IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.03.2011
CORAM
THE HONOURABLE MS. JUSTICE R. MALA
A.S.No.411 of 2007 & M.P.Nos.1 and 2 of 2011
and A.S.No. 465 of 2008
In A.S.No.411 of 2007
1.Chinnathayammal
2.Indira Gandhi
3.Shanthi
4.Kamala
5.Sakthivel Murugan .. Appellant
vs.
1.K.Padmavathy
Rep. by her power of attorney
Agent S.Chandrasekaran
2.V.Shankar .. Respondents
In A.S.No.465 of 2008
K.Padmavathy
Rep. by her power of attorney
Agent S.Chandrasekaran .. Appellant
vs.
1.Chinnathayammal
2.Indira Gandhi
3.Shanthi
4.Kamala
5.Sakthivel Murugan
6.V.Shankar .. Respondents
Prayer: The Appeal Suits (First Appeals) preferred under Section 96 of C.P.C., against the judgment and decree dated 19.12.2006 made in O.S.No.52 of 2005 on the file of the Additional District Court(Fast Track Court No.II), Salem.
For Appellant in A.S.No.411 of 2007 : Mr.D.Shivakumaran
For Appellant in A.S.No.465 of 2008 : Mr.T.R.Rajaraman
For Respondents in A.S.No.411 of 2007 : Mr.V.Pauldas for R1
Mr.R.Neelakandan for R2
For Respondents in A.S.No.465 of 2008 : Mr.D.Shivakumaran for
RR1 to 5
R6-served.
JUDGMENT
The Appeal Suits (First Appeals) arise out of the judgment and decree dated 19.12.2006 made in O.S.No.52 of 2005 on the file of the Additional District Court (Fast Track Court No.II), Salem.
2.The averments made in the plaint are as follows:
(i)The suit property and other items of the properties were the joint family properties of one Sengoda Gounder and his son Vaiyapuri Gounder. Vaiyapuri Gounder’s first wife is Chinnammal, 2nd wife is Vellayammal. Two sons begotten through Chinnammal (first wife) namely (1) Palanisamy Gounder and (2) Kandasamy Gounder. The second wife Vellayammal begotten five sons namely, (1) Lakshmanan (2) Periya Sengodan (3)Adappan @ Pera Pandara Gounder (4) Periyathambi @ Vaiyapuri Gounder and (5) Chinna Thambi @ Sengoda Gounder.
(ii) The joint family properties have been divided between them on 20.02.1956. The suit property and some other properties were allotted to the share of Vellayammal and her sons. They divided their properties into house sites and they sold the same as house sites to several persons and the lands in T.S.No.79 were subdivided according to the layout plan.
(iii) Item No.1 of the suit property in T.S.No.79/42 was one such house site and it was sold by Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram in favour of one Manickavasagam on 05.03.1974 for Rs.5,500/- and he was in possession and enjoyment of the property. Subsequently, Manickavasagam sold the same to the plaintiff/Padmavathy on 28.08.1980 for Rs.14,000/-.
(iv) Item No.2 of the suit properties were formed part of the house site in T.S.No.79/43, which was measuring 40 feet East-West and 70 feet North-South. It was sold to one Nagarathinam Ammal by Vellayammal and her two sons Lakshmanan and Adappan @ Pera Pandaram on 05.03.1974 for Rs.5,500/-. Nagarathinam Ammal, in turn, sold the same in favour of one Mohan Kumar on 28.08.1980. The properties in Item Nos. 1 and 2 are contiguous properties. Mohan Kumar sold his portion to the plaintiff/Padmavathy on 31.08.1981. So the plaintiff is the absolute owner of the properties in Item Nos. 1 and 2.
(v) The first defendant is the mother of the defendants 2 to 5. The first defendant’s husband Adappan @ Pera Pandaram representing the fifth defendant, who was then a minor sold the suit properties under a sale deed dated 05.03.1974. The sale is binding on the defendants 1 to 5. The plaintiff was in peaceful possession and enjoyment of the same without any disturbance for more than statutory period.
(vi) The suit property in item No.3 was a vacant house site and on 21.06.2000, the defendants 1 to 5 attempted to interfere the plaintiff’s possession. Therefore, the plaintiff was constrained to file a suit in O.S.No.430 of 2000, on the file of the District Munsif Court, Salem, for a relief of permanent injunction against the defendants 1 to 5. Since the sixth defendant claims to be a tenant on item No.3 of the suit property, he was impleaded in the suit. Since no injunction was granted in the suit, the defendants 1 to 5 along with the sixth defendant trespassed into the suit property and put up a temporary construction. Subsequent to the trespass of the defendants into the suit property, the plaintiff amended the plaint for mandatory injunction directing the defendants to demolish the structures and remove them from the suit property. Since no appropriate relief has been sought for, the plaintiff is constrained to file a suit for declaration of title and recovery of possession, after removing superstructure and prayed for a decree.
