BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:31/10/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A(MD)No.1672 of 2001 1. Stephen 2. Austin 3. John ... Appellants/Defendants Vs. 1. Paranjothi 2. Gnanaprakasam 3. Durairaj ... Respondents/Plaintiffs Prayer Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.169 of 1998 on the file of the Principal District Judge, Tuticorin dated 10.10.2000 confirming the judgment and decree made in O.S.No.423 of 1991 on the file of the District Munsif Court, Srivaikundam dated 21.08.1998. !For Appellants ... Mr.S.Kadarkarai ^For Respondents... Mr.M.P.Senthil for A.Kanagasundaram :JUDGMENT
This Second Appeal is focussed by the original defendants animadverting
upon the judgment and decree dated 10.10.2000, passed in A.S.No.169 of 1998 by
the learned Principal District Judge, Tuticorin in confirming the judgment and
decree dated 21.08.1998, passed in O.S.No.423 of 1991 by the learned District
Munsif, Srivaikundam.
2. The parties, for the sake of convenience, are referred to hereunder
according to their litigative status and ranking before the trial Court.
3. Narratively but precisely, broadly but briefly, the relevant facts
absolutely necessary and germane for the disposal of this appeal would run thus:
The plaintiffs filed the suit seeking the reliefs of declaration and
permanent injunction in respect of the suit property on the main ground that the
suit property and the adjacent properties originally belonged to their father
viz., Arumuganainar Nadar, who subsequently came to be known as Arulprakasam
Nadar and after his death, they inherited the properties and got the properties
partitioned among themselves under Ex.A1. While so, the defendants without any
manner of right whatsoever started laying claim over the suit property found set
out in the plaint, which necessitated the plaintiffs to file a suit.
4. The defendants resisted the claim by filing the written statement
averring as though there is a pathway in the suit property, dedicated for the
use of the villagers, including the students and the defendants herein.
5. Whereupon, relevant issues were framed by the trial Court.
6. During trial, on the side of the plaintiffs, Exs.A.1 to A.8 were
marked, however no oral evidence was let in. On the side of the defendants, the
second defendant examined himself as D.W.1, however no documentary evidence was
produced. The Advocate Commissioner was examined as C.W.1 and through him
Exs.C.1 to C.4 were marked.
7. Ultimately, the trial Court decreed the suit as against which, the
appeal was filed by the defendants for nothing but to be dismissed.
8. Being aggrieved by and dissatisfied with the judgments and decrees of
the Courts below, the defendants preferred this Second Appeal on various
grounds, suggesting the following substantial questions of law:
“(a) Whether the findings of the Lower Appellate Court not vitiated in law by
the failure to consider the entire evidence on record and fails to apply the
correct principle of law?
(b) Is it the first Appellate Court has not exercised its jurisdiction
vested on it under order 41 Rule 27 of Civil Procedure Code properly?
(c) Whether the Judgment and Decree of the courts below are vitiated for
not considering the Exhibits C1 and C2?
(d) Whether the Judgement and Decree of the Lower Appellate Court below
are vitiated for failing to considering the Additional evidence produced before
it, though it found it is relevant to the suit property?
(e) Is in law the plaintiff can rely on the defendant’s, to prove his
case?
(f) Whether a self serving document will support the case of a party, when
the person relies on it has failed to prove it?”
(Extracted as such)
9. I would like to fumigate my mind with the following principles as found
enunciated and enshrined in the following decisions of the Honourable Apex
Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court
Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE
300.
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
10. A bare poring over and perusal of the said decisions would
unambiguously and unequivocally highlight and spotlight the fact that unless any
substantial question of law is involved, the question of entertaining a Second
Appeal would not arise. Accordingly, I proceed to find out whether there is any
substantial question of law is involved in this Second appeal.
11. The learned counsel for the appellants/ defendants would put forth and
set forth his arguments thusly:
Both the Courts below failed to take note of the fact that the suit
property has been used by the villagers including the defendants as path way,
which fact was not taken note of by the Courts below. They failed to consider
the entire evidence available on record. Exs.C1 and C2 were ignored by the
Courts below. The first appellate Court failed to entertain additional evidence
under Order 41 Rule 27 of the Code of Civil Procedure. Accordingly, the learned
counsel for the appellants would pray for setting aside the judgment and decree
of both the Courts below and for dismissing the original suit.
12. In a bid to mince meat, and torpedo and pulverise the arguments as put
forth and set forth on the side of the defendants, the learned Counsel for the
plaintiffs would advance his arguments, which could pithily and precisely be set
out thus:
Both the Courts below appropriately and appositely, correctly and
convincingly after going through the oral and documentary evidence gave findings
based on facts to the effect that the defendants themselves did not claim any
right over the suit property, however, they claimed mere right of easement, in
other words a right to use the suit property as a pathway by themselves and by
the villagers and according to them such usage had been in force for a pretty
long time. The additional documents sought to be filed are in no way necessary
to decide the lis as they do not evidence that there is any public pathway in
the suit property; the plaintiffs documents would unambiguously and
unequivocally establish and prove that the plaintiffs are the owners of the suit
property and the plaintiffs father viz., Arumuganainar Nadar @ Arulprakasam
Nadar owned it and after his death, his sons viz., the plaintiffs enjoyed it as
absolute owners and got it partition among themselves.
13. At the outset, it has to be found out as to whether there is any
substantial question of law is involved. Both the Courts below placed reliance
on Ex.A1 – the partition deed dated 16.03.1981, which emerged among the three
plaintiffs and found that the suit property is included in it as their absolute
property. Ex.A2 is a gift deed dated 28.08.1934 executed by Gnanamuthu Nadar in
favour of Tirunelveli Diocese Trust Association and that property is situated to
the North of the suit property and there is no indication about any pathway to
the South of that property. No representative suit has also been filed by any
one claiming pathway right over the suit property. Both the Courts below taking
into consideration the Commissioner’s Report and sketch and also the relevant
documents gave a clear finding that absolutely there is no evidence to show that
there is a path way in the suit property.
14. Exs.C1 and C2 were dealt with by both the Courts below and found that
the observation of the Commissioner are against the defendants’ claim. I could
see no perversity or illegality in the findings given. It has not been
highlighted as to how the additional documents viz., the field map and the
Natham Land Tax Scheme adangal extract would in any way prove the case of the
defendants. The first appellate Court clearly in para No.11 of its judgment
pointed out that the defendants candidly stated that they were having no revenue
records or documents or any other public document to establish any path way
existing in the suit property. The first appellate Court also observed that
those additional documents were even though available with the plaintiffs, they
had not chosen to file them in trial Court. Both the Courts below have also held
indubitably and indisputably that the defendants admitted candidly and
categorically that they do not have title over the suit property. Hence,
considering all these facts, I am of the view that there is no perversity or
illegality in the judgment and decree of the Courts below.
15. On balance, I do not see any question of law, much less any
substantial question of law is involved in this matter and the Second Appeal
deserves to be dismissed.
16. In the result, the Second Appeal is dismissed. No costs.
sj
To
1. The Principal District Judge,
Tuticorin.
2. The District Munsif Court,
Srivaikundam.
