T.Tamilarasan v. Arokkiasamy2.Thomas3.Devasagayam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.03.2007CORAMTHE HONOURABLE MR. JUSTICE P.JYOTHIMANISecond Appeal No. 821 of 2006 &M.P.No.1 of 2006T.Tamilarasan . . Appellant/PlaintiffVersus1.Arokkiasamy2.Thomas3.Devasagayam . . Respondents/DefendantsPrayer: This second appeal is filed against the judgment anddecree dated 29.11.2005 made in A.S.No.19 of 2005 on the file ofthe Principal Sub Court Erode, reversing the judgment and decreedated 09.01.2004 made in O.S.No.64 of 2003 on the file of theDistrict Munsif cum Judicial Magistrate, Perundurai.For Appellant :Mr.N.ManoharanFor Respondents:Mr.V.AyyaduraiJUDGMENTThe plaintiff in the trial court is the appellant in thesecond appeal. The suit was filed for a permanent injunctionagainst the defendants from interfering with the plaintiff'spossession of the property which is to an extent of 459 sq.metres of house site with thatched shed and mamool pathway rightscomprised in R.S.F.No.1044/3 in Pallapalayam Village, PerunduraiTaluk, Erode District.2.The claim of the plaintiff was based on the patta issuedby the Special Tahsildar on 31.05.1993 which was marked as Ex.A1.It was further the case of the plaintiff that the defendants whohave nothing to the do with property have attempted to interfereand demolished the thatched shed which has resulted in filing theabove said suit. 3.On the other hand, the defendants in the written statement https://hcservices.ecourts.gov.in/hcservices/ have categorically stated that the plaintiff is the absoluteowner of the property situated in R.S.F.No.1044/3 as per thePatta dated 31.05.93. However, in the later part of the writtenstatement, the defendants have stated that property comprised inR.S.F.No.1044/3 was subsequently divided into 5 parts andseparate pattas were issued to five persons. It is the case ofthe defendants that originally the property belonged to oneJeevanandam who is the father of defendants 2 and 3 and grandfather of the first defendant and the plaintiff. The saidJeevanandam has five sons namely Themothan who is the father ofthe plaintiff, Joseph the father of the first defendant, Thomasthe second defendant, Devasagayam the third defendant andJayaraj. After the division of the said property, S.F.No.1044/3was allotted to the plaintiff and his brother namely Anbalagan,S.F.No.1044/3B was allotted to the first defendant's fatherJoseph, S.F.No.1044/3C was allotted to the second defendant,S.F.No.1044/3D was allotted to the third defendant and Jayarajwas allotted the property situated in S.F.No.1044/3A.4.According to the defendants, the suit property allotted tothe plaintiff and his brother Anbalagan comprised inS.F.No.1044/3 is still vacant land and the plaintiff is actuallyliving as a tenant under the first defendant's house on a monthlyrent of Rs.300/- in the house allotted to the first defendantcomprised in S.No.1044/3B. Since the plaintiff failed to pay therent consistently, due to fear of his being vacated throughprocess of law, the suit is filed.5. It is seen that the plaintiff has filed the patta issuedin his name marked as Ex.A1 dated 31.5.93. On the other hand, thedefendants side has not filed any documents and on appreciationof the entire factual position, the trial Court has given afinding that the plaintiff is in possession of the property andhas decreed the suit. In fact the trial court has also statedthat the defendants have not filed any documents. 6.Aggrieved over the said judgment of the trial court, thedefendants have filed the first appeal before the appellateCourt. Along with the first appeal the defendants have also filedI.A.No.19/2005 for receipt of additional documents with thecontention that while it is true that the plaintiff was givenpatta under Ex.A1 dated 31.05.93 and the said patta wassubsequently cancelled by the revenue authorities on theapplication filed by the defendants and the patta has beengranted in favour of the defendants and they were not filed inthe trial court since they were not able to trace out. In spiteof the opposition to the said application, the First appellateCourt has allowed the said application filed under Order 41 Rule27 CPC. Thereafter, the first appellate Court has taken up the https://hcservices.ecourts.gov.in/hcservices/ appeal and reversed the judgment of the trial Court on the basisthat the patta issued in favour of the plaintiff under Ex.A1dated 31.5.93 has been cancelled subsequently, as it is seen inthe additional documents. In view of the same, the firstappellate Court has come to the conclusion that the plaintiff isnot in possession and allowed the appeal of the defendants andset aside the judgment and decree of the trial Court. It was asagainst the judgment and decree of the first appellate Court, theplaintiff has filed the present second appeal.7.At the time when the second appeal was admitted, thisCourt has framed the following substantial questions of law;1.Whether the first appellate court iscorrect in law in reversing the permanentinjunction granted by the trial court, despitethe admission made by the defendants in theirwritten statement as well as in the