IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1973 of 2002 and S.A.No.869 of 2009 and M.P.No.1 of 2009 Ariya Kshtriya Raja Kulavamsa Madalaya Nandavana Paripalana Sangam represented by its President :K.Kumar Raja ... Appellant in S.A.No.1973 of 2002 (1st Defendant)in O.S.No.1143/94 C.T. Accepted vide as per order of court dated 15.11.2002 made in C.M.P.No.16468 of 2002 (KGPJ) Tiruvannamalai Ariya Kshtriya Raja Kula Nandavana Madalaya Parialana Sangam represented by its President :Radhakrishnan ... Appellant in S.A.No.869 of 2009 (Plaintiff in O.S.No.239/03) C.T. Accepted vide as per order of court dated 06.08.2009 made in M.P.No.1 of 2009 in S.A.Sr.No.56553 of 2009 vs. A.Shanmugam ... Respondent in both the second appeals (Plaintiff)in O.S.No.1143/94 Defendant in O.S.No.239/2003 S.A.No.1973 of 2002: This second appeal has been filed under Section 100 of CPC against the judgement and decree dated 31.05.2002 passed by the learned Additional District Judge, Tiruvannamalai in A.S.No.94 of 2001 reversing the judgment and decree dated 17.08.2001 passed by the learned II Additional District Munsif, Tiruvannamalai in O.S.No.1143 of 1994. https://hcservices.ecourts.gov.in/hcservices/ S.A.No.869 of 2009: This second appeal has been filed under Section 100 of CPC against the judgement and decree dated 03.04.2009 passed by the learned District Judge, Tiruvannamalai in A.S.No.19 of 2008 reversing the judgment and decree dated 18.09.2008 passed by the learned II Additional Subordinate Judge, Tiruvannamalai in O.S.No.239 of 2003. For Appellant : Mr.R.Rajarajan in both the S.As. For Respondent : Mr.S.Parthasarathy, Senior counsel in both the S.As. for Mr.J.Ramakrishnan in SA.No.869/2009 Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates in S.A.No.1973/20022. COMMON JUDGMENT These two second appeals have been focussed by Ariya Kshtriya Raja Kulavamsa, Madalaya Nandavana Paripalana Sangam (hereinafter referred to as "Sangam" for short) against the occupant A.Shanmugam (hereinafter referred to as "occupant" for short) inveighing the judgement and decree dated 31.05.2002 passed by the learned Additional District Judge, Tiruvannamalai in A.S.No.94 of 2001 reversing the judgment and decree dated 17.08.2001 passed by the learned II Additional District Munsif, Tiruvannamalai in O.S.No.1143 of 1994 and the judgment and decree dated 03.04.2009 passed by the learned District Judge, Tiruvannamalai in A.S.No.19 of 2008 reversing the judgment and decree dated 18.09.2008 passed by the learned II Additional Subordinate Judge, Tiruvannamalai in O.S.No.239 of 2003 respectively. 2. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of these two second appeals would run thus: A] The plaintiff/ occupant filed the suit O.S.No.1143 of 1994 seeking the following reliefs: - to pass a decree and judgment declaring the title of the plaintiff to the suit property and to direct the defendant to deliver vacant possession of the same free of any obstruction and in default directing delivery through court and - to direct the defendant to pay the plaintiff the costs of the suit. (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ (ii) Written statement was filed by the Sangam resisting the suit. (iii) Whereupon issues were framed by the trial Court. During trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and marked Exs.A1 to A36. On the defendants' side, D1 examined himself as DW1 along with D.Ws.2 and 3 and marked Exs.B1 to B23. (iv) Ultimately, the trial Court dismissed the suit. As against which appeal was filed by the plaintiff/occupant; whereupon the appellate court reversed the judgment and decree of the trial court and decreed the original suit. (v) Being aggrieved by and dissatisfied with the same, the Sangam preferred Second Appeal No.1973 of 2002. B] The plaintiff/ Sangam filed a separate suit in O.S.No.239 of 2003 seeking the following reliefs: - to declare the title of the plaintiff to the suit property and to direct the defendant to deliver vacant peaceful possession of the same free of any obstruction and in default directing delivery through court and for costs. (extracted as such) (ii) Written statement was filed by the defendant/occupant resisting the suit. (iii) Whereupon issues were framed by the trial Court. During trial, on behalf of the Sangam, P.Ws.1 to 4 were examined and Exs.A1 to Ex.A33 were marked. On the side of the defendant/occupant, he examined himself as DW1 and marked Exs.B1 to B42. (iv) Ultimately, the trial Court decreed the suit. As against which appeal was filed by the defendant/occupant; whereupon the appellate court reversed the judgment and decree of the trial court and dismissed the original suit filed by the Sangam. (v) Being aggrieved by and dissatisfied with the same, the Sangam preferred Second Appeal No.869 of 2003, suggesting the following substantial questions of law: 1. Is not the appellate court wrong in law by dismissing the suit without considering the continuous and consistent ownership exercised by the plaintiff community over the suit property which is borne out by Exs.A5, A6, A7, A16 to A18, A19, A24 and A25? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the appellate court is correct in law by stating that the plaintiffs are not entitled for declaration in absence of production of original title deeds when the plaintiffs have discharged the burden of the proof on the basis of all the preponderances of probabilities of the case? 3. Is not the appellate court wrong in law in dismissing the suit for declaration and recovery of possession in view of the documentary evidence adduced on the side of the plaintiff to show the continuous exercise of ownership by the community ex facie and in absence of any evidence on the side of the defendant to show he is the owner of the property? 4. Is not the appellate court wrong in law by holding that the admitted fact of existence of the Silasana Stone is not proved though admitted by defendnt in Ex.A33? 