Patturose Gounder (deceased) v. Murugesan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.07.2009 CORAMTHE HONOURABLE MR.JUSTICE P.R. SHIVAKUMARC.M.A.No.1772 of 20021.Patturose Gounder (deceased)2.Gangaiammal3.Alamelu4.Bommi5.Tirupathi(Appellants 2 to 5 brought on record asL.Rs. of the deceased sole appellant vide orderof Court dated 12.9.06 made in CMP No.9653/06) .. Appellants(Plaintiffs)Vs.1.Murugesan2.Muniyammal3.Rudrakumaran4.Mohan5.Sengadirselvi @ Sundari6.Malathi7.Gowthami8.Suba (RR6 to 8 declared as majors and the fifth respondent discharged from the guardianship of the RR6 to 8 vide order of Court dated 05.08.08 made in CMPs.1287 and 1288 of 2008) .. Respondents (Respondents) https://hcservices.ecourts.gov.in/hcservices/ Prayer: Appeal filed against the Judgment and decree dated 28.3.2002and made in A.S.No.9 of 2000 on the file of the Principal DistrictJudge, Tiruvannamalai set aside and remand the Judgment and decree ofthe learned District Munsif cum Judicial Magistrate, Chengam dated28.9.1999 made in O.S.No.425 of 1996.For Appellant :Mr.T.R.Raja RamanFor Respondents : Mr.Mukundfor M/s.Sarvabhauman AssociatesJUDGMENTThis Civil Miscellaneous Appeal is directed against theJudgment and order of remand dated 28.03.2002 of the learnedPrincipal District Judge, Tiruvannamalai made in A.S.No.9 of 2000.2. Patturose Gounder, the deceased first appellant and oneThangavel Gounder had filed the original suit O.S.No.425 of 1996 onthe file of the District Munsif cum Judicial Magistrate, Chengam fora declaration of their title to the suit property and for permanentinjunction restraining the defendants from interfering with theirpeaceful possession and enjoyment of the suit property. The suit wasfiled contending that the suit property originally belongedMalaiyappa Gramani; that Gopal Gounder, the father of the deceasedfirst appellant purchased the same from the said Malaiyappa Gramanion 06.03.1926 for a sum of Rs.200/-; that from the date of purchase,Gopal Gounder was in possession and enjoyment of the suit propertyand that he had also obtained patta in his name and was paying kistto the Government for the suit property. It was the furthercontention made in the plaint that Patturose Gounder (deceased firstappellant/first plaintiff), Thangavel Gounder (deceased secondplaintiff) and Narayana Gounder were the sons of the above said GopalGounder; that after the death of Gopal Gounder, all his three sonswere enjoying the suit property jointly; that Narayana Gounder diedissueless whereupon Patturose Gounder and Thangavel Gounder (deceasedfirst and second plaintiffs) became entitled to the entire suitproperty; that since Thangavel Gounder, the second plaintiff, diedduring the pendency of the suit without any issue, the deceased firstplaintiff Patturose Gounder, being the sole legal heir of ThangavelGounder, became entitled to the entire suit property and that thedefendants 1 to 5 who had no manner of right or title in respect ofthe suit property tried to trespass into the property pursuant towhich the deceased first and second appellants/first and secondplaintiffs were constrained to file the above suit for the reliefsindicated supra. https://hcservices.ecourts.gov.in/hcservices/

3.The original suit was resisted by the defendants by filing awritten statement containing the following averments:- It is true that the suit property originally belonged toMalaiyappa Gramani and the same was purchased by the deceased firstplaintiff's father Gopal Gounder. The said Gopal Gounder thereaftercreated a mortgage in respect of the suit property in favour ofThanipady Co-operative Society. It is also false to allege thatGopal Gounder had three sons and the deceased Plaintiffs 1 and 2 weretwo out of the three sons of Gopal Gounder. On the other hand, thesaid Gopal Gounder had got only two sons and they were none othersthan the deceased plaintiffs 1 and 2. The suit property mortgaged infavour of Thanipady Co-operative Society by Gopal Gounder was notredeemed and hence the same was brought to sale by public auction forthe recovery of the mortgage debt. One Mottaiya Mudali took it inthe auction on 14.01.1937 and thereafter sold it to one NarayanaMudali under a sale deed dated 08.09.1940. From the said NarayanaMudali, Narayana Gounder purchased half of the suit property under asale deed dated 26.02.1944. The remaining half share in the suitproperty was purchased by Narayana Gounder benami in the name ofPerumal Gounder at the first instance and later on, got that halfshare also conveyed to him. Thus the said Narayana Gounder becamethe absolute owner of the entire suit property. By a Will dated14.09.1981, the said Narayana Gounder bequeathed the same in favourof Ruthrakumaran, Palani, Mohan (Defendants 3 to 5) and the saiddefendants being the legatees under the will are in possession andenjoyment of the suit property. 