3. The gist and essence of the written statement filed by the third defendant, adopted by the defendants 1,2,4 and 5 are as follows:-
(i)The relationship mentioned in para-3 of the plaint and the partition on 20.02.1956 are admitted. The suit property and the other properties allotted to the share of Vellayammal and her five sons are also admitted. But it is not true that the Item No.1 of the suit properties, allotted to the share of Vellyammal and her sons Lakshmanan and Adapan @ Perapandaram in T.S.No.79/42 were sold by them to one Manickavasagam. It is also not true that the said Manickavasagam sold the same to the plaintiff and the plaintiff was in possession and enjoyment. The defendants’ grand mother, paternal uncle and their father have not executed any sale deed to anybody at any point of time.
(ii) The plaintiff is not the absolute owner of the item Nos. 1 and 2 of the properties as item No.3 of the suit property. If really the plaintiff purchased the suit properties, she might have taken possession and might been in possession for all those years. Now only the plaintiff is trying to take forcible possession with an intention to dispose the property as it is her own property. Since the plaintiff was not able to prove her case and has “not pressed” the suit in O.S.No.430 of 2000, the suit was dismissed as withdrawn. The defendants never trespassed into the suit property and there is no cause of action for the suit. Hence, the defendants prayed for the dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed four issues and considering the oral evidence of P.W.1, P.W.2 and D.W.1 and documentary evidence of Exs.A1 to A35 and B1 to B11 and X1, decreed the suit without costs, against which, the defendants 1 to 5 have come forward with the Appeal Suit in A.S.No.411 of 2007. Since the suit was decreed without costs, the plaintiff has come forward with the Appeal Suit in A.S.No.465 of 2008.
5.During the pendency of the appeal suits, the plaintiff has come forward with M.P.No.1 of 2011 for reception of additional evidence.
6.The averments in the affidavit filed in M.P.No.1 of 2011 are as follows:
(i) Item Nos.1 and 2 of the suit properties were belonged to Lakshmanan, Adappan @ Pera Pandaram and their mother Vellayammal. They sold the same to Manickavasagam and Nagarathinam Ammal under two registered sale deeds dated 05.03.1974, which were marked as Exs.A3 and A5.
(ii) This petitioner wanted to file the certified copy of the Re-settlement Register showing the transfer of patta in favour of the said purchasers namely, Manickavasagam and Nagarathinam Ammal. Due to mistake and mix-up of papers, instead of producing the certified copy of the Re-settlement Register dated 04.11.1974, they produced only the Re-settlement Register in respect of the transfer of patta in favour of the petitioner.
(iii)During the course of arguments in the appeal suits, when the original documents were verified, it was realised that instead of the Re-settlement Register dated 04.11.1974, the Re-settlement Register in the name of Padmavathy was produced under Ex.A12. After verifying the records, the lower Court Advocate, who conducted the trial, came to know that the certified copy of the Re-settlement Register issued by the Estate Manager, Salem was found. The petitioner, exercising due diligence in conducting the case before the lower Court for the reasons stated above, was unable to obtain during the trial and now able to file the additional document before this Court. The Re-settlement Register will go to show that the names of the purchasers were entered in the Re-settlement Register maintained by the Revenue Department of the Government of Tamil Nadu. Since this document is necessary for the disposal of the appeal suits, the petitioner has come forward with M.P.No.1 of 2011 for reception of additional document (i.e.) certified copy of the Re-settlement Register for T.S.No.79, Periyeri Village, Salem Taluk and prayed for allowing this petition.
7.During the pendency of the appeal suits, the defendants 1 to 5 have come forward with M.P.No.2 of 2011 for reception of additional evidence under Order 41 Rule 27 C.P.C.
8.The averments in the affidavit filed in M.P.No.2 of 2011 are as follows:
(i) The suit properties are house sites with total extent of 3,500 sq.ft., item No.1 of the suit property is a house plot with an extent of 2,800 sq.ft. and item No.2 of the suit property is a house site with an extent of 700 sq.ft. Item No.3 is a composite description of item Nos.1 and 2.
(ii) Originally, the suit property and other properties were belonged to the joint family of Sengoda Gounder. There was a partition between them on 20.02.1956. The suit property among other properties were allotted to the share of Vellayammal and her five sons. They divided themselves and sold them to several persons. The lands in T.S.No.79 were subdivided according to the lay out plan.
(iii)The first item of the suit property in T.S.No.79/42 is a house site, which was sold by Vellayammal and her sons to one Manickavasagam on 05.03.1974. The said Manickavasagam sold the same to the plaintiff/Padmavathy on 28.08.1980.
(iv) The second item of the suit properties formed part of the house site in T.S.No.79/43 and the same was sold to Nagarathinam Ammal, in turn she sold the same to one Mohan Kumar on 28.08.1980. The said Mohankumar sold the same to the plaintiff/Padmavathy on 31.08.1981. So she is the absolute owner of the said items 1 and 2 of the suit property and she is in possession and enjoyment of the same. Since the defendants 1 to 5 herein have attempted to interfere her possession, she filed a suit in O.S.No.430 of 2000 for permanent injunction. Subsequently, the properties have been trespassed by the defendants. Hence she amended the plaint in O.S.No.430 of 2000 for the relief of mandatory injunction. The said suit was dismissed as withdrawn. Even during the pendency of the suit in O.S.No.430 of 2000, the plaintiff herein sought for declaration of title and recovery of possession. The petitioners herein are the defendants pleaded that the sale deeds produced by the plaintiff are fabricated and prayed for dismissal of the suit. After full trial, the suit was decreed without costs. Hence the petitioners herein have come forward with the appeal suit.