5. Is not the appellate court wrong in holding the plaintiff society which is a registered society and a jurisdictional entity is not entitled to sue on behalf of the community? (extracted as such) C] Whereas my learned predecessor, while admitting the second appeal, framed the following substantial question of law in S.A.No.1973 of 2002. "Whether the lower appellate court is correct in arriving at the conclusion that the plaintiff is entitled to be in possession and he cannot be evicted except by due process of law"? D] After hearing both sides, I am of the considered view that the following substantial questions of law should be framed relating to second appeal No.869 of 2009: 1. Whether the first appellate court was justified in reversing the judgment and decree of the trial court on the ground that the marking of Ex.A3, the certified registration copy of the conditional deed given to the Sangam by one Krishnasamy dated 20.11.1899 without producing the original was untenable? 2. Whether the first appellate court was justified in holding that the Sangam did not prove its title over the suit property ignoring the revenue records and the other oral and documentary evidence available on the side of the Sangam and without furnishing sufficient reasons for disagreeing with the trial court's finding? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the first appellate court was justified in ignoring the evidence relating to the title adduced by the plaintiff on the ground that such evidence are not authentic? 4. Whether there is any perversity or illegality in the judgements and decrees passed by the first appellate court? 4. All these points are taken together for discussion as they are inter-linked and inter-woven with one another. 5. The learned counsel for the Sangam would put forth and set forth his arguments, which could briefly and succinctly be set out thus: i) The first appellate court failed to take into account the documentary evidence, so to say, Ex.A3, Ex.A5, Ex.A6, Ex.A16 to Ex.A18, Ex.A19, Ex.A24 and Ex.A25 and also the oral evidence properly in deciding the lis. ii) The present occupant's father was in occupation of the suit property as a permissive occupier under the Sangam as he was engaged as a watchman and after his death, his son, the present occupant continues to be in possession and because of that he cannot claim any exclusive right in himself and he cannot also challenge the title of the plaintiff under whom the occupant's father entered possession. Accordingly he would pray for setting aside the judgments and decrees of the first appellate in A.S.No.19 of 2008 and A.S.No.94 of 2001. 6. In a bid to torpedo and pulverise and to take the edge off the arguments of the learned counsel for the Sangam, the learned Senior counsel for the occupant would put forth and set forth his arguments, which could tersely and briefly be set out thus: a] The onus of proof is on the plaintiff Sangam to establish that it is the absolute owner of the suit property. The prayer in the suit filed by the Sangam is for declaration of title and for obtaining delivery of possession of the suit property and in such a case, the Sangam was expected to establish its title over it strictly in accordance with the law and mere preponderance of probabilities cannot be ushered in by the plaintiff so as to get such a declaration and recovery of possession of the suit property in its favour and as against the defendant/occupant. b] The present Sangam even though claims to be a society registered under Tamil Nadu Societies Registration Act, 1975 (Act https://hcservices.ecourts.gov.in/hcservices/ No.27/75) there is nothing to indicate that the suit property was acquired by it through any legal means. C] The revenue records produced are all cooked up documents, which emerged subsequent to the filing of the earlier suit in O.S.No.1143 of 1994 by the occupant and those documents are having no probative force of their own; but the first appellate court, being the last court of facts decided the lis as against the Sangam and it is a settled proposition that if two views are possible, the High Court in Second Appeal would not interfere with the view of the lower appellate court. D] There is no perversity or illegality in the decision rendered by the first appellate court, warranting any interference by this court. Accordingly, he would pray for the dismissal of both the appeals. 7. I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL "24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." The other decisions emerged in this regard are as under: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." (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 It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interfering by the High Court under Section 100 of the Code of Civil Procedure would not arise. Hence, it is just and necessary to see as to whether there is any perversity or illegality in the judgments rendered by the first appellate court in A.S.No.19 of 2008, which arose from the judgment and decree in O.S.No.239 of 2003 filed by the Sangam. 8. Ex.A3 is the certified registration copy of the conditional agreement dated 20.11.1899. At the time of marking the said document, there was no objection forthcoming from the side of the occupant/ defendant in the said suit. In this connection, my mind is reminiscent and redolent of the following decision of the Hon'ble Apex Court: (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus: 10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) https://hcservices.ecourts.gov.in/hcservices/ "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as https://hcservices.ecourts.gov.in/hcservices/ exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded." Had at the time of marking Ex.A3, any objection been raised by the occupant, so to say, the defendant, then the plaintiff Sangam might have had the opportunity of satisfying the court about the dilapidated/worn out condition of the original document. 