Venni @ Vennila v. Jenova & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.2.2011Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.801 of 2009andM.P.No.1 of 2011Venni @ Vennila ... Appellant/1st Defendantvs.1. Jenova2. Jayakumar.. Respondents/Plaintiffs & 3rd DefendantsThis second appeal is filed against the judgement and decreedated 27.10.2004 passed by the Additional District and SessionsJudge, Fast Track Court-III, Chennai in A.S.No.149 of 2001 confirmingthe judgement and decree dated 30.8.2000 passed by the XVIIAsst.Judge, City Civil Court, Madras, in O.S.No.2227 of 1998.For Appellant : Mr.R.Thiagarajan For Respondents : Mr.P.Vijaya Gandhi for R1 Mr.S.Baskaran for R2JUDGMENTThis second appeal is focussed by the first defendant,inveighing the judgement and decree dated 27.10.2004 passed by theAdditional District and Sessions Judge, Fast Track Court-III, Chennaiconfirming the judgement and decree dated 30.8.2000 passed by theXVII Asst.Judge, City Civil Court, Madras, in O.S.No.2227 of 1998,which was filed for partition and permanent injunction.2. The parties, for the sake of convenience, are referred tohere under according to their litigative status and ranking beforethe trial Court.3. Narratively but precisely, broadly but briefly the relevantfacts absolutely necessary and germane for the disposal of this https://hcservices.ecourts.gov.in/hcservices/ second appeal would run thus:(a) The first respondent herein, as plaintiff, filed the suitseeking the following reliefs:"to pass judgement and decree1. Directing the 2nd and 3rd defendants to divide theSchedule mentioned property in three equal shares bearingdoor No.4, Solai Street, Ist lane, Ayanavaram, Chennai-600023, which has been more fully described in the schedulehereunder and allot 1/3rd share to the plaintiff in thefront portion and separate possession to the plaintiff;ii) For a permanent injunction restraining thedefendants, their men, servants, agents or any one onbehalf of the defendants in any manner from interferingwith the peaceful possession and enjoyment of the suitproperty.iii) To appoint an Advocate Commissioner to effect thepartition in the suit property with metes and bound;iv) To direct the defendants to pay the cost of thissuit."(extracted as such)(b) Written statement was filed by D1, resisting the suit.Whereupon, the trial Court framed the issues.(c) On the side of the plaintiff, she examined herself as P.W.1and marked Exs.A1 to A5. On the defendants' side, the 1st defendantexamined himself as D.W.1 along with D.W.2 and D.W.3 and markedExs.B1 to B6.(d) During the pendency of the proceedings, D2 died, whereuponthe trial Court ultimately decided the suit allotting half share infavour of the plaintiff. (e) Being aggrieved by and dissatisfied with the same, D1 and D3filed the first appeal challenging and impugning the judgement anddecree of the trial Court. However, the first appellate Courtdismissed the appeal confirming the judgement and decree of the trialCourt.4. Animadverting upon the judgements and decrees of the Courtsbelow, the second appeal has been focussed by D1 on various groundsinter alia thus:(i) The Courts below failed to take into account the evidenceadduced on the side of the appellant/D1 and also the fact of D2 andD3 having executed the sale deed dated 15.7.1994 in favour of D1. (ii) The factum of the mortgage, over the suit property having https://hcservices.ecourts.gov.in/hcservices/ been discharged by D1 also was not considered by the Courts below. 5. Accordingly the following substantial questions of laws arefound suggested in the memorandum of grounds of second appeal."i) Whether the Courts below are right in entertainingthe suit for partition filed by the original plaintiff,viz., 1st respondent herein when she herself has admittedabout the agreement for sale in respect of the suit propertyin favour of the appellant along with her father and brotherwho had subsequently executed and registered a Deed of Saleon 15.7.94 in favour of the appellant herein and in suchcircumstances, the property having been dealt with by theheirs of late Pushpavathi, whether the conclusion reached bythe trial Court as well as the appellate Court that theproperty is available for partition and separate possessionand declaring the plaintiff's 1/3 share by the trial Court,which has been enlarged into half share by the appellateCourt, are perverse, unsound, unsustainable and untenable inlaw and on facts?ii) Whether the Courts below are right in entertainingthe suit for partition in the absence of a declaration thatthe Sale deed dt.15.7.2004 executed in favour of theappellant herein is illegal, invalid and non-est in the eyesof law?iii) Whether the Courts below are right in granting adecree for partition in the absence of a prayer for settingaside the sale made in favour of the appellant?iv) Whether the Courts below are right in granting ablanket decree for partition without reference to the rightsof the respondents 2 & 3 who have not chosen to challengethe alienation made in favour of the appellant?v) Whether the Courts below are right in granting adecree when the original plaintiff having lost possession ofthe property is entitled to seek for the relief ofinjunction on the date of institution of the suit and thegrant of a decree for injunction is against the teeth of theprovisions contained under Sec.44 of the Transfer ofProperty Act in the light of the Sale deed 15.7.1994 andthere cannot be a decree for injunction as against a co-owner as had been laid down in 1990 Supreme Court PageNo.867 in the case of Durab Cawasji Warden (appellant) v.Cooini Sorab Warden & Others (respondents)."(extracted as such) https://hcservices.ecourts.gov.in/hcservices/

