Madras High Court
N.Rengarajan vs N.Sellammal on 8 September, 2023
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:08.09.2023
CORAM :
The Hon'ble Mr.JUSTICE V.LAKSHMINARAYANAN
C.R.P(NPD)No.894 of 2003
S.A.Nos.507 and 508 of 2003
and Cross.Objn.Nos.46 and 52 of 2022
and CMP No.19212 of 2023
C.R.P.(NPD)No.894 of 2003
N.Rengarajan .. Petitioner
-vs-
N.Sellammal .. Respondent
S.A.No.507 of 2004
1.Jayalakshmi (died)
2.Rengarajan ... Appellants
vs
1.Sellammal (died)
2.Gunasekaran
3.R.Muthamilselvan
4.R.Selvarasu
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
5.G.Thenmozhi
6.T.Senthamarai
7.R.S.Kalaiselvi
8.K.Umarani
(R.3 to R.8 brought on record as Lrs of the
deceased R.1 viz., Sellammal vide court
Order dared 15.03.2022 made in CMP No.
13168 of 2021 in SA No.507 of 2004 .. Respondents
S.A.No.508 of 2004
1.Jayalakshmi (died)
2.Rengarajan ... Appellants
vs
1.Sellammal (died)
2.R.Muthamilselvan
3.R.Selvarasu
4.G.Thenmozhi
5.T.Senthamarai
6.7.R.S.Kalaiselvi
7.K.Umarani
(R.2 to R.7 brought on record as Lrs of the
deceased R.1 viz., Sellammal vide court
Order dared 15.03.2022 made in CMP No.
13171 of 2021 in SA No.508 of 2004 ..Respondents
Cross Objection No.46 of 2022
1.Sellammal (died)
2.R.Muthamilselvan
3.R.Selvarasu
4.G.Thenmozhi
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
5.T.Senthamarai
6.7.R.S.Kalaiselvi
7.K.Umarani ..Cross Objectors
vs
1.Jayalakshmi
2.Rengarajan .... Respondents
Cross Objection No.52 of 2022
1.Sellammal (died)
2.R.Muthamilselvan
3.R.Selvarasu
4.T.Senthamarai
5.R.S.Kalaiselvi
6..K.Umarani ... Cross Objectors
vs
1.Jayalakshmi (Died)
2.Rengarajan
3.G.Thenmozhi .... Respondents
C.R.P.(NPD)No.894 of 2003:
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code against the fair and decreetal order dated 28.12.1998 in E.P.No.16 of 1993
in O.S.No.31 of 1981 on the file of Subordinate Judge, Ariyalur.
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
S.A.No.507 of 2004:
Second Appeal filed under Section 100 of the Code of Civil Procedure
Code against the judgment and decree of the Principal District Court at
Perambalur dated 24.02.2003 in A.S.No.205 of 2002, modifying the judgment
and decree of the Subordinate Court, Ariyalur dated 28.12.1998 in O.S.No.25
of 1995.
S.A.No.508 of 2004:-
Second Appeal filed under Section 100 of the Code of Civil Procedure
Code against the judgment and decree of the Principal District Court at
Perambalur dated 24.02.2003 in A.S.No.206 of 2002, modifying the judgment
and decree of the Subordinate Court, Ariyalur dated 28.12.1998 in O.S.No.220
of 1994.
Cross Obejction No.46 of 2022:
Cross Objection filed under Order 42 Rule 22 of Civil Procedure Code
against the Judgment and Decree passed in A.S.No.205 of 2002 dated
24.02.2003 on the file of Principal District Court, Perambalur seeing to modify
the judgment and decree dated 28.12.1998 passed by the Subordinate Court,
Ariyalur in O.S.No.25 of 1995.
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
Cross Objection No.52 of 2022:
Cross Objection filed under Order 42 Rule 22 of Civil Procedure Code
against the Judgment and Decree passed in A.S.No.206 of 2002 dated
24.02.2003 on the file of Principal District Court, Perambalur seeing to modify
the judgment and decree dated 28.12.1998 passed by the Subordinate Court,
Ariyalur in O.S.No.220 of 1994.
