Madras High Court
K.Mahendran vs C.Selvaraj on 23 August, 2023
2023/MHC/4090
SA(MD)No.570 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 23.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.570 of 2017
and
C.M.P.(MD)No.12165 of 2017
K.Mahendran ... Appellant/ Appellant / Defendant
Vs.
C.Selvaraj ... Respondent / Respondent / Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 31.01.2017 passed in
A.S.No.41 of 2013 on the file of the II Additional Subordinate Judge,
Trichirappalli in confirming the judgment and decree dated 24.03.2011
passed in O.S.No.243 of 2000 on the file of the District Munsif Court,
Munisir.
For Appellant : Mr.R.Govindaraj
For Respondent : Mr.K.Govindarajan
1/16
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SA(MD)No.570 of 2017
JUDGMENT
The appellant herein is the defendant, and the respondent herein
is the plaintiff before the trial Court.
2.For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3.The brief facts of the plaint, are as follows:
According to the plaintiff, first item of 'A' schedule suit property
was originally belonged to one Annavi, S/o.Avuli Muthuraja. From him,
the plaintiff had purchased the property on 24.04.1980. Likewise, he also
purchased the second item of 'A' schedule property from one Muthaiah and
Ponnusamy under two different sale deeds dated 24.04.1980. Thus, the
plaintiff became the owner of 'A' schedule property. It is the submission of
the plaintiff that 'B' schedule property is the government poramboke land,
and he had been in encroachment of the same and paying 'B” memo for
more than 12 years and therefore, he would submit that he has been in
actual physical possession and enjoyment of 'A' and 'B' schedule property.
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SA(MD)No.570 of 2017
He would further submit that his possession has been disturbed by the
defendant. Hence, he came up with a suit for the relief of permanent
injunction.
4.The brief facts of the written statement, are as follows:
The suit was resisted by the defendant by contending that the suit
properties are originally belonged to one Molaiyan @ Perumal Muthuraja
who was the grandfather of the defendant. He further submits that there
was partition on 24.04.1972 between the heirs of Molaiyan @ Perumal
Muthuraja. In the said partition, the suit properties were allotted to
Perumal Muthuraja. It is the submission of the defendant that the said
Perumal Muthuraja had handed over same to one Vellaiammal with a
request to hand over the same to Neelambal. It is also the submission of
the defendant that the suit properties were in actual possession and
enjoyment of Neelambal, and the defendant is the legal heir of Neelambal.
After the demise of Neelambal, the suit properties devolved on the
defendant and he has been in actual possession and enjoyment of the same.
Therefore, he would submit that the very suit is liable to be dismissed.
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SA(MD)No.570 of 2017
5.Before the trial Court, on behalf of the plaintiff, two witness
were examined as P.W.1 and P.W.2 and 21 documents were marked as
Ex.A1 to Ex.A21. On behalf of the defendant, 2 witnesses were examined
as D.W.1 and D.W.2 and 32 documents were marked as Ex.A1 to Ex.A32.
6.After considering the pleadings, material on record and
evidence, the trial Court had found that the plaintiff has been in possession
and enjoyment of the suit properties, and that the defendant has no right
over the same and ultimately, granted the decree of permanent injunction in
favour of the plaintiff.
7.Aggrieved with the order of the trial Court, the plaintiff /
respondent has filed a first appeal in A.S.No.41 of 2013. The first Appellate
Court had confirmed the judgment and decree passed by the trial Court,
vide judgment and decree dated 31.01.2017.
8.Aggrieved with the said finding of the first Appellate Court, the
defendant filed this Second Appeal.
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SA(MD)No.570 of 2017
9.After hearing either side, this Court has admitted the Second
Appeal, on 19.02.2018, on the following substantial questions of law:
“1) When the plaintiff has failed to establish his
own case, whether the Courts below are right in decreeing
the Suit on the weakness of the defendant's case against the
rulings reported in 2008 (2) L.W. 817?
2) When the plaintiff sought for half share in the
suit property without giving any boundaries of the suit
properties, whether the Courts below are right in granting
Decree for Injunction for half share?
3) When the plaintiff has failed to establish his
predecessors' title to the property, whether the Courts
below are right in decreeing the Suit based on Sale Deed
marked under Ex.A1 and Ex.A2?
4) When the plaintiff has failed to prove his case,
whether the Courts below are right in costing the burden
on the defendant to prove his possession?”
