Madras High CourtVanaja vs Chinnathambi @ Arunachalampillai on 18 July, 2013Author:G. RajasuriaBench:G. RajasuriaIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.07.2013
Coram:
THE HONOURABLE MR.JUSTICE G. RAJASURIA
S.A.No.1037 of 2011 and
M.P.No.1 of 2011

Vanaja				 				    .. Appellant

vs.

Chinnathambi @ Arunachalampillai		           .. Respondent
	
	This Second Appeal is directed as against the judgment and decree dated 04.03.2011 passed in A.S.No.7 of 2010 by the learned Subordinate Judge, Sankari at Salem in reversing the judgment and decree passed in O.S.No.316 of 1996 dated 10.08.2009 by the learned District Munsif Court, Sankari.

		For Appellant 	 : Mr.N.Jothi
                                            for Mr.N.Ponraj

		For Respondent   : Mr.S.V.Jayaraman,
					   Senior Counsel
					  for M/s Govi Ganesan
	

JUDGMENTThis Second Appeal is focussed animadverting upon the judgment and decree dated 04.03.2011 passed in A.S.No.7 of 2010 by the learned Subordinate Judge, Sankari at Salem in reversing the judgment and decree passed in O.S.No.316 of 1996 dated 10.08.2009 by the learned District Munsif Court, Sankari.2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.3. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus:(a) The plaintiff namely Chinnathambi @ Arunachalampillai, filed the suit as against the defendant/Vanaja, seeking the relief of declaration that he is the absolute owner of the property found described in the schedule of the plaint and also for injunction, so as to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property.(b) The gist and kernel of the averments in the plaint would run thus:One Alagammal who had no descendants of her own, allotted orally her immovable properties in favour of her uncle's sons namely, Suriakanthampillai, Chinnaiyapillai, Bangarusamy Pillai, Arunagiri, Sivaji, Rajaram, Uthampillai and the plaintiff. Accordingly, the plaintiff has been in possession and enjoyment of the suit property as well as other properties.  While so, out of the total extent of the suit property, on the southern portion, nine cents were sold to Tulasi Pillai's mother and to Thulasi Pillai, vide the sale deed dated 16.02.1958.  Thereafter, the original owner of the immovable property, viz., the said Alagammal executed the settlement deed dated 09.07.1967, allotting the properties which were already under the enjoyment of Alagammal's counsin's  sons.  As such, the plaintiff became the absolute owner of the suit property described in the schedule of the plaint.  Thereafter, the said Thulasi Pillai who became the owner of an extent of land under the sale deed dated 16.02.1958, sold that property to the defendant during the year 1981.  During the year 1992, the defendant unduly attempted to trespass into the suit property.  Hence this suit.(c) Per contra, challenging and refuting the averments/ allegations in the plaint, the defendant filed the written statement, the warp and woof of the same would run thus:The said settlement deed dated 09.07.1967 referred to in the plaint is invalid and ineffective and was not acted upon at any time and the description of the property shown in the settlement deed is incorrect.  It is true that the defendant purchased the property from Thulasi Pillai but not as plaintiff portrayed in the plaint.  The plaintiff is not in possession of the suit property.  The defendant purchased the properties in S.No.259/2 at Ernapuram village, under two registered sale deeds dated 18.11.1981 and 09.05.1984.  Those two items are assigned the S.No.259/3.  There is no such property as described in the schedule of the plaint.  Accordingly, he prayed for the dismissal of the suit.(d) The trial Court formulated the following issues and additional issues:"(1) Whether it is true that the suit property absolutely belongs to the plaintiff?(2) Whether the settlement deed dated 09.07.1967 alleged to be executed by one Alagammal is valid?(3) Whether it is true that the suit property is under the possession and enjoyment of the plaintiff?(4) Whether the plaintiff is entitled to the relief of declaration and consequential perpetual injunction as prayed for?(5) To what other relief, the plaintiff is entitled to?"ADDITIONAL ISSUE FRAMED ON 19.03.2001:"1. Whether the suit has been properly valued?"ANOTHER ADDITIONAL ISSUE FRAMED ON 28.07.2003

