IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.82 of 2010 1. Neela 2. Suseela 3. Lakshmi Ammal .. Appellants/ Plaintiff vs. 1. Govindaraj Goundar 2. Jayagopal .. Respondents/ Defendants This second appeal is focussed u/s 100 of CPC 1908 as against the judgment and decree dated 26.06.2009 in A.S.No.94 of 2006 on the file of the Subordinate Judge, Ranipet, Vellore District, reversing the judgment and decree dated 28.06.2006 in O.S.No.328 of 2004 on the file of the District Munsif-cum-Judicial Magistrate No.1, Walajapet. For Appellants : Mr.V.Raghavachari for Mr.S.N.Kirubanandam For Respondents : Mr.A.Seshan J U D G M E N T This second appeal is focussed by the original plaintiffs, animadverting upon the judgement and decree dated 26.06.2009 passed in A.S.No.94 of 2006 by the Subordinate Judge, Ranipet, Vellore District, reversing the judgment and decree of the learned District Munsif-cum-Judicial Magistrate No.1, Walajapet in O.S.No.328 of 2004. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ (i) to direct the plaintiffs right and title to the suit property. (ii) to direct the defendants to deliver the possession of the suit property and if necessary the same may be done through the process of court. (iii) to direct the defendants to pay the suit of Rs.1,600/- by way of damages for the unlawful use and occupation for the suit property and they may be directed to pay the sum of Rs.100/- monthly till the delivery of possession is handed over to the plaintiff; and (iv) for costs. (Extracted as such) (b) The written statement was filed by the second defendant resisting the suit and the same was adopted by the first defendant. (c) Whereupon the trial Court framed the issues. (d) During trial, the first plaintiff-Nila examined herself as P.W.1 and Exs.A1 to A14 were marked. On the side of the defendants, one Mr.Jayagopi was examined as D.W.1 and Exs.B1 to B7 were marked. Exs.B8 to B10 were marked at the first appellate stage. (e) Ultimately the trial Court decreed the suit, as against which appeal was filed by the defendants. Whereupon, the appellate Court reversed the findings of the trial Court and dismissed the suit. 3. Challenging and impugning the judgment and decree of the first appellate Court, the plaintiff filed this Second Appeal on various grounds and also suggesting the following substantial questions of law: "(a) Whether the Lower Appellate Court correct in reversing the well considered judgment and decree of the Trial Court against the evidence, of Exhibit A13 and Exhibit A2 and documents along with evidence PW1 and DW1? (b) Whether the Lower Appellate Court correct in holding that the appellants are not in possession of the suit property against the evidence of D1? (c) whether the Appellate Court correct in holding that the suit property was in possession and enjoyment against the evidence of PW1 and https://hcservices.ecourts.gov.in/hcservices/ tax receipt, sketch, namely exhibit A3 to A6 and Exhibit A13? (d) Whether the Appellate Court is correct in holding that the exhibit B13 states that the plaintiff sold the landed property situated in Survey No.713? (e) Whether the Lower Appellate Court is correct in rejecting the certificate issued by the TNEB as exhibit A2 which categorically proves that the plaintiff is in possession of the suit property prior to sale to the defendant? (f) Whether the Lower Appellate Court is correct in shifting the burden of proof on the plaintiff against the provisions of Sec 102, 103 and 104 Indian Evidence Act, 1872?" (extracted as such) 4. The learned counsel for the appellants/plaintiffs, placing reliance on the grounds of Second Appeal and also the relevant portions of the typed set of papers, would develop his argument to the effect that as per Ex.B1-the sale deed dated 27.06.1993, the deceased first plaintiff Munusamy, whose children are D2 to D4, sold four items of properties in S.No.713 of Milangaikuppam Village, retaining the remaining portions in the same S.No.713 with him including the suit property. While so, when the first plaintiff wanted to go to Bangalore to meet his relatives, the defendants were allowed to occupy the suit property as tenants for a monthly rent of Rs.50/- However, subsequently, when the plaintiffs wanted the property back, the defendants had a volte face and turned turtle and pleaded as though the ground on which the superstructure, namely the house stands was already sold and that the superstructure was constructed by the defendants thereon. Ex.B1-the sale deed itself emerged only on 27th June 1993, whereas, the house referred to in the schedule of the property was constructed as per the approved plan - Ex.A13 during the year 1982 itself and during 1985 the house tax was paid for the said building and in such a case, the question of the defendants having constructed the building does not arise. However, just to grab the property the defendants have dished out various pleas which are antithetical to their own oral and documentary evidence. The trial Court appropriately appreciated the evidence and arrived at a just conclusion, whereas, the appellate Court without any basis simply upset the