(v) Now the documents namely, (1) the deposition of first respondent in an earlier suit between the same parties namely O.S.No.732 of 1998, (2) the deposition of respondent in earlier suit in O.S.No.430 of 2000 (3) the deposition of the third petitioner/Shanthi herein in O.S.No.430 of 2000 (4) An extract from the Property Tax Register (5) the plaint in O.S.No.430 of 2000 and (6) petition and orders in I.A.No.599 of 2005, which are enclosed herewith the petition, are necessary for the disposal of the appeal suits. The petitioners herein have exercised due diligence in conducting the case before the trial Court and they are unable to mark the above documents. These documents are necessary for the interests of justice. Hence they prayed for the reception of the additional documents .
9.The gist and essence of the counter affidavit filed by the first respondent/plaintiff is as follows:
The suit in O.S.No.52 of 2005 was filed by the first respondent herein, which was decreed as prayed for without costs, against which, the defendants 1 to 5 have come forward with the appeal suit in A.S.No.411 of 2007. Except the Property Tax Register Extract dated 30.01.1998, other documents, which are sought to be produced are the certified copies of the depositions in O.S.Nos.430 of 2000 and 732 of 1998 on the file of the District Munsif Court, Salem, in which, the petitioners were the defendants. Therefore, the petitioners had knowledge of these documents and they have not produced them during trial and the petitioners have not given any reason for not producing the documents. Hence, the first respondent/plaintiff prayed for the dismissal of the petition.
10.After hearing the arguments of both sides counsel, the following points for consideration are framed:
1.Whether there is any sufficient cause for reception of document filed along with M.P.No. 1 of 2011?
2.Whether there is any sufficient cause for reception of documents filed along with M.P.No.2 of 2011?
3.Whether the trial Court is correct in held that the plaintiff is entitled to a decree as prayed for in the plaint?
4.Whether the plaintiff is entitled to the costs of the suit?
5.Whether it is a fit case for remanding the matter to the trial Court?
6.To what relief, the appellants/defendants 1 to 5 are entitled to?
11. For the sake of convenience, the parties are referred to as they are ranked in the trial Court.
12.The plaintiff filed a suit for declaration of title and recovery of possession stating that she is in possession and enjoyment of the properties purchased under Exs.A4 and A7. Since the defendants attempted to trespass into the properties, she filed a suit in O.S.No.430 of 2000 for relief of permanent injunction. During the pendency of the suit, she filed the present suit in O.S.No.52 of 2005 for declaration of title and recovery of possession. The suit in O.S.No.430 of 2000 was dismissed as withdrawn stating that she has “not pressed” the suit. After the suit in O.S.No.52 of 2005 has been decreed in favour of the plaintiff without costs, against which, the defendants 1 to 5 have come forward with the Appeal Suit in A.S.No.411 of 2007. Since the suit was decreed without costs, the plaintiff has come forward with the Appeal Suit in A.S.No.465 of 2008 for costs. These are all admitted facts.
13. The learned counsel for the defendants 1 to 5 submitted that item Nos.1 and 2 of the suit properties are formed part of the item No.3 of the suit property. Originally, the properties were owned by one Sengoda Gounder and his family. They were entered into a partition deed under Ex.A1 on 20.02.1956. The case of the defendants 1 to 5 is that even though the plaintiff has putforth her claim on the basis of Exs.A4 and A7, but the defendants alone in possession and enjoyment of the same. So they prescribed their title by adverse possession. In their written statement, they disputed the sale deeds in favour of the plaintiff and the predecessors, which are not binding them. In such circumstances, it is the duty of the plaintiff to prove her title to the property. He further submitted that even though the plaintiff purchased the suit properties, neither the plaintiff nor her predecessors in title were in possession and enjoyment more than the statutory period. So they lose their title to the property. Hence he prayed for setting aside the judgment and decree passed by the trial Court. During the pendency of the appeal suits, the defendants 1 to 5 have come forward with M.P.No.2 of 2011 for reception of additional evidence.
14.Refuting the same, the learned counsel for the plaintiff submitted that originally the properties were allotted to the share of Sengoda Gounder and there was a partition between them under Ex.A1, in the said partition, the suit properties were allotted to the share of Vellayammal, who is the second wife of Vaiyapuri (who is the son of Sengoda Gounder) and her five sons, who sold the same under Exs.A3 and A5. Subsequently, the plaintiff purchased the same under Exs. A4 and A7. From the date onwards, she was in possession and mutation of revenue records were made. She also filed the document to show that she was in possession. Since the defendants trespassed into her property, she filed the suit in O.S.No.430 of 2000, but the said suit was dismissed as withdrawn, she forced to file the suit in O.S.No.52 of 2005 for declaration of title and recovery of possession. So the trial Court considered this aspect in proper perspective, decreed the suit without costs. There is no need to remand the matter to the trial Court. He further submitted that at the time of trial, he filed Ex.A12, which is a certified copy of the Re-settlement Register related to Padmavathy, the plaintiff. But he wants to produce the certified copy of the Re-settlement Register, which shows the transfer of patta in the name of the plaintiff’s predecessors in title (i.e.) Manickavasagam and Nagarathinam Ammal and this document is necessary for the disposal of the appeal suits. Since the document has been mingled with the papers of the lower Court counsel, due diligence in conducting the case before the trial Court and was unable to trace out the same and filed before the trial Court. If the said document would be marked at the time of trial, it would really falsify the case of the defendants. Now he is ready to produce the said document. Hence he prayed for allowing M.P.No.1 of 2011 for reception of the additional evidence and prayed for the dismissal of the appeal suit in A.S.No.411 of 2007.