9. In connection with this point, the learned senior counsel for the occupant would submit that the method and manner in which the deposition was recorded in this case was far from satisfactory and not in compliance with the law. He would draw the attention of this court to the chief examination affidavits filed on the Sangam's side before the trial court and try to point out that the chief examination affidavits were as such taken as chief examinations without properly getting them verified from the deponents that they were their respective chief examination affidavits and the documents also were marked not in accordance with law. 10. I would like to point out that all these contentions were not raised before both the courts below and for the first time while putting forth the argument before this court, the learned senior counsel for the occupant has raised this point, which is not purely a question of law. Even now, no cross-appeal also was filed on that basis by the occupant. Fruitfully the decision of the Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak] could be referred to and an excerpt from it would run thus: "24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................." Even then, in the interest of justice, I proceed to discuss the said point raised by the occupant. 11. Had this point been raised before the trial court itself, the trial court could have clarified the position as to what had actually happened before the trial court or would have to the satisfaction of the defendant also resorted to some remedial measures. Accepting the deposition of the witnesses as evidence in https://hcservices.ecourts.gov.in/hcservices/ this matter, the occupant cross-examined those witnesses and proceeded with the case and submitted the arguments also. Whereupon, judgments were passed on merits; as against which, the aggrieved party preferred appeal and even in the appeal grounds, there was no whisper at all about the present contentions relating to the improper admission of chief examination affidavits as the depositions, etc. 12. I would like to call up and recollect that the procedures are hand-maids of justice. The punctilious of court procedures, should not come in the way of rendering justice. There are certain procedures and non-adherence to them would cut at the root of the genuineness or validity of the proceedings for which, it has to be seen as to whether, the relevant procedures are mandatory or directory. No doubt, the filng of the chief examination affidavits before the court is contemplated under Chapter XVIII of the Code of Civil Procedure. There might be some error on the part of the some of the members of the lower judiciary in entertaining such chief examination affidavits as chief examination depositions. The normal procedure should be that on the filing of the chief examination affidavit, the deponent should appear before the court and it should be read out to him by taking a cue from Order XIX Rules 1 and 2 of the Code of Civil Procedure, which run thus: 1. Power to order any point to be proved by affidavit – Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. (emphasis supplied) 2. Power to order attendance of depondent for cross- examination – 1. Upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent. 2. Such attendance shall be in court, unless the deponent is exempted from personal appearance inc ourt, or the court otherwise directs. Whereupon, if he accepts all the versions therein as true, then it should be taken as such as the deposition in chief examination of that witness. Then the court has to give markings to the documents one after another. At that time, the party who is having any https://hcservices.ecourts.gov.in/hcservices/ objection for marking should raise it. The court keeping in mind the dictum of the Hon'ble Apex Court reported in (2010) 8 SCC 423 cited supra should deal with the situation either by passing immediately or reserving the adjudication on the document to be made while passing the ultimate judgment to be passed. Some of the Judges are having the practice of giving exhibit number itself to the chief examination affidavit and thereafter proceed to give markings to the documents. 13. I am of the view that no separate markings need be given to the chief examination affidavit, but in all fairness, it should be read out and on the deponent accepting the contents, the same could be treated as deposition in chief examination. 14. In this case, unless it is shown that any prejudice has been caused because of the alleged non adherence to the procedures in entertaining the chief examination affidavit as deposition in chief by the trial court, the question of simply ignoring it at the second appellate stage would not arise at all. 15. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that if at the second appellate stage, any attack is levelled as against the procedure adopted by the trial court, then that impugned procedure should be a mandaotry one capable of cutting at the root of the very genuineness of the procedure. But, in this case, it is not so. Even before the trial court during argument stage or before the appellate court when the occupant preferred two appeals, he had not raised any such contentions; but, on the other hand, he had placed reliance on those chief examination affidavits and cross examined the witnesses in extenso and thereby he signified his assent to the chief examination affidavits as depositions in chief examination. In such a case, I am of the view that this court cannot be called upon to ignore such depositions, which are already available on record. 16. In view of the ratiocination adhered to by me above, the following decisions cited on the side of the