Sandrayan v. S.S.Mariappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09.12.2010Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.299 of 2006 andM.P.No.1 of 20061.Sandrayan2.Pappa @ Thulasimani3.Chandra4.Saravanan5.Periakkal... Appellants/Defendants 1 to 5vs.1.S.S.Mariappan2.Chinnammal... Respondents/Plaintiff & 6th DefendantThis second appeal is filed against the judgement and decreedated 11.4.2002 passed by the Additional District Judge, Fast TrackCourt No.IV, Bhavani, in A.S.No.15 of 2002 confirming the judgmentand decree dated 2.3.2001 passed by the Second Additional DistrictMunsif, Bhavani in O.S.No.85 of 1998.For Appellants : Mr.V.Bharathidasan For Respondents : No appearanceJUDGMENTThis second appeal is focussed by the defendants 1 to 5,animadverting upon the judgement and decree dated 11.4.2002 passed bythe Additional District Judge, Fast Track Court No.IV, Bhavani, inA.S.No.15 of 2002, confirming the judgment and decree dated 2.3.2001passed by the Second Additional District Munsif, Bhavani in O.S.No.85of 1998, which was filed for specific performance of an agreement tosell.2. Despite notice having been served on the respondents andtheir names also printed in the cause list, they have not chosen toappear either in person or through counsel. 3. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking before thetrial Court. https://hcservices.ecourts.gov.in/hcservices/

4. A summation and summation of the relevant facts absolutelynecessary and germane for the disposal of this second appeal wouldrun thus:(a) The plaintiff filed the suit O.S.No.85 of 1998 for specificperformance of an agreement to sell. The defendant No.6/R2 hereinremained ex-parte. Defendants 1 to 5/the appellants herein filed thewritten statement and resisted the suit.(b) Whereupon issues were framed. The plaintiff on his sideexamined himself as Ex.P.W.1 along with Ex.P.W.2 and Exs.A1 to A9were marked. The defendants 1 to 5 on their side examined the firstdefendant as D.W.1 along with D.W.2 and Exs.B1 to B3 were marked. (c) Ultimately, the trial Court decreed the suit. (d) Being aggrieved by and dissatisfied with the same, thedefendants 1 to 5 preferred the appeal for nothing but to bedismissed by the appellate Court confirming the judgment and decreeof the trial Court.5. Challenging and impugning the judgement and decree of theappellate Court, defendants 1 to 5 have filed this second appeal onthe following grounds, inter alia thus: (i) The Courts below failed to apply the principle of 'burdenof proof' correctly in the facts and circumstances of this case.Assuming wrongly that the burden of proof was on the defendants, thelis was decided by the Courts below. (ii) Ex.A1-the alleged agreement to sell was disputed bydefendants 1 to 5. Whereupon the plaintiff ought to have taken stepsto prove it in the way known to law. But the plaintiff failed to doso. Even then, the Courts below held as though the defendants 1 to 5should have proved that Ex.A1 was a false document.(iii) Over and above that, by way of adding fuel to the fire,the Courts below commented upon the non-examination of D6/R2 hereinand drew virtually adverse inference as against the defendants 1 to5/the appellants herein. D6 is none but the mother of the plaintiff.Accordingly, the defendants 1 to 5 pray for setting aside thejudgments of both the Courts below and for dismissal of the suit.6. While admitting the second appeal my learned predecessorframed the following substantial questions of law: "(i) Have not the Courts below committed an error oflaw in not holding that burden of proof lies on theplaintiff to prove the execution of Exhibit A1 and not onthe defendants. https://hcservices.ecourts.gov.in/hcservices/ (ii) Have not the lower appellate Court committed anerror of law in holding that the appellants have not provedthat the value of the suit property is more in view of theadmission made by the plaintiff being the best form ofevidence.(iii) Have not both the Courts below committed anerror of law in not giving the finding that the respondentswere always ready and willing to require under Sec.16(e) ofthe Specific Relief Act?(iv) The lower Court committed an error of law inconsidering the issues framed by the trial Court whileconfirming the order of the trial Court."7. However, the aforesaid substantial questions of law arereframed as under:"(i) Whether the Courts blow were justified inproceeding on the footing as though the burden of proof ison defendants 1 to 5 to prove the falsity of Ex.A1-theAgreement to Sell?(ii) Despite the scribe having not signed in theagreement to sell-Ex.A1, whether the Courts below werejustified in not adverting to the said fact while discussingthe facts involved in this case and in upholding thevalidity of Ex.A1?