IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.133 of 2010 and M.P.No.1 of 2010 Siddha Gounder .. Appellant/Plaintiff vs. 1.Palani Gounder 2.Murugesan 3.Kumaran .. Respondents/Defendants This second appeal is focussed as against the judgment and decree dated 29.10.2009 made in A.S.No.12 of 2009 on the file of the Sub Court, Dharmapuri confirming the judgment and decree dated 30.12.2008 made in O.S.No.45 of 2005 on the file of District Munsif- cum-Judicial Magistrate Court, Palacode. For Appellant : Mr.V.R.Annagandhi For Respondents : Mr.S.Rajendrakumar J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 29.10.2009 passed in A.S.No 12 of 2009 by the Sub Court, Dharmapuri, confirming the judgment and decree of the learned District Munsif-cum-Judicial Magistrate Court, Palacode in O.S.No.45 of 2005. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit for declaration and for permanent injunction in respect of the land measuring an extent of 83 cents in S.No.572/4 in Periyanahalli village, against the defendants on the main ground that the defendants are attempting to trespass into the plaintiff's property described in the schedule of the plaint. https://hcservices.ecourts.gov.in/hcservices/ (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) The plaintiff-Siddha Gounder examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A3 were marked. The first defendant-Palani Gounder examined himself as D.W.1 along with D.Ws.2 and 3 and Exs.B1 to B5 were marked. (e) Ultimately the trial Court dismissed the suit, as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that both the Courts below failed to take into consideration the patta issued in favour of the plaintiff by the revenue authorities concerned and his continuous possession over the suit property; the admissions made by the defendants were not taken into consideration by the Courts below. There is no dispute about the entitlement of the plaintiff's father over the suit property and in the oral partition, the plaintiff got the suit property in his favour. 4. As such, suggesting the following substantial questions of law, this Second Appeal has been filed: "(a) Whether the Courts below are correct in dismissing the suit for declaration and injunction when the defendants have admitted the title and possession of the plaintiff in the suit property. (b) Whether the defendants are competent persons to dispute the extent of share available to the plaintiff among his brothers when the title of plaintiff's father has been admitted by them. (c) Whether the decree and judgment of the Courts below in dismissing the suit are legally sustainable when the defendants admitted the case of the plaintiff. (d) Whether the unexplained admission of the defendants regarding the title of the plaintiff will entitle the plaintiff to get a decree" (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ 5. Heard both sides. 6. The gist and kernel of the arguments of the learned counsel for the plaintiff would run thus: (a) The issues were not framed properly by the trial Court. (b) The title over the suit property was not in dispute at all, even then the trial Court observed as though the plaintiff failed to prove his title over the suit property. (c) Since the defendants attempted to trespass into the plaintiff's property, the latter was driven to the extent of filing the suit. (d) The first appellate Court which is expected to go into all the factual aspects failed to consider the evidence properly and simply confirmed the findings of the trial Court without ushering in the proper law points concerned. (e) In fact, the defendants who were owning the suit property to the north of the suit property sold away their property. (f) Without considering the pros and cons of the matter, both the Courts below disposed of matter, warranting interference in the Second Appeal. Accordingly the learned counsel for the plaintiff prays for allowing the Second Appeal and for decreeing the original suit. 7. Piloting the arguments on the side of the defendants and by way of torpedoing and pulversing the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendants would advance his arguments, which could pithily and precisely be set out thus: (a) The trial Court appropriately and appositely, correctly and legally extracted the relevant portion of the deposition of P.W.1, which would connote and denote, indicate and exemplify that the plaintiff/P.W.1 himself was not aware of the extent allotted to him during the alleged oral partition which emerged according to him among his family members even when his father was alive. (b) The trial Court also categorically gave a finding to the effect that there was nothing to establish or prove that the defendants trespassed or attempted to trespass into the plaintiff's possession. As such both the Courts below on appreciation of factual issues decided the lis warranting no interference in the Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the defendants would pray for dismissing the Second Appeal. 8. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising power under Section 100 of CPC should see as to whether there is any substantial question of law is involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it is the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual and legal issues involved in the matter. 9. No doubt, a mere reading of the trial Court's judgment would convey that the issues were not properly framed. The next question arises as to whether such non framing of the issues by itself would be fatal to the judgment of the trial Court. 10. The trial Court simply framed the issue as to whether the plaintiff was entitled for the reliefs claimed by him. The trial Court should have framed the issues as under: (1) Whether the plaintiff is the absolute owner of the suit property. (2) Whether as on the date of the filing of the suit the plaintiff was in possession of the suit property, and if so, whether the defendants attempted to encroach upon it? (3) Whether the plaintiff is entitled to the reliefs as prayed for? 11. Instead of framing the issues as aforesaid, the trial Court generally framed the issues in a different manner. I am of the view https://hcservices.ecourts.gov.in/hcservices/ that the lower judiciary has to be sensitised certainly on this point. While the advocates raising their accusative finger as against the lower judiciary that they are not framing the issues properly, they should also understand their responsibility in guiding the Court at the stage of settlement of issues. In this case, both side Advocates have not assisted the Court in getting the issues settled properly. 12. Be that as it may, now it has to be seen as to whether the judgment of the trial Court would get vitiated because of such non framing of proper issues. The trial Court threadbare discussed the evidence. No stone was left unturned in deciding the disputes involved in this case. The trial Court in paragraph Nos.7 to 9 even extracted the relevant portions of the depositions of P.W.1 as well as D.W.1 and also referred to the documentary evidence made available before him and gave his finding that absolutely there was no iota or shred, shard or miniscule, jot or pint of evidence to establish that the plaintiff is the owner of an extent of 83 cents of land and the plaintiff who is expected to know thoroughly about the extent of the land which was allegedly allotted in his favour as per the partition deed, pleaded total ignorance about it. 13. I recollect and call up the maxim: (1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies. These sister maxims would point out that the onus probandi is on the plaintiff to prove what he pleaded. I would like to hark back to the following maxim: Judicis est judicare secundum allegata et probata : It is the proper role of a judge to decide according to the allegations and proofs. 14. As such considering all these maxims, I am of the view that the plaintiff approached the Court half handedly without having enough evidence but on mere suspicion. However, the trial Court clearly pointed out that there is a ridge existing physically on the ground and D.W.1 as well as P.W.1 expressed their respective stands in the form of evidence before the trial Court that each of them is not entitled to encroach upon each other's property. When such is the position, I am of the view that I cannot look askance at the ratiocination adhered to by the trial Court in deciding the lis. The appellate Court being the last Court of facts is expected to look into the factual evidence. Here the first appellate Court in its judgment in accordance with Order 41 Rule 31 of CPC analysed the https://hcservices.ecourts.gov.in/hcservices/ factual issues and ultimately agreed with the findings of the trial Court. Both the Courts also held that even before the filing of the suit the plaintiff sold an extent of 17 cents as per Exs.B1 and B2 to third parties, but that fact was not disclosed in the plaint, for which the learned counsel for the appellant/plaintiff would try to explain and expound that that was not the point in issue at all and after selling those extents of land only, the plaintiff became entitled to 83 cents, for which the learned counsel for the defendants would appropriately point out that in the narration of facts in the plaint it is found exemplified that in the partition an extent of 83 cents alone was allegedly allotted in favour of the plaintiff and even that has not been proved. As such both the Courts below left no stone unturned in analysing the evidence and ultimately they arrived at the conclusion that the plaintiff is having no case of his own and in such a case there is no question of law much less substantial question of law is involved in the matter. Accordingly, this Second Appeal is dismissed. However, there shall be no order as to costs. Gms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Subordinate Judge, Dharmapuri. 2. The District Munsif-cum-Judicial Magistrate Court, Palacode. + 1 cc to Mr. S. Rajendrakumar, Advocate SR No.15543 + 1 cc to Mr. V.R. Anna Ganthi, Advocate SR No.15601 NG(CO) SR/22.3.2011 S.A.No.133 of 2010 https://hcservices.ecourts.gov.in/hcservices/