before the Additional District Judge,
Dindigul on 09.11.2022. The Registry is required to send the lower Court
records forthwith. No costs
20.10.2022
Index: Yes/No
Internet: Yes
Note: Issue order copy on 26.10.2022.
ssb/abr
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S.A.No.2002 of 2002
To
1.The Additional District Judge,
Dindigul.
2.The II Additional District Munsif,
Dindigul.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.2002 of 2002
N.SESHASAYEE, J.
abr
S.A.No.2002 of 2002
20.10.2022
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