JUDGMENT
S. Ashok Kumar, J.
1. The defendant who lost before both the courts below is the appellant herein.
2. The plaintiff filed the suit against the defendant for the relief of declaration and for permanent injunction restraining him from interfering with his possession with reference to the suit property situate in S. No. 145/2, measuring 33 cents. In the plaint, the plaintiff pleaded that he derived title to 9 cents by way of a sale deed dated 19.3.1953 and the rest of the extent i.e., 24 cents is his ancestral property. The plaintiff also claimed title on the basis of adverse possession. The plaintiff admits the title of the defendant in S. No. 145/1 which is situated to the west of the suit property. But he pleaded that the suit property was never in possession or enjoyment of the defendant.
3. The defendant resisted the suit admitting title of the plaintiff with reference to 9 cents, but disputed the title with respect to the remaining 24 cents in S. No. 145/2 contending that the same belongs to him as he had inherited the same from his father Appadurai. The defendant also claimed title by way of adverse possession.
4. Pending the proceedings before the trial court, the plaintiff sought to produce A. Register, issued by the Revenue Department in support of his claim for 24 cents, by filing an interlocutory application. But the trial court rejected the said application and granted a decree only for 9 cents and rejected the claim for 24 cents. The learned Trial Judge also held that the defendant has not preferred title by adverse possession. As against the same, the plaintiff an appeal before the learned Subordinate Judge raising a specific ground that refusal in admitting the A Register by the learned trial Judge is erroneous in law. But the first appellate Judge also dismissed the appeal confirming the judgment and decree of the trial court. Hence the present second appeal by the plaintiff.
5. At the time of admission, this Court framed the following substantial questions of law:
(i) Is the learned Subordinate Judge correct in dismissing the suit for want of A Register, when the same was marked at the time of trial and it was rejected?
(ii) Is the learned Subordinate Judge correct in holding that the defendants have perfected title over the suit property when there is absolutely no evidence to prove their possession?
(iii)Whether the learned Subordinate Judge is correct in dismissing the suit when the plaintiff has produced patta and kist receipts to show his possession for the 33 cents mentioned in the suit property?
(iv) Whether the learned Subordinate Judge is correct in not declaring the right of the plaintiff over the suit property as the boundary description to the suit property is not given, when there is no dispute between the parties regarding the identity of the property?
6. Learned senior counsel appearing for the appellant contended that there is no appeal or cross appeal filed at the instance of the defendant to claim title to 24 cents. At the same time, the plaintiff has produced patta and demand notice with regard to the said 24 cents. Learned senior counsel also contended that in Exs.B.3 to B.12 there is no seal of the Revenue Department affixed therein, which fact has also been admitted in evidence. According to the learned senior counsel, those exhibits are only prepared for the purpose of the case and the remaining Exs.B.13 to B.15 are after filing of the suit. Learned senior counsel mainly contended that in the absence of title deeds, the Settlement Register can be treated as document of title and non consideration of the same by the first appellate court vitiate the judgment.
7. Per contra, learned Counsel appearing for the respondents by producing a copy of Ex.B.1 contended that the said document is a copy of the compromise entered between the defendant and his pangalies in which it is stated that the parties to the criminal complaint have settled the dispute among themselves. Relying on this, learned Counsel for the respondents/defendant contended that from this it is clear that the suit property belonging to the defendant. Learned Counsel also contended that the appellant/plaintiff has not preferred any Cross Appeal or Civil Revision Petition to this Court as against the refusal to accept A-Register by the trial court. Having filed the suit the plaintiff has to prove the case by filing documents and mere saying that it is his ancestral property will not prove the case.
8. As rightly pointed out by the learned senior counsel for the appellant though specific ground has been raised in the memorandum of appeal in the first appeal, the learned Subordinate Judge has not considered the said issue and simply confirmed the finding of the trial judge who held that no records had been filed to show the title of the appellant when in ground No. 8 the appellant contended that A.Register is the complete answer to the title of the appellant, which is erroneous in law.
9. In the said A.Register the plaintiff has been shown as the owner of 0.33 cents in S. No. 145/2, which is of the year 1964. In 2002(2) MLJ 210, this Court held that extract of Settlement Register can be accepted as evidence of title. In AIR 1973 (SC) 1299, the Supreme Court has held that the entries in the revenue records for large number of years in respect of ownership and possession of land with certain persons does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. In the present case the plaintiff has produced Exs.A.2 and A.3 namely Kachayat Book and Patta Book respectively to prove his possession of the suit property. Thus the finding of the first appellate court that the plaintiff has not produced any document to prove his possession with regard to 24 cents without considering the A-register which shows the ownership and possession of the suit property by the plaintiff.
10. It is also to be pointed out that in his cross examination D.W.1 has admitted that he does not know A.3 patta was issued in favour of the plaintiff as per his enjoyment. The first appellate court only relying on the recitals regarding payment of tax for the patta held that the defendant has prescribed title by adverse possession even though it held that he did not file any chitta or adangal.
11. Thus if the findings of the courts below are not supported by evidence or passed on misconception or erroneous and perverse, this Court can interfere in the Second Appeal as has been held by this Court in A.P.Sagar and other v. Govindaswamy Gramani, reported in 1996 (I) MLJ 146 and by the Supreme Court in O.T.M O.M Meyyappa Chettiar v. O.T.M S.M. Kasi Viswanthan Chettiar and Anr. reported in 1994 (I) MLJ SC 28.
12. As rightly pointed out by the learned senior counsel for the appellant, Ex.B.1 is between the defendant and his Pangalies and the plaintiff is not a party to the dispute and the said compromise memo will not bind the plaintiff in the present case and at the best it can be taken as a supporting document to prove the defendant’s case. Moreover, both the courts below have held that Ex.B.1 does not relate to the suit property. Likewise, learned senior counsel also rightly contended that no revision shall lie against the order rejecting document admitted in evidence pending trial, but the said order can be questioned when an appeal is filed against the decree in the suit as has been held in 1969 (I) MLJ 43. It has been held in Sambandam and Anr. v. Guru Chandrasekaran and Ors., reported in 1996 (I) MLJ 43, that Order 41, Rule 27(1)9a) CPC deals exactly with a similar situation. Under that provision the parties in appeals are entitled to adduce additional evidence in the appellate forum after the trial court has refused to admit evidence which ought to have been admitted.
13. The Supreme Court in Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors. held that-
It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Rode 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising the controversy. Under these circumstances the trial court was not justified in refusing to condone the delay and to receive the documents.
14. The above decisions of the Supreme Court and this Court cited earlier are squarely applicable to the facts of the present case and the first appellate court has committed an error in not considering the admissibility of the documentary evidence namely A.Register produced by the plaintiff and its findings are based without considering the documentary evidence which is liable to be interfered in this second appeal under Section 100 CPC.
15. For the reasons stated above, both the questions of law are answered in favour of the appellant and in the result, the Second Appeal is allowed, setting aside the judgment and decree of the first appellate court. The suit is decreed in its entirety as prayed for. No costs.