CRP (NPD)No.894 of 2003
For Petitioner : Mr.S.Parthasarahy
Senior Counsel for
M/s Sarvabauman Associates
For Respondents : Mr.N.Manokaran
for
Mr.D.Balu Varadharajan
S.A.No.507 of 2004:
For Appellant : Mr.S.Parthasarahy
Senior Counsel for
M/s Sarvabauman Associates
For Respondents : Mr.N.Manokaran
for
Mr.D.Balu Varadharajan
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
S.A.No.508 of 2004:
For Appellant : Mr.S.Parthasarahy
Senior Counsel for
M/s Sarvabauman Associates
For Respondents : Mr.N.Manokaran
for
Mr.D.Balu Varadharajan
Cross Objn.Nos.46 and 52 of 2002:
For Cross Objectors: Mr.N.Manokaran
for
Mr.D.Balu Varadharajan
For Respondents : Mr.S.Parthasarahy
Senior Counsel for
M/s Sarvabauman Associates
COMMON JUDGMENT
The above Common Judgment will dispose of all the aforesaid
proceedings.
2. Second Appeals arise out of two suits for partition viz.,O.S.No.220 of
1994 and O.S.No.25 of 1995 on the file of learned Subordinate Judge at
Ariyalur. Both the suits have chequered career. In order to understand the
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
relationship between the parties, the Genealogy is set forth as hereunder.
GENEALOGICAL TREE
Narayanasamy
_____________________________________________________________
Nallappa Reddiar Ganapathi Reddiar Periyammal
(died on 28.10.1966)
+ +
Subbammal
(died on 13.02.1975) Arunachalam
__________________________
Narayanasamy Reddiar Kamatchi Subbammal(13/2/1975)
(died on 19.01.1964) W/o Nallappa Reddiar
+ Sellammal
_____________________
W1 W2
Sellammal Jayalakkshmi
Son Jaganathan Rangarajan
Daughter (died)
3. Originally, the plaintiff Sellammal filed a suit in O.S.No.172 of 1975.
The relief sought for in the said suit was for declaration of title and for
permanent injunction. Sellammal had married Narayanasamy Reddiar.
Narayanasamy Reddiar was the son of Nallappa Reddiar and Subbammal.
Sellammal claimed 9 items of suit schedule mentioned properties in O.S.No.25
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
of 1995, as her own in O.S.No.172 of 1975. According to her, her mother-in-
law Subbammal executed Settlement Deed in her favour on 12.12.1966 and a
Sale Deed on 16.09.1967. She claimed that by virtue of Settlement Deed and
Sale Deed, she became the absolute owner of the properties.
4. O.S.No.172 of 1975 was dismissed by the trial Court holding that
Subbammal did not have any right over the property to alienate the same in
favour of her daughter-in-law and that the properties belonged to her husband
Nallappa Reddiar. Since properties were owned by Nallappa Reddiar,
Subbammal could not have alienated the same in favour of Sellammal.
5. Aggrieved by the dismissal, the said Sellammal preferred an appeal in
A.S.No.10 of 1978 before the District Court, Trichy. The said Appeal came to
be dismissed on 05.07.1980. Aggrieved by the same, a Second Appeal was
preferred before this Court in S.A.No.1728 of 1980. The said Second Appeal
was dismissed on 25.01.1988. Against these concurrent finding, Sellammal
preferred a Special Leave Petition before the Supreme Court in SLP (Civil)
No.7384 of 1988. The said Special Leave Petition was dismissed as withdrawn
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
on 12.12.1988. In fine, the concurrent finding of the Courts that the properties
belonged to Nallappa Reddiar attained finality.