oralevidence of DW.1 and DW.2 which enables theplaintiff to succeed in the suit in view ofSections 17, 21 and 58 of Indian Evidence Act?2.Whether the First appellate Court hasproperly appreciated and applied the principlesto find out the admissibility of the additionaldocuments in the first appeal especially whenthe respondents herein have failed to complywith the mandatory requirements as contemplatedunder Rule 27 and 28 of Order 41 CPC?3.Whether the documents came intoexistence subsequent to the filing of the suitand marked as Exhibits in the appellate stageis relevant for the purpose of the caseparticularly when the pleading and oralevidence adduced by the defendants will supportthe case of the plaintiff?8.I have heard Mr.N.Manoharan, learned counsel appearing forthe appellant and Mr.V.Ayyadurai learned counsel appearing forthe respondents.9.The learned counsel appearing for the appellant wouldsubmit that in the written statement the defendants havecategorically admitted the ownership of the plaintiff on thebasis of the patta issued under Ex.A1 in favour of the plaintiff,and it is also the specific case of the defendants in the writtenstatement that even though it is contradictory to first part thatsubsequently the suit property was divided into five parts and https://hcservices.ecourts.gov.in/hcservices/ each of them got one part, the plaintiff and his brotherAnbalagan was allotted the property comprised in S.F.No.1044/3.For the first time the subsequent documents which are relating tothe period 2001 were filed before the first appellant Court andthe First appellate Court without even following the procedurecontemplated under Order 41 Rule 27 and 28 CPC, has simplyallowed those documents as additional evidence and based on whichthe first appellate Court has come to the erroneous conclusion asif the patta originally given to the plaintiff under Ex.A1 dated31.5.93 stood cancelled and on that basis the suit was dismissedignoring the fact of the categoric admission of the defendants inthe written statement that the plaintiff was in possession and heis the absolute owner of the property. Therefore, according tothe appellant, there is a patent error committed by the firstappellate Judge in not only following the Order 41 Rule 27 and 28CPC but also wholly deciding on the basis of the additionaldocuments to come to the conclusion as if the defendants are inpossession. 10.On the other hand, Mr.Ayyathurai, learned counselappearing for the respondents would submit that when once it isthe case of the defendants that the patta was given to theplaintiff in 1993 has been cancelled after 2001, by the competentauthorities in law it was only for the plaintiff to challenge thecancellation in the manner known to law and after cancellation noCourt can rely upon Ex.A1 dated 15.03.93 and the first appellateJudge has correctly come to the conclusion by accepting theadditional documents and dismissed the suit filed by theplaintiff.11.A reference to the judgment of the First appellate Courtwould show that the judgment and decree of the trial Court wasreversed solely on the basis of the documents which were receivedas additional documents in the appeal stage and marked as Ex.B2to Ex.B9 and also holding that the plaintiff has suppressed thefact that his patta under Ex.A1 has been cancelled and misleadthe trial Court.12.Order 41 Rule 27 and 28 CPC contemplates the procedure tobe followed for production of additional evidence in theappellate Court. The said provision stated as follows;27.Production of additional evidence inAppellate Court:-(1) The parties to an appealshall not be entitled to produce additionalevidence, whether oral or documentary, in theAppellate Court. But if-(a)the Court from whose decree the appealis preferred has refused to admit evidence https://hcservices.ecourts.gov.in/hcservices/ which ought to have been admitted, or(aa)the party seeking to produceadditional evidence, establishes thatnotwithstanding the exercise of due diligence,such evidence was not within his knowledge orcould not, after the exercise of duediligence, be produced by him at the time whenthe decree appealed against was passed, or)(b) the Appellate Court requires anydocument to be produced or any witness to beexamined to enable it to pronounce judgment,or for any other substantial cause, theAppellate Court may allow such evidence ordocument to be produced or witness to beexamined.(2)Wherever additional evidence isallowed to be produced by an Appellate Court,the Court shall record the reason for itsadmission.