ORDER
B.S.A. Swamy, J.
1. This appeal arises out of the judgment and decree in O.S. No. 262 of 1988 on the file of the District Munsif, Palamaner, Chittor District as confirmed by the District Judge, Chittor in A.S. No. 99 of 1994 dated 31.03.1999.
2. Both the Courts below concurrently held against the appellants/plaintiffs and dismissed the suit as well as the appeal. The learned counsel for the appellants Sri Vidya Saagar vehemently contended that both the Courts below gravely erred in holding that the appellants failed to produce any evidence to show that the deceased respondent obtained decree in O.S. No. 258 of 1985 on the file of the District Munsif, Punganur by playing fraud on the appellants by making an endorsement on the summons that the appellants refused to receive summons and the assertion of the appellants was denied by the respondents while they were in the witness box.
3. The factual matrix of the case are that an extent of 2 cannies 39 guntas and 6 veesams in the estate of Gundugallu Village, Punganur Jamin Estate was purchased by one Achappa Chetty who is the father of the 1st appellant and grand-father of the 2nd appellant long back. It is also not in dispute that the western side of the land was in possession and enjoyment of the respondents. It is also there in the evidence of the 1st respondent that in the year 1942 he mortgaged an extent of 2 cannies 39 Guntas 6 Veesas of land, which is equal to 2 acres 99 cents with the 1st appellant herein and in the year 1948 he redeemed the mortgage property. Subsequently the estate was abolished and survey operations were conducted in the village and the lands owned by the appellants as well as the respondents measuring about Ac 5.61 cents were shown in S. No. 98/3. Subsequently, in the year 1985, the respondent-deceased filed O.S. No. 258 of 1985 on the file of the District Munsif, Punganur seeking partition of the properties and delivery of possession of his share and also sought for permanent injunction restraining the appellants from interfering with his possession and enjoyment of the land for which he is entitled to. This suit seemed to have been decreed ex parte and there after, the respondent filed I.A. No. 1846 of 1987 for passing of the final decree. At this stage, the appellants having received the notice seemed to have filed an application to set aside the ex parte decree but the same did not yield results. Hence they filed a suit in O.S. No. 262 of 1988 seeking to set aside the preliminary decree passed in O.S. No. 258 of 1985 as the same was obtained by the respondents by playing fraud on them and also for a permanent injunction against the respondent-deceased from interfering with the possession of the suit schedule land.
4. From the pleadings it is seen that the dispute is now for a small extent of 19 cents. If the total extent of the land is divided equally, both the parties will get Ac 2.80 cents i.e., what exactly the appellants have claimed in the suit. But the respondents have obtained a preliminary decree for Ac 2.99 cents. If the decree obtained by the respondents is allowed to stand, even as per the version of the appellants, they may loose about 18 cents of dry land.
5. As stated supra, both the Courts concurrently found that the appellants failed to prove that the respondents have obtained a decree in O.S. No. 258 of 1985 fraudulently by obtaining an endorsement on the suit summons stating that the appellants have refused to receive summons. Aggrieved by the judgments of both the Courts below, the present second appeal is now filed by the appellants questioning the correctness of the judgments of the Courts below.
6. Sri Vidya Saagar, learned counsel for the appellants raised two contentions:
1) As the respondents did not deny the specific allegation made against them that they have obtained a preliminary decree fraudulently in O.S. No. 258 of 1985, a presumption will arise that they have admitted the allegations made against them, but both the courts below erred in holding that the appellants did not produce any evidence. 2) The second contention is that though the respondents sought for the relief of permanent injunction and paid the Court fee there on, both the Courts below did not frame any issue and record a finding on that issue. 7. Before considering the above said two aspects, let me consider the pleadings and evidence that was let in by the parties in the suit.
8. It is true that in paragraph 9 of the plaint, the appellants stated that the respondents managed to get the decree by obtaining false endorsement on the summons to the effect that the appellants have refused to receive the summons. Again in paragraph 9 of their written statement the respondents have categorically denied this allegation. Except stating that the respondents managed to get this endorsement, no further iota of evidence is produced before this Court by the plaintiffs.
9. The learned counsel for the appellants Sri Vidya Saagar now strenuously contends that the deceased-1st respondent in the witness box did not touch the aspect of making an endorsement on the summons. It is true that he did not speak anything about this allegation in the chief examination. But when an opportunity is given to the learned counsel for the appellants during trial to cross-examine the witness, he has not chosen to put even a single question on this aspect. The answer given by the learned counsel for the appellants is that when the respondent-deceased is silent on this aspect during the course of his chief examination, he cannot get an answer destroying the very case of him.
10. The case of the respondents is that after redeeming the mortgage in favour of the appellants, since 1948 they are in possession of the property and the learned counsel for the appellants in the trial Court would have questioned them about the need to file a suit for partition when they themselves are admitting that they are in possession of the property from 1948. Likewise, definitely, the extent would have been specific in the mortgage deed and the learned counsel in the trial Court would have confronted him in the evidence by saying that the respondents are entitled to Ac 2.80 cents only but not Ac 2.99 cents. Further, the law is well settled that a party to a proceeding should succeed or fall on his own case than relying upon the deficiencies of the other side. Viewed from that angle, except stating that the respondents have managed to get an endorsement on the summons stating that the plaintiffs have refused to receive the summons, no effort was made by the appellants to prove their contention. In cases of this nature, the Courts cannot simply rely upon the evidence of the interested witnesses without there being any corroborative evidence. Hence, to my mind, no illegality or irregularity was committed by the Courts below in rejecting the relief sought for by the appellants to set aside the decree in O.S. NO. 258 OF 1985 on the file of the District Munsif, Punganur. Though the learned counsel for the appellants Sri Vidya Saagar cited several judgments of the Supreme Court, I have no quarrel with any of the propositions put forth by the learned counsel but as the propositions put forth by the learned counsel even if accepted, they would not improve the case of the appellants. That is why I am not referring them in this judgment.
11. Coming to the second issue, it is true that the Courts below did not frame any specific issue as to whether the appellants are entitled for a permanent injunction and consider the case of the appellants only from the angle of fraud alleged to have been played by the respondents. When once the plea of the appellants that the respondents played fraud is rejected, no injunction can be granted in their favour restraining the respondents from interfering with their possession. Hence though the Courts below committed a procedural irregularity in not framing an issue whether the appellants are entitled for a permanent injunction or not, in the light of the view taken by me on the first issue, no injustice is caused to the appellants herein. Further, on that ground, if I remand the matter to the trial Court, I must keep in mind that the dispute is only for 19 cents of dry land which is not having any irrigation source and the litigation is going on from 1985 onwards. Hence, I am inclined to put a quietus to this issue. I do not find any merit in the second appeal.
12. The second appeal is accordingly dismissed. No order as to costs.