15.The learned counsel for the plaintiff further submitted that the documents filed by the defendants 1 to 5 as an additional evidence are available at the time of trial, but no reason has been assigned by them that why they have not filed the same before the trial Court. So the documents filed are not an admissible evidence and those documents are also not relevant for the disposal of the appeal suits. Hence he prayed for the dismissal of M.P.No.2 of 2011.
16.Point No.1:
(i) The plaintiff filed the suit for declaration of title and recovery of possession stating that the properties were originally owned by the family of Sengoda Gounder. The genealogy of the parties is shown below:
Sengoda Gounder
|
Vaiyapuri Gounder (son)
|
—————————————————-
| |
Chinnammal Vellayammal
(first wife) (second wife)
| |
----------- --------------------------------------------------------
| | | | | | |
Palanisamy Kandasamy Lakshmanan Periya Adappan Periyathambi Chinnathambi
Gounder Gounder Sengodan @ @ @
Pera Vaiyapuri Sengoda
Pandaram Gounder
|
Chinnathayammal (wife)
| (D1)
-----------------------------------------------
| | | |
Indira Gandhi Shanthi Kamala Sakthivel Murugan
(Daughter) (Daughter) (Daughter) (son)
D2 D3 D4 D5
(ii) The properties are allotted to the share of Vellayammal and her five sons under the registered partition deed dated 20.02.1956, which was marked as Ex.A1. Periya Thambi @ Vaiyapuri executed the Release deed dated 01.07.1970 under Ex.A2, in favour of Vellayammal, the second wife of Vaiyapuri and her sons Lakshmanan and Adappan @ Perapandaram. Admittedly, the first defendant is the wife of Adappan @ Perapandaram and the defendants 2 to 4 are their daughters and the fifth defendant is their son. Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram executed the sale deed in favour of one Manickavasagam under Ex.A3 and the original was marked as Ex.A35. In turn, he sold the same in favour of the plaintiff under Ex.A4 and the original was marked as Ex.A20. Another portion was sold by Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram to Nagarathinam Ammal on 05.03.1974, which was marked as Ex.A5. In turn, she sold the same to one Mohan Kumar under Ex.A6 and the said Mohan Kumar sold the same to the plaintiff under Ex.A7 dated 31.08.1981. On the basis of the sale deeds under Exs.A4 and A7, the plaintiff filed the suit for declaration of title and recovery of possession. The defendants raised the plea that they are in possession and enjoyment of the suit properties and the plaintiff was never in possession and enjoyment of the same.
(iii)The trial Court after considering the evidence of P.W.1 and P.W.2 and D.W.1 and considering the documentary evidence, decreed the suit without costs, against which, the present appeal suits have been preferred by both the plaintiff and the defendants 1 to 5.
(iv)The learned counsel for the plaintiff submitted that the plaintiff has come forward with M.P.No.1 of 2011 for reception of additional evidence stating that as soon as the plaintiff’s predecessors in title purchased the properties and mutation of revenue records were made, to prove the same, Exs.A8 and A12-the Re-settlement Register were marked, but it stands in the name of the plaintiff. At the time of filing, the plaintiff was under impression that she filed the Re-settlement Register stands in the name of her predecessors in title, which was mixed with lower Court counsel’s papers. So she was unable to produce the same. Now this document is necessary to pronounce judgment. Since the defendants 1 to 5 have raised the defence that even though the sale deeds have been executed in the year 1974, no mutation of revenue records and patta stands in the name of the predecessors in title. Hence she prayed for reception of that document to be received as an additional evidence.
(v) As per Order 41 Rule 27 C.P.C., the person, who wants to adduce additional evidence must prove three ingredients:
(1) The document is produced before the trial Court, but the trial Court refused to receive and rejected the same.
But here, no such pleading and no such argument was advanced by the learned counsel for the plaintiff.
(2) In due diligence, he was unable to obtain the document.
(3)Whether this document is necessary for pronouncing judgment or any other substantial cause?
At this juncture, the learned counsel for the plaintiff submitted that Exs.A8 and A12 are the certified copies of the Re-settlement Register, to show that the properties stand in the name of the plaintiff. But he prayed for the reception of additional evidence (i.e.) certified copy of the Re-settlement Register dated 04.11.1974 stands in the name of the predecessors in title of the plaintiff, which was mingled with the case bundles of the lower Court counsel. He further submitted that this document is necessary to prove that the plaintiff’s predecessors in title purchased the properties and taken steps for mutation of revenue records and also taken steps to transfer the name of the patta. So this document is necessary to pronounce judgment.