(28)Mode of taking additional evidence:-Wherever additional evidence is allowed to beproduced, the Appellate Court may either takesuch evidence, or direct the Court from whosedecree the appeal is preferred, or any otherSubordinate Court, to take such evidence andto send it when taken to the Appellate Court."13.Therefore it is clear that when in the appellate Court itis established that notwithstanding due diligence such evidencecould not be produced during the trial Stage or in cases were theappellate Court requests the document to be produced forpronouncing judgment or for any other substantial cause, theAppellate Court may allow such evidence or document to beproduced or witness to be examined. It is also made clear that incases were the appellate Court takes a decision to allow theadditional evidence, it is to direct the Court from whose decreethe appeal is preferred, or any other Subordinate Court, to takesuch evidence and to send it to the Appellate Court for decision.Therefore, there are two steps when additional evidence is filedbefore the appellate Court namely;1)When the appellate Court is satisfiedwhen such additional evidence is required to beproduced the appellate Court shall pass an orderwith giving reasons.2.Thereafter, either the appellate Courtitself can take evidence or direct the https://hcservices.ecourts.gov.in/hcservices/ subordinate Court to take evidence for provingthe additional documents and sent the report soas to give a final decision in the present case.14.A reading of the Judgment of the first appellate Courtshows that the first appellate Court has straight away taken theadditional documents filed on behalf of the defendants in thesuit who were appellants before the first appellate Court withouteven giving any opportunity to the plaintiff to disprove theveracity or otherwise of such documents by way of evidence andthe first appellate Court has considered as if those documentswere proved and chosen to pass final judgment which is a patenterror committed by the first appellate Court in not followingthe code of Civil Procedure Code scrupulously. It is relevant topoint out at this stage that the plaintiff has been givenopportunity to file counter affidavit in the application forreceipt of the additional evidence. It is one thing to say thatthe first appellate Court has allowed the documents to beproduced and another thing to prove the document through propermethod of evidence. In the present case, the second aspect hasnot been followed by the first appellate Court. 15.In such circumstances, there is absolutely no difficultyto come to the conclusion that the reliance placed on thosedocuments which are not proved before the Court below cannot besustained. There is one other circumstance as pointed out by thelearned counsel for the appellant namely that in the writtenstatement filed by the defendants it is not even their case thatthe patta issued to the plaintiff on 31.05.93 marked as Ex.A1 hasbeen cancelled by the revenue authorities. On the other hand, itis the categoric admission of the defendants in the writtenstatement that the plaintiff is the absolute owner ofS.F.No.1044/3 in the following words of assertion;3.It is true that the suit property is situatedat Pallapalayam Village, Perundurai Taluk and theplaintiff is the absolute owner of S.F.No.1044/3 asper Patta dated 31.05.1993." Having stated so, in the later portion of the written statement,the defendants have chosen to state that the revenue authoritieshave divided the suit property into various parts and one partwas allotted to the plaintiff and his brother Anbazhagan inS.F.No.1044/3. Further stating that some other defendants havebeen given some properties which is as follows;-"7.The Government has divided the suit propertyand other properties into five and issued separatePatta to each son of Jeevanantham as per enjoyment. https://hcservices.ecourts.gov.in/hcservices/ The S.F.No. Of the property that allotted to theplaintiff and his brother Anbazhagars is 1044/3. TheSurvey field that allotted to the first defendant'sfather J.Joseph is 1044/3-B. The Survey filed thatallotted to the second defendant is 1044/3-C. TheSurvey field that allotted to the third defendant is1044/3D. The survey field that allotted to Jayaraj is1044/3-A. The suit property is still a vacant land andthe plaintiff is actually residing in the firstdefendants house for a monthly of Rs.300/-. For thepast several month the plaintiff defaulted in paymentof monthly rent."16.It is very clear that the defendants have made a specificcase in the appellate Court that the patta granted in favour ofthe plaintiff under Ex.A1 was cancelled by the revenueauthorities which was never the case in the written statement ofthe defendants at all. In spite of that the first appellate Courthas come to the conclusion of presumption stating that the "pattagranted to the plaintiff seems to have been cancelledsubsequently". In any event, whether such patta granted to theplaintiff under Ex.A1 was cancelled by the revenue authorities inaccordance with law or not, and subsequent issuing of variousdocuments in favour of the defendants namely Adangals etc.,relied by the defendants are all the matters which have to bedecided on proof of evidence after giving opportunities to theplaintiff and mere production of the document is not sufficientto come to the conclusion that the plaintiff is not inpossession. 