Madras High Court
P.R.Periannan (Died) ... 1St vs The Thasildhar on 12 September, 2023
SA(MD)No.139 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 12.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.139 of 2018
and
C.M.P.(MD)No.3731 of 2018
P.R.Periannan (Died) ... 1st Appellant/ 1st Plaintiff
Mahendran .... Appellant/2nd Appellant /2nd Plaintiff
Vs.
1.The Thasildhar
Devakottai Taluk Office,
Devakottai Taluk,
Sivagangai District.
2.The Revenue Divisional Officer,
Devakottai Taluk,
Sivagangai District.
3.The District Collector,
Collector Office,
Sivagangai District. ... Respondents /Respondents /Defendants
1/18
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SA(MD)No.139 of 2018
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 22.02.2018, made in
A.S.No.19 of 2017, on the file of the Subordinate Judge, Devakottai,
confirming the judgment and decree, dated 27.03.2017, passed by the
District Munsif, Devakottai in O.S.No.138 of 2014.
For Appellant : Mr.VR.Shanmuganathan
For Respondents : Mr.Senthil Ayyanar
Government Advocate
JUDGMENT
The appellant herein is the plaintiff and the respondents herein
are the defendants before the Court below.
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The brief facts, leading to the filing of this Second Appeal, are
as follows:-
Originally the suit was instituted by one Periannan, and after his
demise his son was impleaded as second plaintiff. According to the plaint
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SA(MD)No.139 of 2018
pleading, originally the suit property belongs to the plaintiffs and their
predecessor in title and their ownership could be inferred by the registered
mortgage deed executed by one Karuppaiah Ambalam on 03.10.1961.
According to the plaintiffs, in the said mortgage deed, a reference was
made about the ownership of the plaintiff's predecessor in title over the suit
property. It is the further submission of the plaintiff that, they have
perfected title by way of adverse possession. Even the revenue records in
respect of the suit property stands in the name of deceased – first plaintiff.
According to the plaintiff, since the defendant refused to issue patta in the
name of the deceased first plaintiff, he moved a writ petition in W.P.
(MD)No.19267 of 2011 and got direction against the defendants, to
consider the application made by the plaintiff. However, without
conducting any proper enquiry, vide proceedings, dated 18.07.2014, the
defendants refused to issue patta in the name of the plaintiff. This plaintiff
would submit that they have been in continuous physical possession and
enjoyment of the suit property. Therefore, prayed to declare that the suit
property belongs to them and for other reliefs.
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SA(MD)No.139 of 2018
4. The said suit was resisted by the defendants by contending
that, the suit property in S.No.141/6, with an extend of 0.01.37 Hectare is
classified as “vacant site”. It is the further submission of the defendants
that on western side of the vacant site, 10 feet common passage exist. This
defendants would further submit that since the suit property classified as
the “vacant site”, no patta could be granted to the plaintiff and they would
further submit that a portion of the suit property was also used as the public
passage. Therefore, this defendants prayed to dismiss the suit.
5. Before the trial Court, the suit was disposed of along with
another suit in O.S.No.54 of 2015.
6. Before the trial Court, on behalf of the plaintiff one witness
was examined as P.W.1 and marked 11 documents as Ex.A1 to Ex.A11. On
behalf of the defendants, 3 witnesses were examined as D.W.1 to D.W.3
and 18 documents were marked as Ex.B1 to Ex.B18. As third party
documents, 3 documents were marked as Ex.X1 and Ex.X2. Two
documents were marked as Court documents in Ex.C1 and Ex.C2.
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SA(MD)No.139 of 2018
7. After considering the pleadings, material on record and
evidence, the trial Court has dismissed the suit on the ground that after the
demise of the first plaintiff's, the sister of the second defendant were not
impleaded as a party to the suit. Hence, on the ground of non joinder of
necessary party, the suit was dismissed.
8. Aggrieved with the order of the trial Court, the plaintiff /
appellant has filed an appeal in A.S.No.19 of 2017. However, the first
Appellate Court has confirmed the trial Court decree and dismissed the
appeal on 02.02.2018.
9. Against the concurrent finding, the plaintiff / appellant has
come up before this Court by way of this Second Appeal.
10. While filing the Second Appeal, the appellant has proposed
the following substantial questions of law:
“(a) Whether the Court below lost its sight as to well
settled principle of law that Grama Natham land never vest with
Government and the same vest with person who is in the possession
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SA(MD)No.139 of 2018
and enjoyment and in the instant case with appellant?
(b) Whether the Courts below are justified in placing the
burden of proof on the appellant /plaintiff in as much as it is
admitted that the suit property is Grama Natham and that the same
is in the possession and enjoyment of plaintiffs ancestrally more
particularly as it was admitted by the village administrative officer
D.W.2 in his evidence, which admission is the best evidence?
(c) Whether the lower appellate Court is justified in not
framing proper points for determination as contemplated under
Order 41 Rule 31 of C.P.C?
(d) Whether the judgment and decree of Courts below are
sustainable in as much as they are contrary to the materials on
record and based on misleading of evidence and documents?