(vi)At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the plaintiff, reported in (a) AIR 2004 Supreme Court 3685 (Jayaramdas and Sons v. Mirza Rafatullah Balg and others) in paragraphs-8 and 9, it read as follows:
“8.It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.
9.As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub rule (1) in its mind for dealing with the appellants’ application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency in the application filed by the appellants.”
(b) (2006) 9 SCC 772 (State of Gujarat and another v. Mahendrakumar Parshottambhai Desai (Dead) by Lrs. ), in paragraphs-10, 11 and 12, it read as follows:
“10. .. .. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for substantial cause since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corpn. for Greater Bombay v. Lala Pancham wherein this Court held that though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.
11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the government records and they could have been produced in the suit.
12. .. .. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellant State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.
(c) (2007) 14 Supreme Court Cases 257 (K.R.Mohan Reddy v. Net Work INC. represented through MD), in paragraphs-17 and 18, it read as follows:
“17. It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the respondent-plaintiff had proceeded on the basis that the suit is entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate court to arrive at a just conclusion.
18. The Supreme Court in State of Gujarat v. Mahendrakumar Parshottambhai Desai relying upon Municipal Corpn. of Greater Bombay v. Lala Pancham held as under: (SCC p.775, para 10)
10. though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. ”
Considering the above citations, since the document is necessary for pronouncing judgment and the document is a public document, which is a Re-settlement Register to prove that the patta has been changed from Vaiyapuri, son of Sengoda Gounder to the predecessors in title of the plaintiff, this document is necessary for pronouncing judgment. Hence, M.P.No.1 of 2011 is liable to be allowed and the additional document is marked as Ex.A36. Point No.1 is answered accordingly.
17.Point No.2:
(i) The learned counsel for the defendants 1 to 5 filed M.P.No.2 of 2011 along with this appeal suit, for reception of additional evidence such as (1) the deposition of first respondent in an earlier suit between the same parties namely O.S.No.732 of 1998, (2) the deposition of respondent in earlier suit in O.S.No.430 of 2000 (3) the deposition of the third petitioner/Shanthi herein in O.S.No.430 of 2000 (4) An extract from the Property Tax Register (5) the plaint in O.S.No.430 of 2000 and (6) petition and orders in I.A.No.599 of 2005. Since all those documents were available at the time of trial, the defendants 1 to 5 have not assigned any reason that why they have not filed those documents before the trial Court.
(ii) At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the defendants 1 to 5 reported in (a) (2009) 2 MLJ 372 (Thiruvenkadam v. Saroja and others), it reads as follows:
“I.”In law, it is incumbent upon the appellate Court to hear the petitioner for receipt of additional evidence along with the appeal and failure thereof would render injustice to the parties.”
2.It is required that the appellate Court has to advert its concentration to the merits of the appeal and the features available in the additional document and to come to a conclusion whether the document could be received in additional evidence or not; proved, the person seeking the relief should comply with the requirements under Order 41 Rule 27 C.P.C. Without considering those aspects, merely closing the application is not appreciated.”
(b) 2009 (1) CTC 751 (Muzaffar Ali v. Dasaram) in paragraph-4, it reads as follows:
“4. The High Court is now requested to decide the Second Appeal along with the Application under Order 41, Rule 27 of the C.P.C. on merits within a period of three months from the date of supply of a copy of this order. While deciding the same, the High Court shall also consider the reasons for rejection of the Application under Order 41, Rule 27 of the C.P.C. given by the Appellate Court. ”
(c)2009-2-L.W.483 in the Supreme Court of India (Jatinder Singh and another, Minor through Mother v. Mehar Singh and others) in paragraph-4, it reads as follows:
“4.While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.”
(d) 2010(11) Scale 614 (Malayalam Plantations Ltd., v. State of Kerala and another) in paragraphs-10 and 11, it read as follows:
“10.In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. Vs. Mehar Singh & Ors. AIR 2009 SC 354 and Shyam Gopal Bindal and Others vs. Land Acquisition Officer and Another, (2010) 2 SCC 316.
11.If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. ”
While considering the above decisions, in that it was decided that as per Order 41 Rule 27 C.P.C. a petition was decided on merits by the appellate Court. But here, a petition is filed for reception of additional evidence. The plaintiff filed her detailed counter affidavit that except the Property Tax Register Extract dated 30.01.1998, the other documents are related to the previous proceedings between both the parties. The defendants 1 to 5 have not assigned any reason as to why they have not filed the same before the trial Court. They have also not assigned any reason, how these documents are necessary for pronouncing judgment. As per the dictum laid down in (2006) 9 SCC 772, no one has been permitted to fill up the lacunas in the case. In such circumstances, I am of the view that these documents are not necessary for pronouncing judgment. Because the parties in those documents are not inter-parties. Hence I am of the view that the reason assigned by the learned counsel for the defendants 1 to 5 is not sufficient to allow these documents as an additional evidence. Hence M.P.No.2 of 2011 is liable to be rejected and hence it is hereby rejected. M.P.No.2 of 2011 is dismissed. Point No.2 is answered accordingly.
