IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.22 of 2011 and M.P.No.1 of 2011 1. Andal Ammal 2. Alamelu Ammal .. Appellants/Plaintiffs vs. 1. Bhuvaneswari 2. Radhakrishnan 3. Ilayaperumal 4. Gurumoorthy 5. Arul 6. Vikkiraman .. Respondents/Defendants This Second Appeal under section 100 of CPC is focussed as against the judgment and decree of the learned Principal Subordinate Judge, Villupuram, passed in A.S.No.86 of 2009 dated 27.07.2010 reversing the judgment and decree of the Principal District Munsif, Thirukoilur, passed in O.S.No.39 of 2007 dated 01.04.2009. For appellants : Mr.J.Ramakrishnan For respondents: Mr.V.Raghavachari JUDGMENT This Second appeal is focussed by the original plaintiffs, animadverting upon the judgment and decree dated 27.07.2010 passed in A.S.No.86 of 2009 by the Principal Subordinate Judge, Villupuram, reversing the judgment and decree of the Principal District Munsif, Thirukoilur in O.S.No.39 of 2007. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The appellants as plaintiffs, filed the suit for getting declaration of their title to a vacant plot and for permanent injunction as against the defendants. (b) The written statement was filed by defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the first plaintiff-Andal Ammal examined herself as P.W.1 along with P.Ws.2 to 4 and Exs.A1 to A16 were marked. On the side of the defendants, D.Ws.1 to 6 were examined and Exs.B1 to B15 were marked. (e) Ultimately the trial Court decreed the suit as against which appeal was filed, whereupon the first appellate Court reversed the judgment and decree of the trial Court and dismissed the original suit. 3. Being aggrieved by and dissatisfied with the judgment of the first appellate Court, the plaintiffs preferred this Second Appeal on various grounds and also suggesting the following substantial questions of law: "1. The judgment and decree of the first appellate Court in dismissing the suit thereby overlooking the Ex.A1 to Ex.A16 is sustainable in law more particularly ignoring the recitals in Ex.A3, Ex.A8 and Ex.A9 and also for its not drawing presumption under section 114 of the Indian Evidence Act? (2) Whether the judgment and decree of the first appellate Court is not vitiated for its substantial non compliance of order 41 Rule 31 and Section 96 of CPC especially while reversing the findings of the trial Court the appellate Court failed to assign any valid reasons" ADDITIONAL SUBSTANTIAL QUESTIONS OF LAW: (1) Having regard to scope of sections 101 to 103 of Indian Evidence Act, when the defendants failed to prove that there was a surplus joint family income and out of which the suit property was purchased in the name of Ramu Chettiar, whether the judgment and decree of the first Appellate Court is sustainable? (2) Having regard to the scope of Section 92 of Indian Evidence Act, whether the 1st Appellate Court is justified in entertaining the defendants claim for non inclusion of present suit property in Ex.A8? (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ 4. On perusal of the records, I have been of the view that the following substantial questions of law could be framed as under: (1) Whether the judgment of the first appellate Court is not in conformity with Order 41 Rule 31 of CPC? (2) Whether the first appellate Court failed to take into consideration the deposition of P.W.1, to the effect that there was a partition emerged between Ramu Chettiar and Chinnasamy Chettiar forty years before; that there was also a partition emerged between Ramu Chettiar's sons Venkatesa Chettiar and Rangasamy Chettiar and also about the existence of an unregistered document concerning such partition spoken to by her? (3) Whether the first appellate Court failed to consider the pleadings of the defendants in the written statement, that 25 years anterior to the date of the filing of the written statement, a partition took place between Ramu Chettiar and his brother Chinnasamy Chettiar by allotting properties to the north of La Kudalur Road (Pillayar Koil Street) to Ramu Chettiar and allotting properties to the south of the said road to Chinnasamy Chettiar. (4) Whether the first appellate Court failed to consider as to when Ramu Chettiar and Chinnasamy Chettiar died? (5) Whether there is any perversity and illegality in the judgment and decree of the first appellate Court? 5. All the aforesaid substantial questions of law are taken together for discussion, as they are inter-linked and inter woven with one another. 6. Tersely and briefly, pithily and precisely, the admitted or atleast the undeniable facts would run thus: Ramu Chettiar and Chinnasamy Chettiar happened to be brothers, who owned properties jointly. As evidenced by Ex.A9-the sale deed, which is an ancient document, the said Ramu Chettiar purchased the suit property. During the year 1918 as revealed by Ex.A13, the said Ramu Chettiar donated certain properties in favour of his wife and in that there was a reference to the fact that the first item referred to therein was obtained by Ramu Chettiar in a partition and that the same was donated in favour of his wife. Wherefore, the learned counsel for the plaintiffs/appellants would develop his argument that such a reference is indicative of the fact that already there was a https://hcservices.ecourts.gov.in/hcservices/ partition between Ramu Chettiar and Chinnasamy Chettiar; thereafter, Ramu Chettiar from out of his own income purchased properties as evidenced by Exs.A14 and A15 and subsequently, as per Ex.A16, a part of the property which he purchased was sold by him to Chinnasamy Chettiar. 