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SA(MD)No.570 of 2017
10.The learned counsel for the appellant / defendant would
submit that the judgment and decree passed by the first Appellate Court is
not in compliance with Order 41, Rule 31 of CPC. He would vehemently
submit that the first Appellate Court is the final Court of facts. Therefore, it
is the duty of the first Appellate Court to reassess the evidence and to
answer the materials proposition of law affirmed by one party and denied
by the another party. Whereas in the first instance, the first Appellate Court
had not at all framed any issue and had not answered the issue based upon
the evidence. Therefore, he would also submit that the very judgment and
decree of the first Appellate Court is liable to be interfered with. In this
regard, he relied on the following judgments:-
“(1) Munivel Vs. Munusamy Mudaliar reported in
1997 (1) CTC 26 and
(2) Chinnammal v. M.Ramasamy Naicker reported
in (2002) 3 M.L.J. 501”
11.Per contra, the learned counsel for the respondent / plaintiff
strenuously submitted that the first Appellate Court though has not framed
any issue, on a harmonious reading of the judgment would show substantial
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SA(MD)No.570 of 2017
compliance of Order 41 Rule 31. Since because there is no separate issue
framed in respect of each material proposition of law affirmed by one party
and denied by the another party, that does not mean that the entire appeal is
to be thrown on the basis of such superficial defect. The learned counsel for
the respondent / plaintiff would also submit that he was in actual physical
possession and enjoyment of the suit properties. Therefore, he would
contend that the very finding of the trial Court as well as the first Appellate
Court is based upon the evidence and documents and granted the relief of
permanent injunction. Hence, he would submit that the judgment and
decree of the Courts below does not require any interference and prayed for
dismissal of the second appeal. He also relied on the judgment of the
Hon'ble Supreme Court reported in (2006) 2 M.L.J. 63 (G.Amalorpavam
vs R.C.Diocese of Madurai).
12.I have given my anxious consideration to the either side
submissions and also perused the materials.
13.The learned counsel for the appellant's foremost submission is
in respect of non-compliance of provision under Order 41, Rule 31 of CPC.
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SA(MD)No.570 of 2017
This Court has perused the judgment of the first Appellate Court. As
rightly submitted by the learned counsel for the respondent, the first
Appellate Court did not frame any issue in respect of each and every
material proposition of law affirmed by one party and denied by the another
party, however, framed an omnibus point for consideration, as to whether
the appeal deserves any admittance. Therefore, the learned counsel for the
appellant submitted that such procedure is in utter violation of Order 41,
Rule 31.
14.At this stage, it is relevant to rely on the judgment of the
Hon'ble Supreme Court reported in 1997 (1) CTC 26 (Munivel Vs.
Munusamy Mudaliar). Wherein it is held as follows:-
“11. In this case, the first appellate court has not
conformed strictly to the provisions of Rule 31. This Court has
held that the provisions of this Rule are mandatory. A judgment
which does not comply with the provisions of Rule 31 is no
judgment in law. The judgment of the appellate court should
briefly but clearly set out the allegations of the plaintiff, the pleas
in defence and the findings of the court below on the issues
arising out of the pleadings and then it should give the points for
determination the decision thereon and the reasons.”
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SA(MD)No.570 of 2017
15.In another judgment, the learned Single Judge of this Court in
the decision reported in (2002) 3 M.L.J. 501 (Chinnammal v.
M.Ramasamy Naicker) had held as follows:-
"13.After careful consideration of the rival
submissions and the scrutiny of the available materials what are
all required to be stated is that the judgment of the First
Appellate Court has got to be set aside in view of the non-
compliance of the mandatory provisions under O.41 Rule 31
CPC. The First Appellate Court instead of setting the points for
determination has stated as follows:
Nky; KiwaPl;by; jPh;T fhz Ntz;ba
gpur;ridahnjdpy; “,k;Nky; KiwaPL mDkjpf;ff;
$bajh vd;gNjahFk;?”
From above judgments, the learned counsel for the defendant would pray to
set aside this judgment as the first Appellate Court had not gone into the
material facts and marshalled the evidence based on each issue.
16.At this juncture, the learned counsel for the respondent drew
the attention of this Court about the judgment of the Hon'ble Supreme
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SA(MD)No.570 of 2017
Court reported in (2006) 2 M.L.J. 63 (G.Amalorpavam vs R.C.Diocese of
Madurai). In Paragraph No.9, it has stated as follows:-
" 9.The question whether in a particular case there has
been a substantial compliance with the provisions of Order 41 Rule
31 CPC has to be determined on the nature of the judgment delivered
in each case. Non-compliance with the provisions may not vitiate the
judgment and make it wholly void, and may be ignored if there has
been substantial compliance with it and the second appellate Court
is in a position to ascertain the findings of the lower appellate Court.