4. Based on the above said pleadings, the defendants prayed fordismissal of the suit with costs.5. The trial Court framed as many as 14 issues and tried thesuit. P.W.1 and P.W.2 were examined and Exs.A1 to A24 were marked onthe side of the plaintiffs, whereas D.W.1 was examined as the solewitness and Exs.B1 to B129 were marked on the side of the defendants.At the conclusion of trial, upon considering the evidence in thelight of the arguments advanced on either side, the trial Judge(learned District Munsif cum Judicial Magistrate, Chengam) dismissedthe suit on merits by its Judgment and decree dated 28.09.1999. Asagainst the said Judgment and decree of the trial court, an appeal inA.S.No.9 of 2000 was preferred on the file of the learned PrincipalDistrict Judge, Tiruvannamalai. 6. During the pendency of the suit, Thangavel Gounder (thesecond plaintiff) died and Patturose Gounder, the first plaintiff wasrecorded as his sole legal representative. Therefore the above saidAppeal A.S.No.9 of 2000 was filed by Patturose Gounder, the firstplaintiff alone on the file of the Lower Appellate Court. During the https://hcservices.ecourts.gov.in/hcservices/ pendency of the first appeal before the Lower Appellate Court, thefourth defendant by name Palani passed away and the legalrepresentatives of the deceased fourth defendant were impleaded asrespondent Nos. 6 to 8 in the said appeal before the Lower AppellateCourt. 7. When the Appeal A.S.No.9 of 2000 was thus pending on the fileof the Lower Appellate Court, the respondents therein filed anInterlocutory Application I.A.No.98 of 2000 under Order 47 Rule 27C.P.C. for reception of seven documents as additional documentaryevidence. The Lower Appellate Court by a common Judgment and orderdated 29.01.2000 allowed the above said interlocutory application forreception of additional documentary evidence. The learned PrincipalSessions Judge however made a mistake by reading the said documentsinto evidence and referring them as document Nos. 1 to 7 produced inInterlocutory Application, without following the procedure forrecording additional evidence and allowed the appeal reversing theJudgment and Decree of the trial Court and granting the reliefs ofdeclaration and injunction as prayed for. 8. As against the said Judgment of the lower Appellate Courtdated 21.09.2000, the respondents herein preferred a second appeal(S.A.No.10 of 2001) on the file of this Court. A learned SingleJudge of this Court (Justice A.Ramamoorthy) allowed the second appeal(S.A.No.10 of 2001) by his judgment dated 29.06.2001, set aside theJudgment and Decree of the Lower Appellate Court dated 21.09.2000 andremitted A.S.No.9 of 2000 back to the Lower Appellate Court forfresh disposal in accordance with law. A direction had also beenissued to the Lower Appellate Court to send the newly markeddocuments to the trial Court for a finding relating to the saiddocuments to be given after giving opportunity to both parties toadduce evidence and to dispose of the appeal after receiving suchfinding from the trial Court within a period of one month from thedate of receipt of such finding from the trial Court. The operative portion of the Judgment of this Court dated29.06.2001 made in S.A.No.10 of 2001 is extracted hereunder for thepurpose of convenient reference and proper appreciation:"...13. For the reasons stated above, the second appealis allowed and the Judgment and decree of the LowerAppellate Court are set aside and the appeal is remittedback to the Lower Appellate Court for fresh disposal inaccordance with law. The Lower Appellate Court is directedto send the newly marked documents (Exs.R1 to R7) to thetrial Court and both parties are given opportunity to adduceevidence and the trial Court should be directed to give afinding relating to Exs.R1 to R7 and thereafter, the LowerAppellate Court is directed to dispose of the appeal in aperiod of one month after receiving finding from the trial https://hcservices.ecourts.gov.in/hcservices/ Court. No costs. Consequently, CMP No.172 of 2001 isclosed."9. After remand, as per the directions issued by the High Court,the Lower Appellate Court had sent the documents produced asadditional documentary evidence in the appeal to the trial Court forthe purpose of recording evidence in proof of the same and forsubmitting a finding in that regard as per the direction of the HighCourt. The trial Court on receipt of the