(iii) Whether the Courts below were justified in givingweightage to the non-examination of D6/R2 herein-the motherof the plaintiff as a fact against the genuineness of thecase of the defendants 1 to 5?(iv) Whether the judgments of the Courts below arefraught with perversity?8. All the substantial questions of law are taken together fordiscussion, as they are interlinked and interwoven, interconnectedand entwined with one another.9. The learned counsel for the defendants 1 to 5 would put forthand set forth his arguements, which could tersely and briefly be setout thus:(a) The alleged agreement to sell-Ex.A1 would contemplate asthough Ramasamy Grounder had hereditary right over the suit property,whereas D6-the mother of the plaintiff had directly acquired rightover the suit property, without specifying as to the respectiveextents to which they were entitled to.(b) During trial also, no evidence has been adduced to highlightas to how D6-the mother of the plaintiff acquired any right over thesuit property. https://hcservices.ecourts.gov.in/hcservices/ (c) The lower Court in the judgment did not refer to the factumof the defendants 1 to 5 having taken steps to get the assistance ofthe expert, to verify the genuineness of the purported left thumbimpression of Ramasamy Gounder even though D.W.1/D1 stated thatthrough Court the impugned document was sent to the expert, but itwas returned back on the ground that for want of better particularsit could not be verified.(d) The appellate Court without framing proper points forconsideration, simply confirmed the judgment of the trial Court,which was fraught with perversity and incoherence.Accordingly, he prays for setting aside the judgment of both theCourts below and for dismissal of the suit.10. The learned counsel would place reliance on the DivisionBench judgment of the Karnataka High Court reported in AIR 2009 (NOC)264(KAR) – HANDRASHEKAR G SULLAD AND OTHERS V TUHEED CO-OPERATIVEHOUSING SOCIETY AND ANOTHER, an excerpt from it would run thus:"(B) Specific Relief Act (47 of 1963), S.20 – Specificperformance of agreement to sell – Description of subjectproperty insufficient and very identity of property isdisputable – No relief can be granted."11. There is no quarrel over such a proposition, as now it hasbecome a trite proposition.12. I would like to refer to Ex.A1, which is found typed in onestamp paper, coupled with two green sheets. The said document ispurported to contain allegedly the left thumb impressions of thedeceased Ramasamy Gounder and D6/R2 herein along with the signatureof the plaintiff-Mariappan. In the third sheet of Ex.A1 even thoughit is found typed as though one Arumugham typed it, the signature ofthe said Arumugham is not found on that. 13. I hark back to the following maxims: (i) Affirmatis est probare – He who affirms must prove.(ii) Affirmanti, non neganti incumbit probatio – The burden ofproof lies upon him who affirms, not upon one who denies. The cumulative effect of those two maxims are to the effect that theperson who affirms should prove it. 14. Here the plaintiff approached the Court seeking specificperformance of an agreement to sell, whereas the defendants 1 to 5denied it. In such a case, the burden was on the plaintiff to provethat the purported thumb impressions of Ramasamy Gounder were that ofthe said person, by clinching evidence. https://hcservices.ecourts.gov.in/hcservices/

15. No doubt, on the side of the plaintiff, apart from theplaintiff, P.W.2-Jeyachandran one of the attesting witnesses wasexamined, but the said witness happened to be the relative ofMariappan-the plaintiff and his evidence is not free from doubt forthe reason that he went to the extent of narrating that the scribesigned Ex.A1, when in fact, as observed by me supra, the scribe didnot sign it. P.W.1 would plead ignorance about the name of thescribe, however, he would hasten to add wrongly and quiteantithetical to the factual reality as though he saw the scribesigning Ex.A1. 16. The Courts below miserably failed to notice the glaringfalse/wrong statement as found in the depositions of P.W.1 and P.W.2.P.W.1 also in his deposition stated as though there was a well in thesuit property, but Ex.A1 does not refer to any well, wherefore theCourts below should have held that the description of property inEx.A1 was inadequate and misleading cutting at the root of theplaintiff's right to seek for specific performance of the agreementto sell. This is also another glaring defect, which the Courts belowought to have taken note of. According to P.W.1, in Ex.A1, Ramasamywas entitled to four cents of land, whereas his mother D6 wasentitled to another four cents. There is nothing to indicate how hismother acquired ownership over the said four cents of land and he hasalso not chosen to examine his mother D6. 