reasoned findings of the trial Court and dismissed the suit warranting interference in the Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ 5. Whereas, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned counsel for the defendants would advance his arguments, which could tersely and briefly be set out thus: After purchasing the four items as per Ex.B1 by the first defendant from the deceased first plaintiff, the first defendant raised the house referred to in the schedule of the plaint at his own expense on the said property purchased and he is the owner of it. Exs.A3 to A13 are not authentic documents and those were not proved in the way known to law. The trial Court simply took the versions of the plaintiffs for gospel truth and decreed the suit and the appellate Court correctly set aside the findings of the trial Court and dismissed the original suit warranting no interference in the Second Appeal. 6. On hearing both sides, I am of the considered view that the following substantial questions of law have to be framed: (1) In the absence of having got the suit property located precisely, whether the Courts below were justified in rendering their respective judgments and that too without noting on which item out of the four items contemplated in Ex.B1, allegedly the superstructure was constructed by the defendants? (2) Whether Exs.A3 and A13 were proved in the way known to law? (3) Whether there is any perversity or illegality in the judgement passed by the first appellate Court? 7. All these substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 8. Certain criteria are found set out in the judgment of the Hon'ble Apex Court reported in (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], relating to entertaining of Second Appeal certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a https://hcservices.ecourts.gov.in/hcservices/ substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 9. A mere poring over and perusal of the aforesaid excerpt including the whole judgment, would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below failed to apply the correct law in analysing the evidence, the question of interference in the Second Appeal does not arise. Hence it is just and proper to find out as to whether the Courts below properly applied the concept of onus of proof and analysed the evidence with a fine-toothed comb. I am of the considered opinion that in this case both sides even though adduced oral and documentary evidence, they miserably failed to precisely place before the Court as to where actually the suit property is found located. Hence, in these circumstances I would like to extract hereunder the schedule of property as found in the plaint: "SCHEDULE OF PROPERTY In Vellore District, Walajapet Taluk in MILANGAIKUPPAM VILLAGE H/O KEERASATHU VILLAGE Survey field number 713 & 708/6 part North of Street, East of Odai, West of Defendant's land, East of Vasantha and Rathinam's property a terraced house with compound wall gate with a length of nearly 50 feet and with a breadth of 15 feet along with backyard and trees thereon Electric Service connection Value of the property Rs.30,000/-" 10. It would convey the idea as though the suit property is situated in S.No.713 as well as in S.No.708/6. Ex.A13 - the https://hcservices.ecourts.gov.in/hcservices/ approved plan relating to the said building also would refer to the same survey numbers. Whereas, in Ex.B1, the following items of properties are found described in the schedule as the subject matter of sale. Hence, the said schedule is extracted hereunder: "brhj;J tptuk; muf;nfhzk; gjpt[ khtl;lk; nrhsp';fg[uk; rg; o thyhrh tl;lk; fpiurhj;J fpuhk fzf;fjhf;fy; vd; gpJuhh;rpjk; vd; RthjPd mDgtj;jpy; tUk; g[";ir rh;nt vz; 713 vGE}j;jp gjpK:zpy; g{uh 2/77 brz;oy; Xilg[uk; nghf;Ff;F (bj) (fp) rpj;J} h; nghFk; rptpy; nuhl;Lf;F (t) b$anty; fpuaj;Jf;Fk; cd; fpuaj;Jf;Fk; (nk) ,jd; kj;jpapy; jis 1f;F 0/42 brz;L i& bek;ghpy; (bj) fpzj;Jf;F (nk) b$anty; fpuaj;Jf;F (t) cd;Dila fpiuaj;Jf;F (fp) ,jd; kj;jpapy; jis 1f;F 0/15 brz;Lk; i& bek;ghpy; rptpy; nuhl;Lf;F (t) b$anty; fpuaj;Jf; (bj) (nk) cd;Dila fpuaj;Jf;F (fp) ,jd; kj;jpapy; jis 1f;F 0/10 brz;Lk; i& bek;ghpy; Xilf;F (bj) b$fehjd; fpuaj;Jf;F (nk) b$anty; fpuaj;Jf;F (t) cd; fpuaj;Jf;F (fp) ,jd; kj;jpapy; 0/10 brz;oy; i&a[s;s fpzpw;wp 1-2 ghfKk;@ 11. It is therefore clear from the aforesaid excerpts, that the entire S.No.713 totally is measuring an extent of 2 acres and 77 cents and out of that as four patches or items, so to say an extent of 43 cents, 15 cents, 10 cents and 10 cents, totally 68 cents were purchased by D1 from the first plaintiff. 12. When this Court raised the querry as according to the defendants in which of the four items the suit house was allegedly constructed by the defendants, there is no precise answer. However, the learned counsel for the defendants would submit that the suit property, i.e., the building was constructed after Ex.B1 of the year 1993 by the defendants by spending their own money and it is situated in one among the four items. No doubt, the initial burden is on the plaintiffs to prove that the said building is not situated within the areas covered under Ex.B1. 