6. Soon after the dismissal of AS.No.10 of 1978, the second wife and son
of Narayanasamy Reddiar, (who was the husband of Sellammal), filed a suit in
O.S.No.31 of 1981 before the Sub Court, Ariyalur. The said suit was for
recovery of possession from Sellammal of 9 items of properties, over which, she
had claimed declaration of her title in O.S.No.172 of 1975. This suit in
O.S.No.31 of 1981 was dismissed on 19.07.1991 holding that the suit is barred
by virtue of provisions of Benami Abolition Act. Aggrieved by the judgment
and decree in O.S.No.31 of 1981, a regular appeal was preferred in A.S.No.250
of 1992 before the District Court, Trichy. The said appeal came to be allowed
on 18.11.1992. Challenging the judgment and decree of the District Court,
decreeing the suit for recovery of possession, Sellammal filed yet another
Second Appeal before this Court in S.A.No.507 of 1993. The Second Appeal
came to be dismissed by this Court on 02.07.1993.
7. The insatiable appetite for litigation, not satisfying the family
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
members, two more suits came be filed which are the present subject matter of
the present Second Appeals.
8. O.S.No.220 of 1994 was filed by Sellammal, claiming 1/2 share, in
respect of 16 items that stood in the name of Nallappa Reddiar and former
husband Narayanasami Reddiar. Similarly, she filed a suit in O.S.No.25 of 1995
on the file of Subordinate Court, Ariyalur, claiming 2/3 rd share with respect to
the 9 items. I have to make it clear here that the 9 items, which is the subject
matter of O.S.No.25 of 1995, were the subject matter of the proceedings in
O.S.No.172 of 1975 on the file of Subordinate Court, Trichy and O.S.No.781 of
1980 on the file of Subordinate Court, Trichy and S.A.No.1728 of 1980 and
S.A.No.507 of 1993 respectively.
9. Insofar as 16 items of properties, there was no prior litigation between
the parties. O.S.No.220 of 1994 and O.S.No.25 of 1995 came to be decreed by
the learned trial Judge granting 3/4th share in the respective suit schedule
mentioned properties.
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
10. It is pertinent to point out that in the first round of litigation,
Sellammal claimed property through her mother-in-law Subbammal and today
she has abandoned that boat and is claiming her property as a legal heir of her
son Jagannathan, who died on 08.05.1957.
11. This was resisted by the second appellant before me on the ground
that the suit is hit by res judicata, since Sellammal had already made a claim to
the property through Subbammal and lost the case until the High Court and
again, in the second round of litigation with respect to recovery of possession
filed by Rengarajan, son of Narayanasamy Reddiar, which attained finality till
the High Court.
12. The suits having been decreed, regular appeals were preferred in
A.S.Nos.205 and 206 of 2002. It is here that I have to take note of the manner of
disposal by the learned First Appellate Judge. For ready reference, I am
extracting the paragraph Nos.42 and 43:-
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
“ 42. mhpaYhh; rhh;G ePjpkd;wj;jpy; mry; tof;F
vz;.31/81y; gpwg;gpf;fg;gl;l jPh;gg
; pd; efy;
gp.rh.M.8. mjd; kPJ jhf;fy; nra;ag;gl;l Kjy;
Nky;KiwaPl;by; gpwg;gpf;fg;gl;l jPh;g;gpd; efy;
gp.rh.M.9 MFk;. th.rh.M.1, gp.rh.M.8Ys;s
jhth nrhj;Jf;fSf;Fk;, ,e;j chpik
tof;fpYs;s jhth nrhj;Jf;fSk; xnu
nrhj;Jf;fshFk;. vdNt, ,jpypUe;Nj Kd;
jPh;g;Gj; jil fhuzkhf tof;F
ghjpf;fg;gl;Ls;sJ vd;gJ ed;F njhpfpd;wJ.
43. thjpf;Fk;, ehuhazrhkp nul;bahUf;Fk;
gpwe;j kfd; 8.5.57y; ,we;JNghdhh; vd;Wk;,
thjpf;Fk;, ehuhazrhkp nul;bahUf;Fk; gpwe;j
ngz; Foe;ij 2 ½ tajpy; ,we;J NghdJ
vd;Wk;, thjp jdJ tof;Fiuapy; $wpAs;shh;.