records from the LowerAppellate Court marked those seven documents as Exs.B130 to B136through D.W.1 who was recalled for that purpose. The learned trialJudge, after considering the said additional evidence recorded as perthe direction of the Appellate Court, submitted a finding to theLower Appellate Court to the effect that the additional documentsmarked as Exs.B130 to B136 would establish that the suit property wasin possession and enjoyment of the respondents/defendants and thatthe suit property belonged to them. On receipt of the above saidfinding along with the records, the learned Principal District Judge,Tiruvannamalai (the Lower Appellate Judge) heard the appeal A.S.No.9of 2000 and after hearing, allowed the same setting side the Judgmentand decree of the trial Court and remanded the suit back to the trialCourt for fresh disposal, observing that the parties would be atliberty to adduce further oral and documentary evidence if necessary.The said Judgment and order of remand was passed on 28.03.2002. 10.Aggrieved by the said Judgment and order of remand of thelower Appellate Court, the present civil miscellaneous appeal waspreferred by Patturose Gounder (the first defendant) figuring as thesole appellant. Since he died during the pendency of the civilmiscellaneous appeal, the appellants 2 to 5 were brought on record ashis legal representatives by virtue of an order dated 12.09.2006 madein C.M.P.No.9653 of 2006.11The point that arises for consideration in this appeal is asfollows:-" Whether the order of remand made by the Lower Appellate Courtis sustainable? whether the said order is in consonance with thedirection of this Court issued in S.A.No.10 of 2001? whether the sameis legally sustainable.?"12.Mr.T.R.Rajaraman learned senior counsel for the appellants,advancing the arguments on behalf of the appellants, submitted thatthe Judgment and order of remand of the Lower Appellate Court are notsustainable in law; that the Lower Appellate Court misunderstood andmisconstrued the direction issued by this Court in S.A.No.10 of 2001;that the order of remand made by the Lower Appellate Court would notbe sustained either under Rule 23 or Rule 23(A) of Order 41 C.P.C.;that the Lower Appellate Court completely ignored the procedureprescribed under Order 41 Rule 27 to Rule 29 in taking additional https://hcservices.ecourts.gov.in/hcservices/ evidence either by the Lower Appellate Court or by the trial Courtand that the very procedure adopted by the Lower Appellate Courtvitiated the order of remand. The learned senior counsel for theappellants contended further that apart from there being defects inthe procedure adopted by the Lower Appellate Court in simply sendingthe documents to the trial Court for recording additional evidenceand giving a finding without framing the question with regard towhich the finding had to be submitted, the Lower Appellate Courtalso committed a grave error by remanding the suit to the trial Courtfor fresh disposal on the sole ground that the Lower Appellate Courtwas not in agreement with the finding submitted by the trial Court;that the Lower Appellate Court should have re-assessed the evidencerecorded originally and recorded as additional evidence, both oraland documentary, and disposed of the appeal one way or the otherbased on its own finding without expecting the trial Court to givethe finding which the Lower Appellate Court wanted; that even in thepresent remand order which is challenged in this civil miscellaneousappeal, the Lower Appellate Court had not indicated what were theissues regarding which the Lower Appellate Court concurred with thefinding of the trial Court and what were the issues to be decidedafresh and that hence viewed from any angle, the order of remandpassed by the Lower Appellate Court should be set aside as the onemade not in accordance with law.13.The learned counsel for the respondents fairly conceded thathe could not support the reasons assigned by the Lower AppellateCourt for remanding the case back to the trial Court for freshdisposal, without attempting to dispose of the matter on merits basedon the available materials on record. The learned counsel appearingfor the respondents on the other hand would submit that in case thisCourt is inclined to interfere with the order of remand, the LowerAppellate Court may be directed to dispose of the appeal on meritswithin a time to be fixed by this Court.14.This Court gave its anxious consideration to the submissionsmade on either side. The materials available on record were alsoperused.15. The order of the Lower Appellate Court remanding the suitafter setting aside the decree of the trial Court for fresh disposalis the subject matter of challenge in this civil miscellaneousappeal. The order has been attacked on two grounds:-i)the order of remand is not in consonance with the provisionscontained either in Rule 23 or Rule 23(A) of Order 41 C.P.C.andii)the said order has been passed without properly understandingthe scope of the Judgment by this Court made in S.A.No.10 of2001 remanding the first appeal (A.S No.9 of 2000) back to theLower Appellate Court for fresh disposal according to law. https://hcservices.ecourts.gov.in/hcservices/