7. Relying upon the said fact, the learned counsel for the plaintiffs would put forth and set forth his arugments that this would further enlighten that the partition took place long prior to 1918 and that was why as evidenced by Ex.A16, Ramu Chettiar sold the item as contained therein to Chinnasamy Chettiar. According to him, had there been no partition between them, then Ramu Chettiar could not have sold the joint property in favour of Chinnasamy Chettiar and Chinnasamy Chettiar also would not have purchased the said property from Ramu Chettiar if chinnasamy Chettiar also happened to be one of the co-sharers of the property. Accordingly, the learned counsel for the plaintiffs would try to project the case of the plaintiffs that the theory of subsequent partition emerged between Ramu Chettiar and Chinnasamy Chettiar is nothing but a ruse to snatch away the suit property from the plaintiffs, who are the wife and daughter of Venkatesa Chettiar S/o Ramu Chettiar. No doubt, the suit property is situated to the south of the said La Kudalur Road (Pillayar Koil Street). The plaintiffs would contend they have been enjoying the suit property by cultivating plants and that too by taking water by using pipe from their house which is situated to the north of the said road. 8. Whereas, the learned counsel for the defendants would contend that in the partition which emerged between Ramu Chettiar and Chinnasamy Chettiar, the entire portion of the joint family properties situated to the south of the said road, namely La Kudalur Road (Pillayar Koil Street) was allotted to the share of Chinnasamy Chettiar and the entire portion of the joint family property situated to the north of the said road was allotted to Ramu Chettiar. Precisely there is no clinching and conclusive evidence available on record in support of the said partition theory as suggested on the defendants' side. 9. At this juncture, I would like to extract hereunder the relevant portion of deposition of P.W.1: "vd; fztUf;Fk;. vd; khkdhh; rpd;d khkdhUf;Fk;. ghfk; gphpj;J Rkhh; 40 tUl';fs; ,Uf;Fk; vd;why; rhpjhd;/ vdf;F jpUkzk; Md gpwF jhd; ghfk; gphpj;Jf; bfhz;lhh;fs;/ bt';fnlr brl;oahUk; u';frhkp brl;oahUk;. Ch; g";rhaj;J K:yk; ngg;ghpy; vGjp gphpj;Jf; bfhz;lhh;fs;/ g";rhaj;J K:yk; jhd; gphpj;Jf; bfhz;lhh;fs; buf;fhh;L cs;sJ/ gjpt [ bra;ag;gltpy;iy/ vGjpaJ ghoae;jy; ma;ahf;fz;Qqrhkp kfd; fh;zk; ghf ml;ltizia vGjpdhh;/@ https://hcservices.ecourts.gov.in/hcservices/ 10. Placing reliance on the aforesaid extract, the learned counsel for the defendants would submit that P.W.1 was expected to produce the said document before the Court, but she did not choose to do so for the reasons best known to herself. I am of the considered view, that the Court itself could have directed her to produce the document, because the said document might have thrown some light on the issue. According to P.W.1, there was an oral partition which emerged between the sons of Ramu Chettiar, namely Venkatesa Chettiar and Rangasamy Chettiar and that therein certain items of properties were specified. It is not her case that such a document refers to the alleged partition which took place between Ramu Chettiar and Chinnasamy Chettiar. However, at one point of time she deposed that 40 years ago a partition emerged between Ramu Chettiar and Chinnasamy Chettiar. Here the plaintiffs sought for certain reliefs mainly based on Ex.A9, whereas, the defendants would call upon the Court to believe the theory of partition which emerged between Ramu Chettiar and Chinnasamy Chettiar 25 years anterior to 27.07.2007, the date of filing of the written statement by them. Accordingly 25 years anterior to 2007 would refer to 1982 and as such, it is for the parties to demonstrate and establish as to whether both Ramu chettiar and Chinnasamy Chettiar were alive at that time, so to say, during the early 1980's. As such, evidence should necessarily be adduced to prove as to whether during early 1980's Ramu Chettiar and Chinnasamy Chettiar were alive at all. I recollect the maxims: (i) Affirmantis est probare – He who affirms must prove. (ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. 