Foe;ijfNs gpwf;ftpy;iy vd;gJ
gpujpthjpfspd; tof;fy;y. Mz; Foe;ijAk;;,
ngz; Foe;ijAk; ehuhazrhkp nul;bahUk;
,we;JNghdhh;fs;. 1957y; thjpapd; kfd;
n[fehjd; ,we;J NghapUg;gjhfTk;,
mtDf;Fhpa ghj;jpak; thjpf;F te;jile;Js;sJ
vd;gJ thjpapd; tof;fwpQh; jd; thJiuapy;
$wpdhh;. MjhtJ ¼ gq;F thjpf;F te;jile;jJ
vd;gJ thjpapd; tof;fwpQhpd; thJiuahFk;.
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
Gpujpthjpfspd; tof;fwpQh; jdJ thJiuapy;
thjpf;F jhth nrhj;Jf;fspy; ¼ gq;F nfhLf;f
rk;kjpj;jhh;. Mdhy;;, vOj;J %ykhf
nfhLf;ftpy;iy. ThJiuapd;NghJ rk;kjpj;jhh;.
vdNt, rl;lg;gb tof;F Kd; jPh;gG
; j; jil
fhukhd ghjpf;fg;gl;bUe;jhYk;, thjpf;F jhth
nrhj;jpy; ¼ gq;F fpilf;Fk; vd;W
jPh;khdpf;fpNwd;. VdNt, gpur;rid ,uz;ilAk;
Nkw;fz;lthW jPhk
; hdpf;fg;gLfpwJ.”
13. A reading of the judgment of the lower Appellate Court shows that
Paragraph Nos.2 to 22 are mere summary of pleadings, issues framed by the trial
court, a short summary of the judgment of the trial court and the grounds of
appeal. The learned Judge framed the issues to be decided in paragraph No.23.
From paragraph Nos.24 to 41, he merely extracts the respective arguments and
sets forth the exhibit numbers. In paragraph No.42, he concluded that the claim
of Sellammal is hit by principles of res judicata.
14. Having come to the conclusion, he did not proceed further with the
conclusion arrived at, but on the contrary, as seen from the above extracts, on an
alleged concession that had been made by the counsel for the respective parties,
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
he had allowed the appeals granting 1/4th share.
15. These Second Appeals S.A.Nos.507 and 508 of 2004 were admitted
on the following substantial questions of law:-
1) Whether the lower appellate court is correct in law in
granting a decree having found that the suit is barred by res
judicata only on the basis of an alleged concession by the
counsel for the appellant?
2) Whether the lower appellate court is correct in law iin
rendering a judgment on an alleged admission by the
counsel especially when the entire matter has been found in
favour of the party alleged to have admitted to giving a
share to the other party, whose case has been found against
3) Whether judgment of the lower appellate court which has
failed to follow the procedure prescribed under Order 12
Rule 6 read with Order 23 Rule 3 of the Code of Civil
Procedure is sustainable in law?
16. I heard Mr.S.Parthasarathy, learned Senior Counsel for the appellants
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
and Mr.N.Manoharan, learned counsel for the respondents.
17. At the very out set, Mr.S.Parthasarathy, learned Senior Counsel
submits that no concession had been made by his client before the lower
appellate Court.
18. Mr.N.Manoharan, learned counsel very fairly submits that both the
parties had filed their written arguments before the trial as well as the lower
appellate courts and there was no occasion for the Court to record the alleged
concessions made by the counsels.
