- vs -
2023 Latest Caselaw 4834 Mad

                                                                                  S.A.No.1863 of 2000


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 26.04.2023

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                                S.A.No.1863 of 2000


                     Nagamalai Konar(Died)
                     2.AN.Selva Raja                               ... Defendant/Applt./Applt.

                                                      -Vs-

                     P.K.Perumal Nayudu(Died)                      ...Plff./Respdt./Respdt.
                     2.A.N.Chellammal
                     3.A.N.Katturaja
                     4.A.N.palanichamy
                     5.A.N.Krishnan
                     6.Thavamani
                     7.B.Ayyammal
                     8.T.Manimegalai
                     9.V.Packia Lakshmi
                     (A2 and RR2 to 9 are brought on record as LRS
                     of the deceased sole appellant vide Court
                     order dated 07.08.2020)
                     10.P.Ravichandran
                     11.Dhanalakshmi
                     12.P.Venkatesan
                     13.P.Srinivasan
                     14.Sangeetha



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                                                                                   S.A.No.1863 of 2000


                     (RR10 to 14 are brought on record as LRS
                     of the deceased sol respondent vide Court
                     order dated 24.01.2020)

                     (Memo presented before the Court on
                     01.4.2022 is recorded as R7 is given up
                     vide Court order dated 01.04.2022)

                     PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                     Code, against the judgment and decree dated 22.11.1999 made in A.S.No.
                     109 of 1998 by the II Additional Subordinate Court, Madurai, confirming
                     the decree and judgment dated 29.06.1998 made in O.S.No.458 of 1993 on
                     the file of the District Munsif Court Madurai Taluk.
                                           For Appellants      :Mr.S.Vellaisamy
                                           For R2 to R5        :No appearance
                                           For R10 to R14      :Mr.S.Ayyanar Prem Kumar
                                           For R1,R6toR9       :No appearance

                                                      JUDGMENT

The first respondent herein is the plaintiff who filed a suit in

O.S.No.458 of 1993 before the District Munsif Court, Madurai, for

declaration and permanent injunction, against the first appellant herein. The

said suit was decreed. Challenging the said judgment and decree, the first

appellant herein filed an appeal in A.S.No.109 of 1998 before the II

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Additional Subordinate Court, Madurai. The learned Subordinate Judge,

dismissed the said appeal and confirmed the judgment and decree passed by

the trial Court. Aggrieved by the said judgment of the lower Appellate

Court, the first appellant/defendant has filed the present second appeal.

2. While admitting the second appeal, this Court formulated the

following substantial questions of law:

“1.Whether the Courts below are right in granting a decree for declaration and injunction, when the appellant is the true owner as per Court sale?

2.Whether the Courts below are right in holding that the Court Sale in favour of the respondent is valid, when the property was under attachment as early as 1972 and when the sale is covered by the provisions of Section 63 C.P.C?”

3. The case of the first respondent/plaintiff is that he purchased

the property by virtue of Court auction through execution petition.

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Subsequently, he filed E.A.No.39 of 1979 in E.P.No.153 of 1975 and

obtained delivery of possession of the property through Court under Order

21 Rule 95 C.P.C., on 13.02.1979 and paying the kist and enjoying the

property continuously. Therefore, he is entitled to get the relief of

declaration. Whereas, the Court sale in favour of the first

appellant/defendant is said to have taken place on 12.09.1988 in E.P.No.37

of 1988 and confirmed on 18.08.1993. But, he did not take the delivery of

possession of the property through Court so far. The respondent/plaintiff

participated in the Court auction and purchased the property and took the

possession of the property through Court Amin and EP was also terminated,

based on the delivery warrant submitted by the Court Amin. Thereafter,

patta was transferred in the name of the respondent/plaintiff and he was

continuously enjoying the property by paying kists. Since taking advantage

of the other decree, the appellant/defendant is trying to interfere with his

possession. Therefore, the respondent/plaintiff has filed the present suit for

declaration and permanent injunction.

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4. The case of the first appellant/defendant is that he purchased

the property through Court auction sale in E.P.No.37 of 1985 in O.S.No.4 of

1972 on the file of the Sub-Court, Sivagangai. Execution Petition was filed

and the same was allowed. Therefore, though the respondent/plaintiff stated

that he purchased the property through Court auction, no patta was

produced and hence, the respondent/plaintiff is not entitled for decree.

5. The learned counsel appearing for the appellant/defendant

would submit that the trial Court, without giving any finding and validity of

the purchase of the property by the defendant in Court auction and decreed

the said suit. Therefore, he filed an appeal before the lower Appellate Court.

But, the Lower Appellate Court has not given any reason independently and

as to how the judgment of the trial Court is well founded and without

discussing anything and without assigned any reason, simply has endorsed

the view of the trial Court and therefore, it warrants interference by this

Court.

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6. The learned counsel appearing for the respondent/plaintiff

would submit that the trial Court elaborately discussed about all the

documents and satisfied with the documents and also gave effect to the

Amin warrant and about the delivery of the property reported before the

Court and the Court also recorded the same and terminated execution

petition. Therefore, the possession of the property to the respondent/plaintiff

was proved. Since the delivery was effected through Court proceedings, it is

a public document and unless it is contrarily proved that the entries made in

the public document are not genuine, the trial Court decreed the suit. Hence,

the appellate Court also confirmed the the judgment of the trial Court and

there is no reason to interfere.

7. Heard the learned counsel appearing for the appellant and the

learned counsel appearing for the respondents and perused the records

available on record.

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8. No doubt, both are claiming title under the Court auction sale.

Now, the dispute is who has taken the delivery of the property and who are

in possession of the property and which of the Court auction sale is valid

and prevailed over the others. However, the trial Court has assigned any

reason. As the appellate Court is a final Court of fact finding, it has to

necessarily re-appreciate the evidence and give an independent finding and

it cannot simply endorse the view of the trial Court, without assigning any

independent reason and finding. Therefore, nothing has been found in the

judgment of the lower Appellate Court about the discussion or the validity

of any of the documents of both the appellant and the respondent and the

reason for his own decision for giving a finding regarding the validity of the

document.

9. Under these circumstances, the judgment of the lower Appellate

Court is set aside and the matter is remitted back to the lower Appellate

Court and the lower Appellate Court is directed to hear the matter afresh and

dispose of the appeal on merits and in accordance with law. Since the

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second appeal is pending from more than 22 years, both the parties are

directed to appear before the First Additional Subordinate Court, Madurai,

on 06.06.2023. The Registry is directed to send back all the original records

to the First Additional Subordinate Court, Madurai, immediately, without

any further delay. The First Additional Subordinate Judge, shall take the

appeal and hear the matter and dispose of the same, within a month on or

before 28.06.2023 and file a report before this Court, on 30.06.2023. Both

the parties are directed to extend their fullest co-operation for disposal of

the appeal within the stipulated time before the lower Appellate Court. If

any of the parties are not co-operated, the First Additional Subordinate

Judge, is directed to record about the non co-operation of the parties and

send the records immediately before this Court for passing further orders.

10. List the matter on 30.06.2023, for filing report by the First

Additional Subordinate Court, Madurai.

26.04.2023

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Note:Issue order copy on 28.04.2023 To

1.The II Additional Subordinate Court, Madurai.

2.The District Munsif Court, Madurai Taluk.

5. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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P.VELMURUGAN,J.

Ns

S.A.No.1863 of 2000

26.04.2023

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