17.In a similar circumstance as correctly pointed out by thelearned counsel for the appellant, this Court had an occasion todecide about the validity of such orders passed by the appellateCourt under Order 41 Rule 27 and 28 CPC and that was the casedecided in SRI VARADHARAJA PERUMAL TEMPLE v. JEYAKUMAR reportedin 2005 1 L.W. 444 the operative portion of the judgment is asfollows;-"14. . . . The reasonings recorded by the firstappellate Court in paragraph-13 is not inaccordance with Order 41 Rule 27 C.P.C. Nofinding is given as if the documents weresought to be produced before the trial Court.Whereas the trial Court refused to admit theevidence, which ought to have been admitted.Further, I find no finding that theappellant/defendant in A.S.No.60/92 wasunable to produce the document despite theexercise of due diligence, such as the same https://hcservices.ecourts.gov.in/hcservices/ was not within his knowledge or he was unableto produce the same, after the exercise ofdue diligence, etc. This being the position,by allowing the document, to be marked in theappellate stage, without giving anopportunity to the other side, to questionthe same by way of cross examination, theappellate Court deprived the right ofopportunity to the plaintiff. In this view,in my considered opinion, the admission ofthe additional evidence viz., Exs.B3-B5 arenot legally sustainable, which alone appearsto be the basis for allowing the appeal.Exs.B3 to 5 are not the documents emanatedbetween the parties and it seems, the noticeand reply notice is not connected with theplaintiff temple. This being the position,the plaintiff temple should have been givenan opportunity to explain under whatcircumstances these documents might have comeinto existence, such as the documents areprepared for the occasion or the recitals ifany, adverse against the temple are notbinding upon the temple etc. Thus, deprivingthe right of the temple, as if thesedocuments are all admitted documents afinding given by the learned AdditionalSubordinate Judge, Cuddalore, is legally notsustainable. Even taking into account thatthese documents could be admitted asevidence, as submitted by the learned counselfor the appellant, the alleged admissioncontained therein or the recitals, could notbe taken as the monumental proof to establishthe relationship between the parties, aslandlord and tenant."18.The effect of a party in not appearing in the witness boxoffering himself to be cross examined but only filing a statementof oath has been held to be a case of adverse inference to bedrawn against him as per Section 114 of Evidence Act. The conductof the party in not entering into the witness box and the law onthis aspect as per the adverse inference has been settled by theHonourable Supreme Court in the judgment rendered in VIDHYADHARv. MANKIKRAO reported in 1999 AIR SCW 1129 by referring to thevarious judgments of the High Courts and the Privy Council in thefollowing manner which is as follows;"16.Where a party to the suit does not https://hcservices.ecourts.gov.in/hcservices/ appear into the witness box and states his owncase on oath and does not offer himself to becross examined by the other side, apresumption would arise that the case set upby him is not correct as has been held in aseries of decisions passed by various HighCourts and the Privy Council beginning fromthe decision in Sardar Gurbaksha Singh v.Gurdial Singh, AIR 1927 PC 230. This wasfollowed by the Lahore High Court in KirpaSingh v. Ajaipal Singh, AIR 1930 Lahore 1 andthe Bombay High Court in Martand PandharinathChaudhari v. Radhabai Krishnarao Deshmukh, AIR1931 Bombay 97. The Madhya Pradesh High Courtin Gulla Kharagjit Carpenter v. NarsinghNandkishore Rawat, AIR 1970 Madh Pra 225, alsofollowed the Privy Council decision in SardarGurbakhsh Singh's case (AIR 1927 PC 230)(supra). The Allahabad High Court in ArjunSingh v. Virender Nath, AIR 1971 Allahabad 29held that if a party abstains from enteringthe witness box, it would give rise to aninference adverse against him. Similarly, aDivision Bench of the Punjab and Harayana HighCourt in Bhagwan Dass v. Bhishan Chand, AIR1974 Punj and Har 7, drew a presumption underSection 114 of the Evidence Act against aparty who did not enter into the witness box.19.However in the present case, by applying the said rulingsof the Honourable Supreme Court the first appellate Court has notappreciated the correct distinction between the production ofdocuments and proving of the documents as additional evidence. Insuch circumstances, when the law is clear on this aspect, it cannever be said as if the plaintiff has waived his right. In viewof the above said facts, the judgment and decree of the firstappellate Court are set aside and the second appeal standsallowed and the matter is remanded back to the first appellate https://hcservices.ecourts.gov.in/hcservices/ Court with a direction to follow the provision of Order 41 Rule27 and 28 CPC scrupulously by giving opportunities to both theparties as indicated above and pass appropriate judgment. Thesecond appeal stands allowed in the above terms. Consequently,connected miscellaneous petition is closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar jikrTo1.The Principal Subordinate Judge,Erode.2.The District Munsif-cum-Judicial Magistrate,Perundurai.3.The Record Keeper,VR Section, High Court, Madras.+1cc to Mr.V.Ayyadurai,Advocate Sr 17615+1cc to Mr.N.Manokaran, Advocate Sr 18053GM (CO)km/13.4.Second Appeal No.821 of 2006