19. While recording of matters of what had happened before a Court,
have been held to be final, I have to see that whether the concessions that is
made by the counsel on facts is binding on the parties. It is here that a recent
judgment of the Supreme Court in Himalayan Co.op Group Housing Society
vs Balwan Singh and Others 2015 7 SCC 373 becomes relevant. After
referring to several judgments of Privy Council and the Supreme Court itself,
the Bench came up with the following conclusion:-
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
“ 32. Generally, admissions of fact made by a
counsel is binding upon their principals as long as
they are unequivocal; where, however, doubt
exists as to a purported admission, the Court
should be wary to accept such admissions until
and unless the counsel or the advocate is
authorised by his principal to make such
admissions. Furthermore, a client is not bound by
a statement or admission which he or his lawyer
was not authorised to make. Lawyer generally has
no implied or apparent authority to make an
admission or statement which would directly
surrender or conclude the substantial legal rights
of the client unless such an admission or statement
is clearly a proper step in accomplishing the
purpose for which the lawyer was employed. We
hasten to add neither the client nor the Court is
bound by the lawyer’s statements or admissions as
to matters of law or legal conclusions. Thus,
according to generally accepted notions of
professional responsibility, lawyers should follow
the client’s instructions rather than substitute their
judgment for that of the client. We may add that in
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
some cases, lawyers can make decisions without
consulting client. While in others, the decision is
reserved for the client. It is often said that the
lawyer can make decisions as to tactics without
consulting the client, while the client has a right to
make decisions that can affect his rights.”
20. This view has been reiterated yet again in Director of Elementary
Education Odisha & Others vs Pramod Kumar Sahoo. 2019 10 SCC 674.
21. These two judgments of the Supreme Court very categorically states
while there is an implied authority to a limited extent still no counsel has the
authority to take a decision which will affect the rights and liabilities of his
clients. If the Court had come to the conclusion that the counsel had conceded a
share to Sellammal, it would have been appropriate if it had directed either
party to file a Memo of Compromise. This would be in line with Order 23 of
Civil Procedure Code.
22. In fact, as I pointed out above, apart from recording that the counsel
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
for the appellant had conceded to 1/4th share and it has been accepted by the
learned counsel for the respondents, there is nothing on record to show that
such concession was supported either by the clients or written instructions of
the parties.
23. I wanted to independently analyse to see whether de hors the
concession, I could still deal with the Second Appeals. On going through the
judgments of the lower appellate Court, I find that the entire appeal had been
disposed of in a cryptic manner as set forth in Paragraph Nos. 42 and 43. The
first appellate court, dealing with an appeal under Section 96 of the Civil
Procedure Code, is the last Court of facts. While dealing with the question of
facts, it is expected that the Court marshall the evidence and come to a
conclusion independently of the concession. When the trial court has taken
pains to go through the entire documents and come to the conclusion, the lower
appellate court ought to have independently analysed the conclusion and
thereafter varied the decree.
24. Further, I find an inherent contradiction in the judgment of the lower
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
appellate court. Having come to the conclusion that the suit is hit by the
principles of res judicata, the court below on the basis of concession, should
not have decreed the suit. It is a fundamental principle of law that res judicata
is not directed against the parties but it is an injunction against the Court. When
the court has come to the conclusion that the entire proceedings had been
concluded by virtue of judgment and decree in O.S.Nos.172 of 1975 and 31 of
1981, then it could not have recorded the concession and allowed the appeal. In
other words, the judgment does not follow the logic embedded in it. The
reasoning of the Court that it is hit by res judicata should have resulted in only
one conclusion that the appeals should have been allowed. Having come to the
conclusion that it is suffering an order of injunction by virtue of Section 11, the
Court ought not to have proceeded further and allowed the appeals on the basis
of the alleged concession said to have been made by the counsel.