(e)Whether the Courts below erred in dismissing the suit
in O.S.No.138 of 2014 filed by the plaintiff despite they have proved
their case by leading sufficient oral and documentary evidence and
despite the defendants fail to prove their defence either by oral or
documentary evidence?
(f) Whether the Courts below are justified coming to a
conclusion that suit property belong Government based on wrong
classification of lands as puramboke more particularly when the
suit schedule property is Grama Natham land and Government had
not produced any document to prove their title. It is settled
principle of law that Government cannot stand on its own wrong
classification of lands as puramboke is a settled principle?
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SA(MD)No.139 of 2018
(g)Whether the Courts below are right in rejecting Ex.A1
without properly drawing a presumption under Sections 76 and 90
of Indian Evidence Act?
11. This Court, after considering either side submissions, deem it
appropriate to admit the Second Appeal on the above substantial questions
of law.
12. Though there were 7 substantial question of law, the learned
counsel for the appellant would very much focused his argument on the
basis of the provisions of Order 41 Rule 31 C.P.C. The learned counsel for
the appellant would submit that, the first appeal is a valuable right to the
appellant and that all the question of fact and law decided by the trial Court
are open for reconsideration before the First Appellate Court. Whereas, the
first Appellate Court has not framed any issues except the omnibus issue of
whether appeal is to be allowed or not. He would further contend that even
while arriving at a finding, has not given reason to issue involved in this
case. The learned counsel for the appellant would further submit that, the
first Appellate Court took a special issue and has decided the appeal against
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SA(MD)No.139 of 2018
the appellant, without providing any opportunity to the appellant. Hence,
prayed to allow this Appeal.
13. Per contra, the learned Government Advocate would contend
that according to the classification of the suit property, it is the Government
vacant site, and it is in the control of the Government. Therefore, would
submit that the plaintiff is not entitled for any declaration.
14. I have given my anxious consideration to the either side
submissions.
15. The learned counsel for the appellant would invite the
attention of the definition in respect of the Grama Natham, and the duties
and responsibilities of the Government as to how they must deal with the
Grama Natham property by referring the judgment of this Court reported in
2020-4-SCC-313 (Malluru Mallappa (D) V. Kuruvathappa). It is his
further submission that the defendant has not specifically disputed in the
written statement about the long possession of the plaintiff, therefore, as
per Judgment reported in AIR-1964-0-AIR(SC)-538 (Badat and Co.,
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SA(MD)No.139 of 2018
Bombay V. East India Trading Co.,), the suit is to be decreed. The relevant
portion of the judgment is as follows-
“These three rules form an integrated code dealing with
the manner in which allegations of fact in the plaint should be
traversed and the legal consequences flowing from its non-
compliance. The written-statement must deal specifically with
each allegation of fact in the plaint and when a defendant denies
any such fact, he must not do so evasively, but answer the point of
substance. If his denial of a fact is not specific but evasive, the
said fact shall be taken to be admitted. In such an event, the
admission itself being proof, no other proof is necessary. The
first paragraph of r. 5 is a re-production of O.XIX,R. 13, of the
English rules made under the Judicature Acts. But in mofussil
Courts in India, where pleadings were not precisely drawn, it was
found in practice that if they were strictly construed in terms of
the said provisions, grave injustice would be done to parties with
genuine claims. To do 'Justice between those parties, for which
Courts are intended, the rigor of r. 5 has been modified by the
introduction of the proviso thereto. Under that proviso the Court
may, in its discretion, require any fact so admitted to be proved
otherwise than by such admission. In the matter of mofussil
pleadings, Courts, presumably relying upon the said proviso,
tolerated more laxity in the pleadings in the interest of justice. But
on the Original Side of the Bombay High Court, we are told, the
pleadings are drafted by trained lawyers bestowing serious
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SA(MD)No.139 of 2018
thought and with precision. In construing such pleadings the
proviso can be invoked only in exceptional circumstances to
prevent obvious injustice to a party or to relieve him from the
results of an accidental slip or omission, but not to help a party
who designedly made vague denials and thereafter sought to rely
upon them for non- suiting the plaintiff. The discretion under the
proviso must be exercised by a Court having regard to the Justice
of a cause with particular reference to the nature of the parties,
the standard of drafting obtaining in a locality, and the traditions
and conventions of a Court wherein such pleadings are filed. In
this context the decision in Tildestey v. Harper(1) will be useful.
There. in an action against a lessee to set aside the lease granted
under a power the statement of claim stated that the donee of the
power had received from the lessee a certain sum as a bribe, and
stated the circumstances; the statement of defence denied that sum
had been given, and denied each circumstance, but contained no
general denial of a bribe having been given. The Court held,
under rules corresponding to the aforesaid rules of the Code of
Civil Procedure, that the giving of the bribe was not sufficiently
denied and therefore it must be deemed to have been admit- ted.