16. The suit was originally decided against the plaintiffs bythe trial Court and the same was dismissed with cost by its Judgmentdated 28.09.1999. On appeal to the Lower Appellate Court inA.S.No.9 of 2000, the Lower Appellate Court allowed the appealreversing the Judgment of the trial Court and decreed the suit infavour of the plaintiffs as prayed for. In fact, the said Judgmentof the Lower Appellate Court was pronounced after taking intoconsideration 7 documents produced as additional evidence on behalfof the defendants before the Lower Appellate Court. However, on afurther appeal to the High Court in S.A.No.10 of 2001, this Courtheld that the Lower Appellate Court committed an error in reading thedocuments produced in the appeal into evidence without following theprocedure prescribed under Rule 27 of Order 41 C.P.C. for recordingadditional evidence in the appellate stage. On the said groundalone, the judgment of the Lower Appellate Court dated 28.03.2002was set aside and the first appeal (A.S.9 of 2000) was remitted backto the Lower Appellate Court for fresh disposal according to law witha direction to record additional evidence. The direction issued bythis Court is found in the last paragraph of the judgment by thisCourt dated 29.06.2001 made in S.A.No.10 of 2001 which reads asfollows:-"...13. For the reasons stated above, the second appealis allowed and the Judgment and decree of the LowerAppellate Court are set aside and the appeal is remittedback to the Lower Appellate Court for fresh disposal inaccordance with law. The Lower Appellate Court is directedto send the newly marked documents (Exs.R1 to R7) to thetrial Court and both parties are given opportunity to adduceevidence and the trial Court should be directed to give afinding relating to Exs.R1 to R7 and thereafter, the LowerAppellate Court is directed to dispose of the appeal in aperiod of one month after receiving finding from the trialCourt. No costs. Consequently, CMP No.172 of 2001 isclosed."17. Of course, it is true that this Court had directed theLower Appellate Court to send the documents, which are to beintroduced as additional evidence, to the trial Court and get afinding regarding the said documents to be given after givingopportunity to both parties to lead evidence relating to the saiddocuments. But unfortunately this Court has not chosen to specify inunambiguous terms, the question regarding which the finding of thetrial Court had to be obtained. A thorough consideration of thedirection issued by this Court dated 29.06.2001 for remanding theappeal suit to the Lower Appellate Court for fresh disposalaccording to law will show that the High Court, in its order ofremand has stopped with directing the Lower Appellate Court to callfor a finding from the trial Court to be rendered after recording https://hcservices.ecourts.gov.in/hcservices/ evidence to be adduced by both parties relating to the documentssought to be produced as additional evidence in the appellate stage.The Lower Appellate Court should have chosen to frame the exactquestion or questions on which the trial Court was to give itsfinding. Or else, since the High Court has not indicated thequestions on which the finding had to be obtained from the trialCourt, the Lower Appellate Court should have construed the directionas one for recording additional evidence and transmitting the samealong with the report of the trial Court regarding the admissibilityand reliability of the documents produced as additional evidence,leaving the other points raised in the appeal to be decided by theLower Appellate Court. The learned Principal District Judge ( theLower Appellate Court), on receipt of a copy of the Judgment made inS.A.No.10 of 2001 along with records, has simply chosen to send theentire case records to the trial Court for recording additionalevidence and submitting a finding. At the cost of repetition, it ispointed out that the exact question on which the finding had to besubmitted by the trial Court had not been framed and communicated tothe trial Court. When such is the position, the