25. It is here the judgment that has been cited by Mr.N..Manokaran,
learned counsel becomes relevant. Three Judges from the Supreme Court in
Santoshi Hazari vs Purushottam Tiwari (2001) 3 SCC 179 had dealt with the
manner in which a first appeal must be disposed of. For ready reference, I am
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
extracting the relevant paragraph;
“ 15. A perusal of the judgment of the trial Court shows
that it has extensively dealt with the oral and
documentary evidence adduced by the parties for
deciding the issues on which the parties went to trial. It
also found that in support of his plea of adverse
possession on the disputed land, the defendant did not
produce any documentary evidence while the oral
evidence adduced by the defendant was conflicting in
nature and hence unworthy of reliance. The first
appellate Court has, in a very cryptic manner, reversed
the finding on question of possession and dispossession
as alleged by the plaintiff as also on the question of
adverse possession as pleaded by the defendant. The
appellate Court has jurisdiction to reverse or affirm the
findings of the trial Court. First appeal is a valuable
right of the parties and unless restricted by law, the
whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate
Court must, therefore, reflect its conscious application
of mind, and record findings supported by reasons, on
all the issues arising along with the contentions put
forth, and pressed by the parties for decision of the
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
appellate Court. The task of an appellate Court
affirming the findings of the trial Court is an easier
one. The appellate Court agreeing with the view of the
trial Court need not restate the effect of the evidence or
reiterate the reasons given by the trial Court;
expression of general agreement with reasons given by
the Court, decision of which is under appeal, would
ordinarily suffice (See Girijanandini Devi & Ors. Vs.
Bijendra Narain Choudhary, AIR 1967 SC 1124). We
would, however, like to sound a note of caution.
Expression of general agreement with the findings
recorded in the judgment under appeal should not be a
device or camouflage adopted by the appellate Court
for shirking the duty cast on it. While writing a
judgment of reversal the appellate Court must remain
conscious of two principles. Firstly, the findings of fact
based on conflicting evidence arrived at by the trial
Court must weigh with the appellate Court, more so
when the findings are based on oral evidence recorded
by the same presiding Judge who authors the judgment.
This certainly does not mean that when an appeal lies
on facts, the appellate Court is not competent to reverse
a finding of fact arrived at by the trial Judge. As a
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
matter of law if the appraisal of the evidence by the
trial Court suffers from a material irregularity or is
based on inadmissible evidence or on conjectures and
surmises, the appellate Court is entitled to interfere
with the finding of fact (See Madhusudan Das Vs. Smt.
Narayani Bai & Ors., AIR 1983 SC 114). The rule is -
and it is nothing more than a rule of practice - that
when there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon the
credibility of witnesses, then unless there is some
special feature about the evidence of a particular
witness which has escaped the trial Judges notice or
there is a sufficient balance of improbability to displace
his opinion as to where the credibility lies, the
appellate Court should not interfere with the finding of
the trial Judge on a question of fact.(See Sarju Pershad
Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh &
Ors., AIR 1951 SC 120). Secondly, while reversing a
finding of fact the appellate Court must come into close
quarters with the reasoning assigned by the trial Court
and then assign its own reasons for arriving at a
different finding. This would satisfy the Court hearing a
further appeal that the first appellate Court had
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C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
discharged the duty expected of it. We need only remind
the first appellate Courts of the additional obligation
cast on them by the scheme of the present Section
100 substituted in the Code. The first appellate Court
continues, as before, to be a final Court of facts; pure
findings of fact remain immune from challenge before
the High Court in second appeal. Now the first
appellate Court is also a final Court of law in the sense
that its decision on a question of law even if erroneous
may not be vulnerable before the High Court in second
appeal because the jurisdiction of the High Court has
now ceased to be available to correct the errors of law
or the erroneous findings of the first appellate Court
even on questions of law unless such question of law be
a substantial one.
26. In the light of the settled position of the law laid down by the three
Judges of the Supreme Court set forth above, I am now faced with an
unfortunate decision of having to set aside the judgment of the court below and
remitting it for fresh disposal.
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
27. I preface the word “unfortunate” because the suit properties have
been under the cloud of litigation for the past 48 years. When the Court is
dealing with the matter which has been under the cloud of litigation for nearly
half a century, the least that is expected is that the lower appellate court could
have bestowed some attention prior to the cryptic manner of disposal of the
appeal.
