IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.219 of 2007 and C.M.P.No.1439 of 2007 Jayaveeran .. Appellant/Appellant/Ist Defendant vs. 1.K.Antony ..Ist Respondent/Ist Respondent/Plaintiff 2.Mahesh .. Respondent/2nd Respondent/2nd Defendant This second appeal is filed against the judgement and decree dated 14.3.2006 passed by the Additional Subordinate Court, Salem, in A.S.No.180 of 2005 confirming the judgement and decree dated 1.9.2005 passed by the 2nd Additional District Munsif, Salem, in O.S.No.933 of 1998. For Appellant : Mr.D.Shivakumaran For Respondents : Mr.R.Singaravelan for M/s.N.S.Sivakumar JUDGMENT This second appeal has been filed by the first defendant, inveighing the judgement and decree dated 14.3.2006 passed by the Additional Subordinate Court, Salem, in A.S.No.180 of 2005, confirming the judgement and decree dated 1.9.2005 passed by the 2nd Additional District Munsif, Salem, in O.S.No.933 of 1998, which was filed seeking permanent injunction. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (a) The first respondent herein, as plaintiff, filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a) to pass a judgement and decree restraining the defendants 1 and 2 and their men from in any manner interfering or disturbing with the peaceful possession and enjoyment of the suit property by means of permanent injunction; b) award the cost of the suit to the plaintiff." (extracted as such) (b) Defendants 1 and 2 resisted the suit by filing separate written statements. (c) Whereupon the trial Court framed the issues. The plaintiff, on his side, examined himself as P.W.1 and marked Exs.A1 to A18. The first defendant examined himself as D.W.1 along with D.W.2 and D.W.3 and marked Exs.B1 to B8. Exs.C1 and C2 are Court documents. (d) Ultimately the trial Court decreed the suit, as against which the appeal was filed by D1 for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court. (e) Being aggrieved by and dissatisfied with the judgement and decree of the Courts below, the first defendant filed this second appeal on various grounds, inter alia thus: (i) The Courts below fell into error in not taking into account the documentary evidence available on the side of the first defendant. (ii) Ex.B3-the 'B' memo receipt dated 23.2.1983, which was given in favour of Antony, son of Masilamani, is the one not relating to D1-Antony. 5. In the memorandum of grounds of appeal, the following proposed substantial questions of law are found suggested: (a) When the evidence and admissions by the plaintiff and his witness clearly show that the plaintiff is not in possession of the suit property, are the Courts below correct in law in granting a decree for permanent injunction in favour of the plaintiff. (b) When the plaintiff Antony, son of Karuppan, admits in his evidence that he has been in army till 31.8.1984, are the Courts below correct in law in holding that the 'B' memo dated 23.2.1983 which is given in favour of Antony, son of Masilamani is the one relatable to the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ (c) When Exhibits B3 and B7 of 1983 clearly show that the plaintiff is not the Antony, who was issued 'B' memo and that it was another Antony, son of Masilamani, are the Courts below correct in law in granting a decree for permanent injunction in favour of the plaintiff viz., Antony, son of Karuppan. (d) When the P.W.2 has clearly deposed that the Antony referred to in 'B' memo (Exhibit B3) pertains only to Masilasmani's son Antony, are the Courts below correct in law in not adverting their judicial mind over this fact for the purpose of dismissing the suit. (e) When the plaintiff makes a clear admission on the one hand that he has not planted coffee in the suit property and the Commissioner taken out by the plaintiff files a report on the other hand that coffee plantation are seen in the suit property, without considering the case of the 1st defendant that he is in possession of the suit property by having coffee plantations, are the Courts below correct in decreeing the suit for permanent injunction as prayed for, inspite of direct evidence holding that the plaintiff is not in possession of the suit property." (extracted as such) 6. My learned predecessor, from the available materials, framed the following substantial questions of law as under: (i) When the plaintiff Antony, son of Karuppan, admits in his evidence that he has been in army till 31.8.1984, are the Courts below correct in law in holding that the 'B' memo dated 23.2.1983 which is given in favour of Antony, son of Masilamani is the one relatable to the plaintiff. (ii) When Exhibits B3 and B7 of 1983 clearly show that the plaintiff is not Antony, who was issued 'B' memo and that it was another Antony, son of Masilamani, are the Courts below correct in law in granting a decree for permanent injunction in favour of the plaintiff viz., Antony, son of Karuppan. (iii) When the P.W.2 has clearly deposed that the Antony referred to in 'B' memo (Exhibit B3) pertains only to Masilasmani's son Antony, are the Courts below correct in law in not adverting their judicial mind over this fact for the purpose of dismissing the suit. (extracted as such) 7. Heard both. 8. The quintessence of the arguments of the learned counsel for the appellant/D1 could succinctly and precisely be set out thus: https://hcservices.ecourts.gov.in/hcservices/ (i) The Courts below did not take into account in proper perspective the importance of 'B' memo dated 23.2.1982 (Ex.B3) issued in the name of Antony, son of Masilamani. (ii) The plaintiff is admittedly K.Antony, son of Karuppan and he is having no connection whatsoever with regard to Antony, son of Masilamani. (iii) The evidence of Tahsildar D.W.3 was not properly considered by the Courts below and they wrongly ignored the same. (iv) The Courts below simply took it for granted the case of the plaintiff and decreed the suit. Accordingly, the learned counsel for the appellant/D1 prays for setting aside the judgements and decrees of the Courts below and consequently for dismissing the original suit. 9. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of D1, the learned counsel for the first respondent/plaintiff advanced his arguments, which could pithily and precisely be set out thus: (i) The Courts below on finding of facts rendered their judgements and in such a case, in second appeal no interference with such finding of facts is required. (ii) The 'B' memo dated 23.2.1983 is vague as vagueness could be and no authenticity could be attached to it and it is having no probative force and the Courts below correctly held the case of the plaintiff as a genuine one. (iii) The trial Court as well as the appellate Court discussed threadbare the oral and documentary evidence and found that there is a burial ground in a portion of the suit property and taking into consideration all relevant facts, decided the matter. 10. Substantial questions of law (i) to (iii): All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another. 11. Though the Courts below, in their judgements discussed various points, nevertheless they failed to take into account the fact that they should have probed further into the 'B' memo. In paragraph No.14 of the judgement of the trial Court it is found mentioned to the effect that D.W.3-the Teahsildar of Yercaud, was asked to produce the original 'B' memo Register, whereas, he appeared without such Register, however, he claimed to have made some enquiry, without producing the enquiry materials and deposed in support of the defendants' case. 12. In my considered opinion, the trial Court, on seeing that D.W.3-the Tahsildar appeared without the original 'B' memo Register, https://hcservices.ecourts.gov.in/hcservices/ in response to the summons, should have insisted upon him to produce the said original Register, but it failed to do so. Over and above that, when the trial Court was commenting upon subsequently as though the materials relating to the enquiry were not produced, it could have mandated D.W.3 to produce the materials which he gathered during his enquiry for arriving at his conclusion in deposing before the Court. As such, it is glaringly and pellucidly clear that even though some evidence might be available with some source, which might throw light on the issue, the trial Court did not care to secure those materials, and the appellate Court also failed to apply its mind in this regard, warranting interference in second appeal for the purpose of remitting the matter back to the appellate Court, so as to enable both the parties to adduce further evidence in support of their respective contentions. 13. The first appellate Court also shall do well to see that the original Register relating to the concerned 'B' memo is produced before the Court and D.W.3 or any other person is recalled or in his absence, some other competent Revenue authority, who could speak about the original 'B' Register and the issuance of 'B' memo-Ex.B3 is summoned for deposing relevant facts concerning this case. 14. At this juncture, I would like to point out that both sides in fact failed to adduce best evidence in support of their respective cases. This is a singularly singular case, in which, the plaintiff would claim that he is the son of Karuppan and as a army personnel he only acquired right over the suit property and he has been exercising his right of control and possession over it, whereas, D1 would contend that it was one Antony son of Masilamani, who was in possession and enjoyment of the suit property and got 'B' memo in his favour and after his death his son Periyanayagam-D.W.2 put the appellant-Jayaveeran in possession of the suit property. If that be so, certainly there might be some independent elderly persons, who would be able to depose in an unbiased manner, but neither of the parties took steps in this regard. 15. It is a trite proposition of law that when best evidence is available and not produced due to inadvertance, then opportunity should be given to both sides to produce the same. Accordingly, the substantial questions of law are answered and the judgement and the decree of the first appellate Court are set aside and the mater is remitted back to the first appellate Court with the direction that the first appellate Court shall direct the Revenue authorities concerned to produce the original 'B' memo Register relating to Ex.B3 and also summon by way of recalling D.W.3 or some other competent Revenue official, who could speak about it and both sides shall be given opportunity to cross-examine such witnesses. Over and above that both sides also are given liberty to adduce oral and documentary evidence in support of their respective stands and the appellate Court is expected to decide the case untrammelled and uninfluenced by https://hcservices.ecourts.gov.in/hcservices/ any of the observations made by this Court, 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 1.3.2011. 16. The second appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed. Msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional Subordinate Court, Salem. 2.The 2nd Additional District Munsif, Salem. 3.The Section Officer, V.R.Secstion, HighCourt, Madras-104 1 cc To Mr.N.S.Sivakumar, Advocate, SR.7556 1 cc To Mr.D.Shivakumaran, Advocate, SR.7514 S.A.No.219 of 2007 bs(co) pmk.18.2.2011 https://hcservices.ecourts.gov.in/hcservices/