18.Point Nos.3 and 5:
(i) The learned counsel for the defendants 1 to 5 submitted that it is a fit case for remanding the matter to the trial Court to give an opportunity to both sides to let in their evidence. To substantiate the same, he relied upon the decisions reported in 2009-2-L.W.944 (Ramasamy v. Ramachandran), in paragraph-14, it reads as follows:
“14.Coming to the import of the provisions in Rules 23 and 23-A of Order XLI of CPC, a clear finding has to be furnished by the Appellate Court for remanding matter. As per the amendment to Rule 23 of Order XLI of CPC by Madras High Court, if the Appellate court considers it necessary in the interest of justice to remand the case, it can be done and as per Rule 23A, if the court considers a re-trial is necessary, the remand could be ordered. Bearing in mind the above said statutory requirements, while the present matter is subjected to scanning, it is to be observed that the Appellate Court has expressed its view unambiguously that there are sufficient grounds for re-trial and the remand could be in the interest of justice.”
He submitted that the Appellate Court has a right to remand the matter to the trial Court for re-trial. There is no quarrel over the proposition. So this Court has to decide that whether it is a fit case for remanding the matter to the trial Court.
(ii) The learned counsel for the plaintiff relied upon the decision reported in AIR 2009 SC 2966 (T.K.Mohammed Abubucker (Dead) through L.Rs. and others v. P.S.M.Ahamed Abdul Khader and others), in paragraph-14, it reads as follows:
“14.The Letters Patent Bench overlooked the fact that a plaintiff in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants. It also overlooked the fact that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours/villagers, were examined. There was therefore no evidence about previous possession. In fact, plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession.”
He submitted that the burden of proof is on plaintiff to make out his title and entitlement to possession. He cannot succeed on any alleged weakness in title or possession of defendant. Now the Court has to decide that whether the plaintiff has proved her case or not.
(iii) Admittedly, the properties are owned by Sengoda Gounder and the properties are ancestral properties of the defendants 1 to 5. There was a partition between the family of Sengoda Gounder under Ex.A1. As per Ex.A2, Periyathambi@Vaiyapuri has executed a release deed in favour of his mother Vellayammal and his two brothers Lakshmanan and Adappan @ Pera Pandaram. In turn, sold the same to Manickavasagam under Ex.A3, which is equal to Ex.A35. But Manickavasagam, in turn, sold the same to the plaintiff under Ex.A4, which is equal to Ex.A20. Item No.2 of the suit property was sold by Vellayammal and her two sons Adappan @ Pera Pandaram and Lakshmanan in favour of Nagarathinam Ammal under Ex.A5, in turn, she sold the same to one Mohan Kumar under Ex.A6. Mohan Kumar sold the same under Ex.A7 in favour of the plaintiff. So the plaintiff claims title under the documents. Adappan @ Pera Pandaram’s wife and children are the defendants 1 to 5 herein.
(iv) The defendants 1 to 5 filed the documents under Exs.B1 to B11, which are certified copies of the order passed by the Assistant Commissioner of Urban Land Tax. Ex.B1 is a certified copy in respect of T.S.Nos.79/28 and 79/32 in the name of Adappan @ Perapandaram and Vaiyapuri. It is pertinent to note that item No.1 of the suit property consisting of T.S.No.79/42, measuring 40 feet East-West and 70 feet North-South with total extent of 2800 sq.ft. and item No.2 of the suit property consisting of T.S.No.79/43, measuring 10 feet East-West and 70 feet North-South with total extent of 700 sq.ft. The properties in T.S.Nos.79/42 and 79/43 are composite description of Item No.3 of the suit property. As per Ex.B1, it is not related to the suit property. Exs.B2 and B5-certified copies in respect of T.S.Nos.79/31 and 79/40 in the name of Manonmani, daughter of Adappan, are also not related to the suit property. Exs.B3 and B4-certified copies in respect of T.S.No.41 in the name of Madeswari, daughter of Adappan, are also not related to the suit property. Ex.B6-certified copy of the Town Survey Plan for T.S.Nos.79/42 and 43 with Town Survey Register showing the names of Shanthi and Indira Gandhi (D2 and D3), daughters of Adappan @ Pera Pandaram, measuring 2800 sq.ft. + 2800 sq.ft., which was issued on 21.09.2005. Ex.B7-chitta also stands in the names of the same persons D2 and D3. Ex.B8-property tax receipts stands in the name of Shanthi/D3. There is no evidence to show that the property is assessed to tax. In Ex.B8, town survey number was not mentioned, so no reliance can be placed on Ex.B8. Ex.B9=Ex.A18 and Ex.B10=Ex.A19 are the certified copies of the Commissioner’s report with plan in O.S.No.430 of 2000. Ex.B11 is the certified copy of the order passed in C.R.P.No.1077 of 2004 and C.M.P.No.10702/2004, in which, the order was passed in un-numbered I.A. of 2004 in O.S.No.430 of 2000 for examination of Sub-Inspector of Survey. Even though the High Court granted permission to dispose of O.S.No.430 of 2000, it was dismissed as withdrawn by the plaintiff. Hence Ex.B11 is also not relevant. Ex.X1 is a notice served on the defendants 1 to 5 by the plaintiff to produce the registered partition deed executed between Sengoda Gounder and others. So except Exs.B6 and B7, no document has been filed that the property is belonging to the family of the defendants 1 to 5 and they are in possession of the property.