28. In the light of the above discussions, the substantial questions of law
are answered in favour of the appellant. The judgment and decree in
A.S.Nos.205 and 206 of 2002 on the file of Principal District Court, Perambalur
dated 24.02.2003 are hereby set aside. The matter is remanded to the lower
appellate court to dispose of the appeals afresh in accordance with the
principles laid down by the Supreme Court in Santoshi Hazari vs
Purushottam Tiwari (2001) 3 SCC 179. Both the parties are granted liberty to
file additional documents, if any. All points are available for both sides to argue
before the lower appellate court.
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
29. The learned Principal District Judge, Perambalur is requested to take
up the appeals on priority basis, after the parties file their application under
Order 41 Rule 27 of Civil Procedure Code and decide the appeals within a
period of four months from the date of receipt of a copy of this order.
30. NOTE TO OFFICE:
(i) Records that have been received from the lower
appellate Court must be sent back immediately to enable the first
appellate court to deal with the issue.
(ii) The original documents filed in CMP No.19212 of
2023 may be returned to the learned counsel after getting
necessary endorsement.
31. C.R.P.NPD No.894 of 2003:
This Civil Revision Petition arises against the order dismissing the
execution petition filed to execute O.S.No.31 of 1981 on the file of Subordinate
Court, Ariyalur. As noted in the Judgment in the Second Appeals, O.S.No.31
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
of 1981 was filed by the civil revision petitioner for recovery of possession on
the strength of the findings given in O.S.No.172 of 1975 on the file of
Subordinate Court, Ariyalur. O.S.No.31 of 1981 was decreed till this Court in
S.A.No.507 of 1993.
32. In the light of the decree in O.S.No.220 of 1994 and O.S.No.25 of
1995, E.P.No.16 of 1993 had been dismissed on the ground that a decree of
recovery of possession cannot be executed against a co-owner. Since I am
remanding the matter to the lower appellate Court for its fresh decision, this
Civil Revision Petition is allowed. The Execution Petition is restored on to the
file of learned Subordinate Court at Ariyalur.
33. The learned Subordinate Judge, Ariyalur shall determine the fate of
the execution petition after disposal of A.S.No.205 and 206 of 2002 on the file
of Principal District Court, Perambalur.
34. To be clear if the first appeals in A.S.Nos.205 and 206 of 2002 are
allowed and O.S.Nos.220 of 1994 and 25 of 1995 on the file of Subordinate
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
Court, Ariyalur are dismissed, then the execution petition will be proceeded in
accordance with law. If A.S.Nos.205 and 206 of 2002 are dismissed, confirming
the judgment and decree in O.S.Nos.220 of 1994 and 25 of 1995 the execution
petition shall be closed.
35. Cross Objection Nos.46 and 56 of 2022 are disposed of since Second
Appeals are allowed and remanded.
36. In the result,
(i) CRP No.894 of 2003 is allowed;
(ii) S.A.Nos.507 and 508 of 2004 are allowed and the
matter is remanded to the lower appellate court to dispose
of the appeals A.S.Nos.205 and 206 of 2002 afresh in
accordance with the principles laid down by the Supreme
Court in Santoshi Hazari vs Purushottam Tiwari (2001)
3 SCC 179.
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
(iii) Cross Objection Nos.46 and 52 of 2022 are disposed
of since the second appeals are allowed and remanded to
the lower appellate court.
(iv) CMP No.19212 of 2023 : Registry is directed to
return the original documents filed to the learned counsel
after getting necessary endorsement. With the above
direction, CMP No.19212 of 2023 is disposed of.
No costs.
08.09.2023
Index : Yes/No
Internet : Yes/No
sr
To
1. The Subordinate Court, Ariyalur
2. The Principal District Court, Perambalur
https://www.mhc.tn.gov.in/judis
C.R.P.NPD No.894 of 2003, S.A.Nos.507, 508 of 2004 and Cross Objection Nos.46 and 52 of 2022
V.LAKSHMINARAYANAN,J.,
sr
C.R.P.NPD No.894 of 2003, S.A.Nos.507,
508 of 2004 and Cross Objection Nos.46
and 52 of 2022
08.09.2023
https://www.mhc.tn.gov.in/judis