11. Blindly the Court cannot call upon the plaintiffs to establish and prove the case of the defendants also. The material fact asserted by a party to the lis, has to be proved by the party who affirms it. As such, it is for the respective parties to prove their respective contentions and one cannot call upon the other to prove the former's plea or contention. In my considered opinion, the said partition which alleged to have taken place anterior to 25 years, so to say, around 1980's should be proved by the defendants and for that they should have adduced evidence and it is for the plaintiffs also as deposed by P.W.1 in her deposition, a portion of which as extracted supra, to put forth all the details relating to the partition which emerged between Venkatesa Chettiar and Rangasamy Chettiar, both sons of Ramu Chettiar, so as to enlighten the Court. If it is found that there was in reality a partition as alleged by the defendants and in that the entire portion of the joint family property which stood in the name of either Ramu Chettiar or Chinnasamy Chettiar or both and which situated to the south of the https://hcservices.ecourts.gov.in/hcservices/ La. Kudalur Road (Pillayar koil street) were allotted to Chinnasamy Chettiar, then as a sequele the defendants would succeed in the lis, as otherwise the plaintiffs' theory based on Ex.A9 would be acceptable. 12. On the defendants' side Ex.A8, the partition deed which emerged among the descendants of Chinnasamy Chettiar was relied on by the plaintiffs to demonstrate and prove that in the said partition deed of the year 1997, there is no reference to the suit property which is indicative of the fact that the suit property was not the property of Chinnasamy Chettiar. Had it belonged to Chinnasamy Chettiar, then in the partition deed there would have been a reference to the said property. Whereas, the learned counsel for the respondents/defendants would contend that the parties felt that to save stamp duty, the said property was not referred to and there are also other items of properties which are not found included in the said partition deed Ex.A8. Normally whenever there is a partition in a family, they would refer to all the properties. No doubt, piece meal partition also might be possible, but adding fuel to the fire, there is a clause in the said partition deed Ex.A8 that apart from the properties referred to therein, no other properties were available for partition. As such, even though the aforesaid aspects are not speaking in support of the defendants, yet if the defendants could establish their theory of partition which emerged between Ramu Chettiar and Chinnasamy Chettiar, wherein, allegedly the entire portion of the suit property situated to the north of the road was allotted to the share of Ramu Chettiar and the entire portion of the suit property situated to the south of the road was allotted to Chinnasamy Chettiar, then the defendants might have the chance of laying claim successfully over the suit property based on such partition, because the suit property is admittedly situated to the south of the said road. 13. I recollect and call up the legal adage that best evidence should be placed before the Court. Here, my observation supra would reveal that both sides could have placed better evidence which they failed to do so. 14. The first appellate Court to say the least, throwing to winds Order 41 Rule 31 of CPC, simply without referring to the pros and cons of the matter and the oral and documentary evidence, in entirety, simply picked and chosen certain portions of the oral evidence and the evidence on the defendants' side and decided the lis in favour of the defendants, which is not tenable legally. 15. In the result, the first substantial question of law is answered to the effect that the first appellate Court did not adhere to Order 41 Rule 31 of CPC in dealing with the first appeal. https://hcservices.ecourts.gov.in/hcservices/ 16. The second substantial question of law is answered to the effect that the first appellate Court failed to take into consideration the deposition of P.W.1 in proper perspective and deal with the matter. 17. The third and fourth substantial question of laws are answered to the effect that the first appellate Court failed to consider the averments of the defendants in the written statement with reference to the evidence and also failed to consider when Ramu Chettiar and Chinnasamy Chettiar died so as to find out the probabilities of the case of the defendants concerning the emergence of the oral partition alleged to have taken place 25 years anterior to the date of the filing of the written statement. 18. The fifth substantial question of law is answered to the effect that since the first appellate Court did not take into account the germane facts, interference in the Second Appeal is warranted. 19. Wherefore, the judgment and decree of the first appellate Court is set aside and the matter is remanded back to the first appellate Court so as to enable both sides to adduce evidence on the aforesaid line, whereupon the appellate Court shall decide the lis on merits untrammeled and uninfluenced by any of the observations made by this Court on merits of the case of the respective parties in disposing of this matter, preferably within a period of four months from the date of receipt of records. Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Principal Subordinate Judge, Villupuram. 2. The Principal District Munsif, Thirukoilur. S.A.No.22 of 2011 NG (CO) RH (2.1.12) https://hcservices.ecourts.gov.in/hcservices/