(v) At this juncture, it is appropriate to consider that the plaintiff has proved that she is the owner of the property by way of filing documents eversince from 1956. Even though she sent notice to the defendants 1 to 5 to produce the registered partition deed dated 20.02.1956, they have not filed. So it is appropriate to consider the decision relied upon by the learned counsel for the plaintiff reported in AIR 1968 SC 1413 (Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others), in which, it reads as follows:
“.. .. A party in possession of best evidence which would throw light on the issue in controversy withholding it Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. .. ..”
Withholding best evidence, adverse inference can be drawn under Section 114(g) of Indian Evidence Act. So the secondary evidence, the registration copies of the partition deed and the release deed were marked as Exs.A1 and A2 and title deeds have been marked as Exs.A4 and A7, which are clearly proved that the plaintiff purchased the suit property from her predecessors. Originals were also marked under Exs.A20, A21 and A35, which are equal to Exs.A4,A7 and A3. So the title to the suit properties has been proved by the plaintiff.
(vi) The learned counsel for the defendants 1 to 5 submitted that even though the plaintiff purchased the properties under Exs.A4 and A7, she has no evidence to show that she was in possession of the suit properties. He further submitted that neither the plaintiff nor the predecessors in title were in possession and enjoyment of the property. But here, it is pertinent to note that the plaintiff has filed O.S.No.430 of 2000, which was evidenced by Ex.A16-plaint, Ex.A17-written statement filed by the defendants 1 to 5, Exs.A18 and A19 are the reports filed by the Advocate Commissioner with plan, which are equal to Exs.B9 and B10 and while perusing those documents, the Advocate Commissioner in his report, has stated that he visited the property on 20.08.2000, after identifying the suit properties, item Nos.1 and 2 have been mentioned as blue colour in the town survey map. He further stated that the properties bearing T.S.No.79/42, is in the name of Shanthi, daughter of Adappan @ Pera Pandaram. As per the town survey register extract, the said portion is a vacant site, in which, there was seven living ‘Thorny Shrub’ trees are standing and two milk yielding cows are tied in the said thorny trees. The properties mentioned in T.S.No.79/43 is in the names of Indragandhi and Shanthi, daughters of Adappan @ Pera Pandaram, in which, the western portion mentioned in the item No.2 of the petition is a vacant portion and the eastern portion, there is an R.C.C.terraced house. The Commissioner re-visited the same on 22.02.2003 and his report was filed under Ex.A19. In that, he has stated that the remaining portion in the said T.S.No.79/42 on the southern side of the said shed is now open, which was shown as red colour in the rough plan. He further stated that the defendants’ counsel handed over the lease deed dated 15.01.2003 executed between the defendant Shanthi and one Shankar, son of Vadivel, for running a car work shop in T.S.No.79/42. It clearly shows that during the pendency of O.S.No.430 of 2000, the defendants trespassed into the suit properties.
(vii) At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the plaintiff that merely because the defendants are in possession, it will not confer any title and they are not pleaded that they prescribed title by adverse possession. Here, they disputed the title to the plaintiff. To substantiate the same, the learned counsel for the plaintiff relied upon the decision reported in (2011)1 MLJ 515 (Chinnappa (died) and others v. Marudhan and others) submitted that the revenue records (i.e.) patta will not confer or extinguish any title to the holder of documents (i.e.) patta. So as per the above decision, the defendants 2 and 3 Indragandhi and Shanthi were not conferred any title under Exs.B6 and B7.
(viii) The learned counsel for the defendants 1 to 5 relied upon the decision reported in (1998) 1 SCC 614 (Indira v. Arumugam and another) in paragraphs-4 and 5, it read as follows:
“4.The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
———————————————————————————-
Description of suit Period of Time from which period
limitation begins to run
----------------------------------------------------------------------------------
65.For possession of immovable Twelve years When the possession
property or any interest of the defendant
therein based on title. becomes adverse to
the plaintiff.
----------------------------------------------------------------------------------
5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. .. .."
He submitted that if the suit for possession of immovable property based on title, initial burden on plaintiff to prove his title, once title is established on the basis of relevant documents and other evidence, unless defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Under Article 142 of the earlier Limitation Act, the plaintiff had to prove not only title, but also possession within 12 years of the date of the suit. After the amendment of the Limitation Act under article 65 of the New Act, the plaintiff is entitled to recovery of possession.