It is no doubt desirable that the appellate court should comply with
all the requirements of Order 41 Rule 31 CPC. But if it is possible to
make out from the judgment that there is substantial compliance with
the said requirements and that justice has not thereby suffered, that
would be sufficient. Where the appellate court has considered the
entire evidence on record and discussed the same in detail, come to
any conclusion and its findings are supported by reasons even though
the point has not been framed by the appellate Court there is
substantial compliance with the provisions of Order 41 Rule 31 CPC
and the judgment is not in any manner vitiated by the absence of a
point of determination. Where there is an honest endeavour on the
part of the lower appellate court to consider the controversy between
the parties and there is proper appraisement of the respective cases
and weighing and balancing of the evidence, facts and the other
considerations appearing on both sides is clearly manifest by the
perusal of the judgment of the lower appellate court, it would be a
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SA(MD)No.570 of 2017
valid judgment even though it does not contain the points for
determination. The object of the Rule in making it incumbent upon
the appellate court to frame points for determination and to cite
reasons for the decision is to focus attention of the Court on the rival
contentions which arise for determination and also to provide
litigant parties opportunity in understanding the ground upon which
the decision is founded with a view to enable them to know the basis
of the decision and if so considered appropriate and so advised to
avail the remedy of Second Appeal conferred by Section 100 CPC. "
(Emphasis supplied by this Court)
17.According to the above Hon'ble Supreme Court judgment, if it
is possible to make out from the judgment, that there is substantial
compliance of Order 41, Rule 31 of CPC and that the justice has not
thereby suffered, mere non-framing of issue in respect of each material
proposition of law and facts is not a material irregularity.
18.Keeping in mind with the ratio of the above judgment, if we
read the judgment of the the first Appellate Court, though an omnibus issue
such as “whether appeal is liable to be allowed”, framed, while going
through the judgment, harmoniously, it comes to our light that, the first
Appellate Court has gone into all material aspects and answered all the
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SA(MD)No.570 of 2017
issues framed by the trial Court, though no independent issues were framed
in the first appeal. It is pertinent to mention here that, the first Appellate
Court has given a finding that the defendant has not proved the ownership
over the suit properties. The first Appellate Court also relied upon Ex.A1
and Ex.A2 and ultimately, concluded that the suit properties is absolute
property of the plaintiff. Therefore, this Court is of the view that though
the first Appellate Court's judgment did not have separate issue, still the
judgment had complied with the principle under Order 41 Rule 31 of CPC.
Therefore, this Court is of the firm view that, since because there was no
separate issues framed by the first Appellate Court, the judgment of the first
Appellate Court need not be set aside on that, score alone.
19.At this juncture, the learned counsel for the respondent invited
the attention of this Court in respect of the various admissions made by the
defendant during cross-examination. Though the defendant in many places
had admitted the possession and ownership of the plaintiff, this Court is
inclined to refer few admissions made by the defendant during
cross-examination, which has been extracted by the trial Court. For ready
reference, the same is extracted hereunder:-
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SA(MD)No.570 of 2017
“tof;F nrhj;J vg;gb ghj;jpak; vd;why; vd;
mk;kh tPl;L tifapy; fpilj;jjhf nrhy;ypAs;Nsd;.
vd; mk;khTf;F vg;gb ghj;jpak; vd;W vdf;F njhpahJ.
vd; mk;kh ngah; ePyhk;ghs;. nry;tuh[;; fpuak; thq;fpa
nrhj;jpy; vd; mk;khTf;F ghj;jpak; ,y;iy. ................
............... Nkhisad; kw;Wk; vd; jhahUf;F gphpe;j
nrhj;Jf;fis nghWj;J nry;tuh[; ,e;j tof;if
jhf;fy; nra;atpy;iy vd;why; rhpjhd;”
But he pleads contrary to the above admission.
20.According to the written statement, the suit property belongs
to the defendant as a legal heir of one Moliyan @ Perumal Muthuraja.
Further, he also pleaded that the partition deed dated 24.04.1972 contain
the suit property. But the above admission goes counter to the defendant's
case. It is settled principle of law that admission of the other side is the
best evidence. Here, the defendant himself admits that the defendant did
not file suit in respect of his mother's property, who is admittedly
predecessor in title of the defendant.
21.As such, it is crystal clear that the suit properties belong to the
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SA(MD)No.570 of 2017
plaintiff. Coming to the possession, the trial Court relied upon the
numerous revenue records and confirmed the possession of the defendant.
To contradict such finding, the defendant did not produce any document
before the Court below. When the defendant himself admitted the
ownership of the plaintiff, and when the possession was proved by the
plaintiff through the revenue records, this Court could not find any
infirmity in the order of the trial Court as well as well as the first Appellate
Court. Here, though a substantial question of law framed on the basis of
the precedent reported in 2008-2-L.W. 817 (Arulmighu
Sri.Subramaniaswami Thirukovil v. Thiruchendur Panchayat Union),
the ratio of the above judgment is not applicable to the facts of this case.
According to the reported judgment, weakness of the defendant's case was
considered. Here, we are relying only the admission of the defendant and
not their weakness.
22. Thus, from the submissions of the learned counsel for the
appellant, this Court finds no material so as to interfere with the well
considered order of both the Courts below.
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SA(MD)No.570 of 2017
23.In the result, the Second Appeal is dismissed as no substantial
question of law arises. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
23.08.2023
NCC : Yes/No
Index :Yes/No
ias
To:-
1.The Principal District Court,
Tirunelveli.
2. The Principal Sub Court,
Tirunelveli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.570 of 2017
C.KUMARAPPAN.,J.
ias
Judgment made in
S.A.(MD)No.570 of 2017
23.08.2023
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