6. Based on the available materials, my learned predecessorframed the following substantial question of law for consideration."When the defendants 2 and 3 have executed Ex.B6 saleagreement in favour of the first defendant though in respectof entirety of the suit property when admittedly, the secondand third defendants have got 1/3rd share each in the suitproperty and as such, they are entitled to execute the validsale deed in respect of their respective shares, whether theCourts below are right in not considering the same andgranting a decree for ½ share in favour of the plaintiff?"(extracted as such)7. During the pendency of the second appeal, M.P.1 of 2011 wasfiled by the appellant/D1 seeking permission to adduce additionalevidence by filing the following documents:Sl.No.DateDescription of documentsNature ofdocuments115.7.1994Sale Deed executed by S.Murugesanand another in favour of VenniOriginal211.3.1987Mortgage deed executed byS.Murugesan and another in favourof the Madras City Co-operativeHousing Society LtdOriginal327.7.1993Deed of receipt issued by theMadras City Cooperative HousingSociety Ltd.in favour ofPushpavathy referred as theMortgagorOriginal424.10.1985Building plan issued byCorporation of ChennaiOriginal514.9.1998Death Certificate of S.MurugesanOriginal620.11.1987Legal heir certificate ofM.PushpavathyOriginal7-Property Tax receipts (series) inthe name of VenniOriginal8-Property Tax Demand notice issuedby the Corporation of Chennai inthe name of Venni https://hcservices.ecourts.gov.in/hcservices/

8. Counter affidavits have been filed by both R1 and R2 hereinobjecting to the filing of such additional documents on the mainground that there were latches on the part of the appellant/D1 infiling such documents. 9. Heard both sides.10. The learned counsel for the appellant/D1 would submit thatD2-the father and D3-the son both executed the sale deed 15.7.1994 infavour of D1 and in fact, anterior to that sale deed, an agreement tosell emerged, wherein, the plaintiff, D2 and D3 were parties andexecuted it in favour of plaintiff agreeing to sell the suitproperty, however, at the time of getting the sale deed registered,the plaintiff even though received her share of the saleconsideration, did not come forward to sign, whereupon the sale deedwas constrained to be registered with the help of D2 and D3,covering the whole suit property and all these facts were not takeninto consideration by the Courts below.11. After execution of the sale deed by D2-the father relatingto his share, the question of D2's share, consequent upon his death,devolving upon his daughter-the plaintiff and his son D3 would notarise, but without considering this crucial point, the Courts belowsimply allotted half share in favour of the plaintiff, warrantinginterference in second appeal. 12. Placing reliance on M.P.No.1 of 2011, the learned counselfor the appellant/D1 would implore and entreat that absolutely it isnecessary to entertain the documents found set out therein, as thosedocuments are crucial to place the whole truth before the Court.13. Per contra, the learned advocates for the R1/plaintiff andR2/D2 would submit that the additional documents cannot holus-bolusbe entertained before the second appellate Court and thereby, convertthe second appellate Court into a trial Court and such a course isnot permissible. They would also submit that the Courts belowappropriately and correctly decided the lis, warranting nointerference in second appeal.14. At the outset itself I would like to fumigate my mind withthe following decisions of the Honourable Apex Court: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner ofIncome Tax, Delhi], certain excerpts from it would run thus:"19. It is manifest from a bare reading of thesection that an appeal to the High Court from a https://hcservices.ecourts.gov.in/hcservices/ decision of the Tribunal lies only when a substantialquestion of law is involved, and where the High Courtcomes to the conclusion that a substantial questionof law arises from the said order, it is mandatorythat such question(s) must be formulated. Theexpression "substantial question of law" is notdefined in the act. Nevertheless, it has acquired adefinite connotation through various judicialpronouncements..............22. In Hero Vinoth v. Seshammal, this Court hasobserved that : (SCC p.556, para 24)"(iii) The general rule is that the HighCourt will not interfere with the concurrentfindings of the courts below. But it is not anabsolute rule. Some of the well-recognisedexceptions are where (i) the courts below haveignored material evidence or acted on noevidence; (ii) the courts have drawn wronginferences from proved facts by applying thelaw erroneously; or (iii) the courts havewrongly cast the burden of proof. When werefer to 'decision based on no evidence', itnot only refers to cases where there is a totaldearth of evidence, but also refers to anycase, where the evidence, taken as a whole, isnot reasonably capable of supporting thefinding."(ii) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL;(iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs.S.N.GOYA:15. A bare perusal of the above precedents would exemplify anddemonstrate that if there is any perversity or illegality or whenthere is mistake on the part of the Courts below in mis-reading ofevidence or misapplication of law or not entertaining any evidence,the High Court has to necessarily interfere. 