(ix) As per the above decision, the plaintiff has filed the original title deeds and proved that she is the owner of the property and also to prove the same, kists receipts are marked under Exs.A22 to A29 and patta has been changed in her name are marked under Exs.A30 and A31 and chitta stands in her name are marked under Exs.A32 and A33. As soon as the plaintiff’s predecessors in title purchased the properties, patta has been changed into their names, which was evidenced by Ex.A36, a Re-settlement Register, in that it clearly shows that S.No.79 and old S.No.507 stands in the name of Vaiyapuri, son of Sengoda Gounder. Subsequently, patta was changed as per P.T. 567/II/77 dated 17.04.1968 in favour of Lakshmanan, Sengodan, Adappan, Vaiyapuri, Sengodan, who are sons of Vaiyapuri Gounder. On 25.08.1973, a joint patta has been issued along with Srinivasan, son of Kumarappa Gounder in P.T.345/II/83. On 13.08.1973, a joint patta has been issued as per P.T.289/2/83, in favour of Indraniammal, wife of Pachamuthu. On 04.09.1973, a joint patta has been issued as per P.T.400/2/83 in favour of V.Venkatesan, son of Varadappa Naidu. On 05.11.1973, patta has been issued in favour of Sivaprasakasam, son of Ramachandran as per P.T.680/2/83. On 24.08.1974, patta has been issued in favour of B.Nagarathinam Ammal and B.Manickavasagam as per P.T.353/2/84 and P.T.354/2/84, who are the predecessors of the suit property from the father of the defendants Adappan @ Pera Pandaram along with his brother Lakshmanan and mother Vellayammal. So the argument advanced by the learned counsel for the defendants 1 to 5 to prove their possession, no mutation of revenue records were made as soon as they purchased the property in 1974, does not merit acceptance.
(x) It is clearly proved that the predecessors in title of the plaintiff purchased the property and taken steps for mutation of revenue records. Subsequently, they are in possession and sold the same in favour of the plaintiff. After purchasing the properties, the plaintiff changed the patta in her name and enjoying the same. After the Advocate Commissioner’s visit to the suit properties, the plaintiff came to know that the defendants 2 and 3 were encroached upon the properties. Immediately she filed a petition to amend the plaint for mandatory injunction. During the pendency of the suit in O.S.No.430 of 2000, she filed a suit for declaration of title and recovery of possession. As already stated that the defendants 1 to 5 never proved their title and neither pleaded adverse possession nor proved the same. In such circumstances, the trial Court has come to the correct conclusion that the defendants are liable to hand over the possession to the plaintiff, since the plaintiff proved her title to the suit properties. So the argument advanced by the learned counsel for the defendants 1 to 5 that the plaintiff has not proved her possession within 12 years after filing of the suit, does not merit acceptance. As per the dictum laid down in (1998) 1 SCC 614, once the plaintiff proved her title to the suit properties, she is entitled to recovery of possession. Hence I am of the view that there is no reason for remanding the matter to the trial Court for re-trial. So it is not a fit case for remanding the matter to the trial Court and the plaintiff is entitled to the declaration of title and recovery of possession. Point Nos.3 and 5 are answered accordingly.
18. Point No.4:
The learned counsel for the plaintiff submitted that the trial Court has without assigning any reason decreed the suit without costs. To substantiate his argument, he relied upon the decision reported in 2010(6) CTC 901 (J.P.Builders & another v. A.Ramadas Rao and another), in which, it reads as follows:
“Held: Though no serious argument was advanced about the award of cost, in the grounds raised in the Appeal, the Appellants have agitated the award of cost by the High Court in favour of the plaintiff. Section 35 of the C.P.C. speaks about Cost. Inasmuch as the Plaintiff after valuing the Suit paid a substantial Court fee of Rs.41,66,326.50 and ultimately he secured a decree for specific performance though he could not secure a relief in its entirety, the Plaintiff is entitled for his cost. It is not in dispute that the Court has granted the major relief, namely, decree for Specific Performance subject to clearance of the mortgage debt. In those circumstances, the High Court having noticed the payment of substantial Court fee ordered cost payable by the contesting Defendant Nos. 1 and 2 to the Plaintiff… ..”
Once the Court has granted major relief, the Court ought to have ordered costs. Admittedly, the plaintiff has paid Rs.39,250/- as court fee for the market value of the property of Rs.5,10,000/-. In such circumstances, as per the above citation, I am of the view that the plaintiff is entitled to the costs of the suit. Hence, A.S.No.465 of 2008 filed by the plaintiff is liable to be allowed and hence it is hereby allowed. Point No.4 is answered accordingly.
19.Point No.6:
In view of the answers given to point Nos.1 to 5, the plaintiff is entitled to the decree as prayed for in the plaint with costs. Since the defendants 1 to 5 are not entitled to any relief, the appeal suit filed by them deserves to be dismissed with costs. Hence, A.S.No.411 of 2007 is hereby dismissed with costs.
20. In fine,
M.P.No.1 of 2011 filed by the plaintiff is allowed.
M.P.No.2 of 2011 filed by the defendants 1 to 5 is dismissed.
A.S.No.411 of 2007 is dismissed with costs.
A.S.No.465 of 2008 is allowed with costs.
kj
To
1.The Additional District Court
(Fast Track Court No.II), Salem.
2. The Record Keeper,
VR Section, High Court,
Madras