17. Over and above that there is no evidence on record todemonstrate and expatiate, convey and portray that while sendingnotice to D1 to D5, any such pre litigation notice was sent to D6calling upon her to execute the sale deed along with D1 to D5. D.W.1in his deposition candidly and categorically, pellucidly and palpablystated that at the instance of D1 to D5, the impugned document wassent to expert, but it was returned with the observation that thethumb impression was not clear. Thereupon the trial Court shouldhave adverted to that portion of the deposition of D.W.1 and givenits finding thereon. However, the trial Court would point out thatdefendants 1 to 5 filed an application for sending the documents tothe expert, thereafter, they did not press for it. Even though the'burden of proof' is not on the defendants 1 to 5, nevertheless they,by their conduct exemplified and made known that they boldly cameforward to get the impugned thumb impressions of their father,verified by an hand writing expert. In such an event, the plaintiffas well as the Court should have taken a cue from the conduct of D1to D5 and made further arrangements for verifying the purported thumbimpression of Ramasamy Gounder in the alleged agreement to sell-Ex.A1. Whereas, the trial Court misapplying the principle of 'burdenof proof' found fault with the defendants as though they did notprove the falsity of Ex.A1. Non-examination of D6 on the side of D1to D5 was commented upon by both the Courts below unjustifiablywithout understanding the trite proposition of law that the 'burdenof proof' is only on the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

18. This is a singularly singular case, in which the mother ofthe plaintiff along with one other person, namely, Ramasamy Gounder,allegedly entered into an agreement to sell with the plaintiff and insuch a case, I am at a loss to understand as to how the plaintiffhimself did not choose to examine at least D6 as a Court witness toprove that D6 along with Ramasamy Gounder had put the thumbimpressions on Ex.A1. These are all glaring defects in the judgmentsof the Courts below and the judgments are fraught with perversity andthe learned Judges of the Courts below misdirected themselves insteadof appreciating the proper facts available before the Court and alsoapplying the correct propositions of law. 19. At this juncture, I would like to recall and recollect thefollowing decisions of the Honourable Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS.SESHAMMAL,certain excerpts from its would run thus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial question https://hcservices.ecourts.gov.in/hcservices/ of law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in the https://hcservices.ecourts.gov.in/hcservices/ case unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:A plain reading of those precedents would reveal and demonstratethat under Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved. 20. Adhering to the aforesaid judgments and in view of mydiscussion supra, it is clear that interference of this Court iswarranted, as the judgments of the Courts below are fraught withperversity. Accordingly, the substantial questions of law aredecided as under:Substantial question of law (i) is decided tot heeffect that the Courts below misunderstood the concept'burden of proof' and misapplied it as though the burden ofproof was on the defendants.Substantial question of law (ii) is decided to theeffect that despite the scribe having not signed in theagreement to sell, the Courts below were not justified innot adverting to the said fact while discussing the factsinvolved in this case and in upholding the validity ofEx.A1. https://hcservices.ecourts.gov.in/hcservices/ Substantial Question of law (iii) is decided to theeffect that non-examination of D6 on defendants' side wascommented upon by both the Courts below unjustifiablywithout understanding the trite proposition of law that the'burden of proof' is only on the plaintiff. Substantial Question of law (iv) is decided to theeffect that the Judgments of the Courts below are fraughtwith falsity and they have not even taken note of the wrongand inadequate description of the suit property.21. In view of the ratiocination adhered to in deciding theabove substantial questions of law in favour of the second appellantsand as against the respondents, the second appeal is allowed and thejudgments and decrees of the Courts below are set aside and as asequela the original suit filed by the plaintiff stands dismissed.22. In the result, the second appeal is allowed. However, thereis no order as to costs. Consequently, connected miscellaneouspetition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Additional District Judge, Fast Track Court No.IV, Bhavani.2. The Second Additional District Munsif, Bhavani 1 cc To Mr.V.Bharathidasan, Advocate, SR.88553. S.A.No.299 of 2006NG(CO)RVL 22.02.2011