13. The learned counsel for the plaintiffs would submit that Ex.A13 – the sketch was obtained even in the year 1982 not for the purpose of simply being kept in idleness, but for the purpose of being implemented and in concinnity with the same, the building was raised and during the year 1985, even the house tax was paid and for it the electricity connection also was obtained as revealed by Ex.A2 in the name of the plaintiff. However, the learned counsel for the defendants would challenge and impugn those documents, https://hcservices.ecourts.gov.in/hcservices/ which according to him were not conclusively proved and the probative value of them are dubious and questionable. There is also one other fact to be noted that the plaintiffs could not produce precisely any lease deed or counterfoil of any rent receipt, to demonstrate and display the relationship between the plaintiffs and the defendants as that of the landlords and the tenants. However, the second plaintiff after the death of the first plaintiff examined himself as P.W.1. As on date, the evidence of P.W.1 would remain only his ipsi dixit, but on the other hand, if the suit property is properly located and it is found to be not situated in any one of the four items as contained in Ex.B1, then obviously and axiomatically the statement of P.W.1 would gain strength and Exs.A3, A5 and A13 also could be meaningfully read so as to buttress and fortify the plaintiffs' case. 14. There is also one other feature that has to be highlighted at this juncture. The plaintiffs could have very well summoned the Panchayat Union concerned to speak about the factum of the building have been assessed to tax even in the year 1985 and that piece of evidence would torpedo and pulverise the contention as put forth on the side of the defendants that only after 1993 the said building was raised by the defendants. Both the Courts below also never concentrated on that line. When the best evidence is available, it is better to secure such evidence and thereafter placing reliance on that render judgment. Hence, I am of the view that instead of deciding the case on patchy, sketchy,tenuous, weak, meek and bleak evidence, it is better to secure before the Court the best evidence which is available with public offices and thereafter render the judgment based on such best evidence. 15. Wherefore, the substantial question of law No.1 is decided to the effect that in the absence of getting the suit property located, precisely the Courts below were not justified in rendering their respective judgments and that too without noting in which item out of the four items contemplated in Ex.B1, allegedly the superstructure is existing as per the defendants. 16. The substantial question of law No.2 is decided to the effect that Exs.A3 and A13 were not proved in the way known to law. 17. The substantial question of law No.3 is decided to the effect that since both the Courts below failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted. https://hcservices.ecourts.gov.in/hcservices/ 18. Hence in this view of the matter, the judgment of the first appellate Court is set aside and the matter is remanded back to the first appellate Court with a direction to appoint an Advocate Commissioner at the expense of the plaintiffs so as to visit the suit property and locate the same with the help of a Surveyor and verify as to whether the suit house is situated in any one of the items found in Ex.B1 and the Commissioner shall also be directed to verify as to whether the said building is in concinnity and in consonance with Ex.A13-the building approval. Meanwhile, the plaintiffs also shall take steps to summon the house tax register to be produced before the first appellate Court so as to prove the the probative value of Ex.A3 as well as the veracity of Ex.A13. The concerned official also might be summoned to speak about those documents. 19. The learned counsel for the appellants would invite the attention of this Court to a portion of the judgment of the appellate Court and develop his argument that after hearing both sides the appellate Court simply allowed the application under Order 41 Rule 27 of CPC and gave marking to those documents without giving any opportunity of cross examining the witness concerned relating to those documents. In fact those documents were not marked in the way known to law. It had become all the more important when the appellants denied and refuted the tenability and admissibility of those documents at the appellate stage. Hence, I would like to point out that due opportunity should be given to both sides also to adduce evidence relating to those additional documents. The first appellate Court is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order. Both sides shall appear before the first appellate Court on 01.04.2011. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Ranipet, Vellore District. 2. The District Munsif-cum-Judicial Magistrate No.1, Walajapet. 1 cc to Mr.S.N. Kirubanandam, Sr. 17706 1 cc to mr.A. Seshan, Sr. 17589 S.A.No.82 of 2010 MBS (CO) kk 30/3 https://hcservices.ecourts.gov.in/hcservices/