trial Court wasmislead by the absence of framing of such question and hence it hadsubmitted a finding as to who was in the possession of the propertyand which one of the contesting parties was having title to the suitproperty. That is why the learned trial Judge after recalling andrecording further evidence of D.W.1 and marking the documentsproduced in the appellate stage as Exs.B130 to B136 and in the lightof the fact that the opposite party viz., the Plaintiff did notadduce any further evidence, came to the conclusion that thedefendants had proved title to the suit property and that thedefendants had also proved to be in possession of the suit propertyand submitted a finding to the Lower Appellate Court incorporatingthe said conclusion. 18. The Lower Appellate Court, after perusing the records andthe finding submitted by the trial Court, was not prepared to acceptthe finding and that is the main reason for remanding the suit backto the trial Court for fresh disposal. The finding of the trialCourt was rendered based on its appreciation of evidence. If at allthe First Appellate Court thinks that such finding is erroneous, onre-appreciation of such evidence it could set aside the finding ofthe trial Court and reverse it. Instead of doing it, the learnedLower Appellate Judge seems to have thought it fit to invite afinding which the Lower Appellate Court wanted the trial Court togive and that that is why the order of remand under challenge inthis appeal has been passed. The said approach made by the learnedPrincipal District Judge (the Lower Appellate Judge) is erroneousand not in accordance with law. For that reason alone, this Courtcomes to a conclusion that the order of remand passed by the LowerAppellate Judge cannot be sustained in law and the same deserves tobe set aside. https://hcservices.ecourts.gov.in/hcservices/

19.The learned Principal District Judge (the Lower AppellateJudge) has chosen to cite one additional reason for remanding thecase back to the trial Court for fresh disposal. The additionalreason is that the respondents/defendants filed I.A.No.34 of 2002under Order 41 Rule 27 to receive one more document as Additionalevidence. It is obvious from the Judgment of the Lower AppellateCourt that the appellants did not oppose the said application andmade an endorsement in the said application consenting for receivingthe proposed additional document as a documentary evidence and formarking it as an Exhibit. Consequently the additional documentproduced for the second time by the respondents/defendants was markedby consent as Ex.B137. When Ex.B137 was marked by consent, therewont be any question of proving the said document as it stands provedby consent and that the introduction of the said document as a pieceof evidence in the appellate stage cannot be a valid reason forsetting aside the decree of the trial Court and remanding the suitback to the trial Court for fresh disposal. The entire evidenceincluding Ex.B137 was available with the Lower Appellate Court.the Lower Appellate Court could have re-appreciated the evidence bothoral and documentary, adduced on both sides and arrived at aconclusion regarding the issues in the appeal one way or the other.The mere fact that the trial Court, according to the Appellate Courthas given a wrong or erroneous finding on a particular issue, cannotbe the ground on which the suit can be remanded to the trial Courtfor fresh disposal. 20. For all the reasons stated above, this Court comes to theconclusion that the Judgment of the Lower Appellate Court and theorder of remand cannot be sustained and the same deserve to be setaside. Considering the fact that it is a long pending case, thisCourt comes to the conclusion that it is just and necessary to fix atimelimit for disposal. Two months shall be quite reasonable. 21. In the result, the civil Miscellaneous Appeal is allowedand the order of remand of the Lower Appellate Court dated 28.03.2002is hereby set aside. The Lower Appellate Court is directed to restorethe appeal (A.S.No.9 of 2000) to its file and dispose of thesame on merits based on the available evidence including Ex.B137 thatwas marked by consent in the first appeal, within a period of twomonths from the date of receipt of a copy of this Judgment. Thereshall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vriTo1.The Principal District Judge, Tiruvannamalai.2.The District Munsif cum Judicial Magistrate, Chengam.3. The Section Officer, E.R.Section, High Court, Madras1 cc To Mr.T.R.Rajaraman, Advocate, SR.33509.1 cc To M/s.Sarvabhuaman Associates, Advocate, SR.33279.C.M.A.No.1772 of 2002 RL(CO)RVL 19.08.2009