16. Here, in the written statement of D1, in detail the factswere not set out, even though there are certain facts found narratedrelating to the sale deed dated 15.7.1994 having been executed by D2and D3 in favour of D1. Axiomatically and obviously, however, itappears, inadvertently, the said sale deed itself was not filedbefore any of the Courts below and it appears to be an apparent https://hcservices.ecourts.gov.in/hcservices/ mistake on the part of D1 in not doing so. By no stretch ofimagination it could be stated that the sale deed is not at allrelevant to this case. It is absolutely necessary. Furthermore, themortgage deed dated 11.3.1987 executed by D2 and D3 and the wife ofD2, in my opinion is also relevant for deciding comprehensively thelis. The 3rd document, viz., the deed of receipt dated 27.7.1993 is adocument relating to the second document, referred to supra. Theother documents also are related to the facts of this case and onecannot hold that those are all totally irrelevant to this case.17. Now the question arises as to whether for the first timethose documents could be allowed to be filed at the appellate stage.18. I recollect the relevant provisions Order 41 Rule 27 readwith O.42, Rule 1 and S.100 of C.P.C.19. A bare perusal of the above provisions would demonstrate andconvey that even at the second appellate stage additional documentscould be entertained, then as a sequale, the consequences should bevisualised.20. After permitting the appellant/D1 to file additionaldocuments, necessary opportunity has to be given to the other sidealso to rebut such evidence and unilatorily without the consent ofthe other side relating to marking of the documents, the Court cannotsuo motu mark and dispose of the appeal and that would be amountingto non adherence to the principle of audi alteram partem. 21. I recollect the maxim 'Judicis est judicare secundumallegata et probata' - It is the duty of a judge to decide accordingto facts alleged and proved.22. Any amount of evidence without the backing of pleadingscannot be countenanced. As such, while considering the additionalevidence, necessarily this Court has to see as to whether additionalpleadings also are required. Here it is a case of such a nature thatboth the parties should also be given opportunity to put forth theiradditional pleadings, touching upon those documents, which are herebyheld to be very much relevant for comprehensively deciding the lis.23. I recollect the following maxim: Boni judicis est litesdirimere, ne lis ex lite oriatur, et interest reipublicae ut sintfines litium -It is the role of a good Judge to dispose oflitigations so that one suit should not grow from another, as itconcerns the welfare of the State.24. The first appellate Court itself, being the last Court offact, could have directed the parties concerned to do the needful. https://hcservices.ecourts.gov.in/hcservices/ No doubt, the first appellate Court simply remarked that sufficientevidence was not placed before the Court. In the interest ofjustice, if the Court feels that the evidence placed before it is,tenuous, weak, meek and bleak, despite the party concerned isperceived to be in possession of sufficient evidence, the Courtitself has got the power suo motu to direct the parties concerned toproduce such documents, but that was not done so. 25. Indubitably and indisputably, so far this case is concerned,D2-the father and D3-the son and the plaintiff-the daughter all hadshares in the suit property and it is the contention of D1 that inthe agreement to sell all those three owners joined together andexecuted the agreement to sell and received the amount also.Subsequently, it is the plaintiff, who turned turtle and had a volteface. If the sale deed is held to be valid, certainly the plaintiffwould not be entitled to half share and certainly her share would gotdwindled and curtained. In such a case, I am of the considered viewthat the first appellate Court-being the last Court of fact shouldnecessarily once again consider all these facts.26. Accordingly, the substantial question of law is answered tothe effect that based on evidence, the first appellate Court was notjustified in passing the judgement and decree, which are liable to beset aside and accordingly set aside. M.P.No.1 of 2011 stands allowedpermitting the appellant/D1 to file in Court the documents found setout therein subject to proof, admissibility and relevancy.Accordingly, the matter is remanded to the first appellate Court forthe said purpose.27. The parties shall appear before the first appellate Court on10.3.2011. D1 is also given opportunity to file additional writtenstatement. Whereupon, the plaintiff and D3 are also givenopportunity to file reply. Whereupon additional issue shall beframed and both sides shall be given opportunity to adduce oral anddocumentary evidence and the first appellate Court shall makeendeavours to see that the matter is disposed of before the end ofApril 2011.28. The second appeal and the miscellaneous petition aredisposed of accordingly. However, there is no order as to costs.MskSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. Additional District and Sessions Judge, Fast Track Court-III, Chennai.2. The XVII Asst.Judge, City Civil Court, Madras.3. The Section Officer V.R. Section, High Court, Madras.+ 1 cc to Mr.R.Thiagarajan,Advocate Sr.13970+ 1 cc to Mr.S.Baskaran, Advocate Sr.13582JRG (CO)RRI/5.2.2011S.A.No.801 of 2009