Fry J. posed the question thus : What is the point of substance in
the allegations in the statement of claim ? and answered it as
follows :
"The point of substance is undoubtedly that a bribe was
given by Anderson to Tildesley, and that point of substance is
nowhere met............ no fair and substantial answer is, in my
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opinion, given to the allegation of substance, namely that there
was a bribe. In my opinion it is of the highest importance that this
rule of pleading should be adhered to strictly, and that the Court
should require the Defendant, when putting in his statement of
defence, and the Plaintiff, when replying to the allegations of the
Defendant, to state the point of substance, and not to give formal
denials of the allegations contained in the previous pleadings
without stating the circumstances. As far as I am concerned, I
mean to give the fullest effect to that rule. I am convinced that it is
one of the highest benefit to suitors in the Court."
(Emphasis supplied by this Court)
16. The learned counsel has also relied upon the judgment
reported in 2012-2-CTC-315 (The State of Tamil Nadu V. Madasami) and
2012-1-MLJ-369(Dharmapura Adhinam Mutt V. Adhinakartha
Raghavan) about the character of the Natham land.
17. However, the main focus of the learned counsel for the
appellant is the non compliance of the provision of Order 41 Rule 31 C.P.C.
The provision Order 41 Rule 31 C.P.C. mandates, the first Appellate Court
to reappreciate the evidence of the parties so as to arrive at a conclusion in
respect of each points. The learned counsel would also further submit that
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SA(MD)No.139 of 2018
it is the duty of the First Appellate Court to state the points for
determination, the decision there on and the reason for decision.
18. The learned counsel for the appellant invite the attention of
this court in respect of the judgment of the first Appellate Court. This
Court has carefully perused the judgment of the first Appellate Court. The
only point considered by the first Appellate Court is whether the appeal in
A.S.No.19 of 2017 is to be allowed or not.
19. At this juncture, it is relevant to refer the judgment of the trial
Court. Wherein the trial Court has framed as many as three issues. Among
the three issues, there is no issue in respect of the maintainability of the
suit, in the absence of consequential relief. At this juncture, it is relevant to
refer the judgment of the Hon'ble Supreme Court reported in 2020-4-
SCC-313 (Malluru Mallappa (D) V. Kuruvathappa). The relevant portion
of the judgment is as follows-
“14. It is a settled position of law that an appeal
is a continuation of the proceedings of the original court.
Ordinarily, the appellate jurisdiction involves a re-
hearing on law as well as on fact and is invoked by an
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SA(MD)No.139 of 2018
aggrieved person. The first appeal is a valuable right of
the appellant and therein all questions of fact and law
decided by the trial court are open for re-consideration.
Therefore, the first appellate court is required to address
itself to all the issues and decide the case by giving
reasons. The court of first appeal must record its findings
only after dealing with all issues of law as well as fact and
with the evidence, oral as well as documentary, led by the
parties. The judgment of the first appellate court must
display conscious application of mind and record findings
supported by reasons on all issues and contentions [see:
Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.
3, Madhukar and others v. Sangram and Others4, B. M.
Narayana Gowda v. Shanthamma (Dead) By Lrs. and
Another5, H. K. N. Swami v. Irshad Basith (Dead) By Lrs.6
and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy
Chettiar7]. (2001) 3 SCC 179 (2001) 4 SCC 756 (2011) 15
SCC 476 (2005) 10 SCC 243 (1980) 4 SCC 259”
(Emphasis supplied by this Court)
20. However, the Hon'ble Supreme Court, in the judgment
reported in 2006-2-MLJ-63 (G.Amalorpavam V. R.C.Diocese of
Madurai), has held as follows-
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“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
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considerations appearing on both sides is clearly manifest
by the perusal of the judgment of the lower appellate court,
it would be a 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)
21. As per the ratio of the above judgment, though no specific
issue has been framed, if on perusal of the judgment, if the first Appellate
Court has answered all the issues in due compliance to Order 41 Rule 31
C.P.C., mere non framing of the issue or non framing of points for
consideration become insignificance.
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22. Let us proceed to analyse the facts of this case, keeping in
mind with the above legal position. If we look at the finding of the Court
below, this Court could not find any iota of appreciation of fact. It is a well
settled proposition of law that the first Appellate Court is the last Court to
decide the factual aspects of the case. It is the duty of the first Appellate
Court to decide once again all the issues involved, in the issue based upon
available facts and with law. To put it differently, the first Appellate Court
can reconsider all the questions of fact and law dealt by the trial Court.
23. But, this Court could not find any exercise of such duty by
the first Appellate Court. Therefore, this Court is of the firm view on the
ground of non compliance of the provision under Order 41 Rule 31 C.P.C,
the decree of the first Appellate Court is liable to be set aside.
24. In view of the above finding, this Court has not gone into the
other aspects, and left the same open. Therefore, the order passed by the
First Appellate Court is liable to be set aside and and accordingly set aside.
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25. Hence, the instant Second Appeal is allowed. The appeal is
remitted back to the first Appellate Court to decide the appeal afresh
according to law in due compliance to the provision of Order 41 Rule 31
of C.P.C., within a period of three months from the date of receipt of copy
of this judgment. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
12.09.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The Subordinate Judge,
Devakottai.
2. The District Munsif,
Devakottai
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.139 of 2018
C.KUMARAPPAN.,J.
Ls
Judgment made in
S.A.(MD)No.139 of 2018
12.09.2023
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