	"1. Whether the present suit is hit by the principal of Resjudicata, in view of the judgment and decree rendered in O.S.59/1960?"(extracted as such)(e) Up went the trial, during which the plaintiff/Chinnathambi (alias) Arunachalam examined himself as P.W.1 along with P.W.2/Manickam and Exs.A1 to A9 were marked; and on the defendant's side D.Ws.1 to 6 were examined and Exs.B1 to B22 were marked.  Exs.C1 and C2 were marked as Court documents.4. Ultimately the trial Court dismissed the suit as against which the defendant preferred the appeal, whereupon, the appellate Court reversed the findings of the trial court and decreed the suit in toto.5. Challenging and impugning the judgment and decree of the first appellate Court, the defendant preferred this second appeal on various grounds and also suggesting the following substantial questions of law:"(a) Whether the first appellate Court is correct in law in holding that the present suit is not hit by the principle of res judicata notwithstanding the fact in issue has been considered and decided in O.S.No.59 of 1960?(b) Whether the first appellate Court right in upholding the title of the plaintiff under Ex.A2 particularly when the admissibility and proof of Ex.A2 have been disputed very seriously?(c) Whether the first appellate Court being the final court of fact has committed an error in not considering the reasoning of the trial court while reversing the findings as contemplated underOrder 41 Rule 31 CPC?(d) Whether the first appellate court is correct in law in decreeing the suit for declaration and permanent injunction merely on the basis of Ex.A2 in the absence of any other oral and documentary evidence in line with the plaintiff's right?"(extracted as such)6. My learned Predecessor formulated the following substantial questions of law:"(a) Whether the first appellate Court is correct in law in holding that the present suit is not hit by the principle of res judicata notwithstanding the fact in issue has been considered and decided in O.S.No.59 of 1960?(b) Whether the first appellate Court is right in upholding the title of the plaintiff under Ex.A2 particularly when the admissibility and proof of Ex.A2 have been disputed very seriously?(c) Whether the first appellate Court being the final court of fact has committed an error in not considering the reasoning of the trial court while reversing the findings as contemplated underOrder 41 Rule 31 CPC?"(extracted as such)7. After hearing both sides, I thought fit to formulate the following additional substantial questions of law to the knowledge of both sides:"1. Whether the first appellate Court was justified in decreeing the suit concerning the entire suit property measuring an extent of 15 cents, when admittedly the plaintiff as per Ex.B16, sold an extent of 9 cents out of the 15 cents which he got under Ex.A2 and that too when boundaries are one and the same in Ex.A2 as well as in Ex.B16 and also without referring to the Commissioner's report and also in view of the erroneous averment in the plaint that Thulasi Pillai sold the property contained in Ex.A1, as per Ex.B16?2. Whether the first appellate Court was justified in ignoring the improper pleadings in the plaint and also the mis-description of the property in the schedule of the plaint?8. The learned Senior Counsel for the plaintiff would reiterate the stand of his client in the plaint and also would support the judgment of the appellate Court.9. Whereas, the learned counsel for the defendant/appellant inviting the attention of this Court to the various documents and the Commissioner's report, would highlight that the judgment of the first appellate Court was totally niggard and bereft of details and its findings are antithetical to the documentary evidence and there is no reference to the Commissioner's report at all.10. All the substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another.11. Indubitably and indisputably, one Alagammal happened to the be the owner of an extent of 2.54 acres in S.No.259/2.  It so happened that the plaintiff earlier executed Ex.A1 in favour of one Thulasi Pillai an extent of 9 cents to the north of Sankari road, presumably based on the oral allotment in his favour by Alagammal  referred to in the plaint.  It is the admitted case of the plaintiff himself that that sale deed EX.A1 executed by him and the oral allotment made by Alagammal were got set aside in the earlier proceedings in O.S.No.59 of 1960.  However, the same property referred to in Ex.A1 is found referred to in Ex.A2 as the southern boundary concerning the plaintiff's allotment of 15 cents of land under Ex.A2.  It is therefore, understandable that under Ex.A2, the plaintiff got 15 cents of land as under:"xU yf;fkpl;l mUzh$yk; rpd;djk;gp vd;fpwth; rh;t Rje;jpukhf mDgtpj;Jf;bfhs;Sk; rh;nt be/259-2 g[/V/ 2/54f;F jPh;it U:/3/96 ,jpy; Jsrp gps;isf;F ghj;jpag;gl;l fpHnky; ,Ugj;jpuz;L KH mfyKs;s gj;J b!z;L epyj;jpw;Fk; tlf;F bghd;dpahw;W Xilf;Fk; bjw;F yl;Rkpak;khs; ghfj;jpw;Fk; nkw;F Nhpafhe;jk;gps;is ghfj;jpw;Fk; fpHf;F ,jd; kj;jpapy;0/15 b!z;L epyk; g{uht[k; c& xU yf;fkpl;lth; mile;J bfhs;s ntz;oaJ/
							(extracted as such)
							(emphasis supplied)12. The plaintiff while executing the sale deed in favour of Thulasi Pillai as per Ex.B16, referred to the entire four boundaries for 15 cents of land found in Ex.A2 as the boundaries for the 9 cents of land which he sold under Ex.B16.  This discrepancy has not been found highlighted in the plaint and it was not also dealt with by both the Courts below.  An issue also was not framed in this regard.13. At this juncture, it is just and necessary to refer to the schedule of property in the plaint:"jhth brhj;J tpguk;nryk; hpo/. ky;yrKj;jpuk; rg;hpo. r';ffphp tl;lk;. vh;zhg[uk; fpuhkj;jpy; Kd;g[ gl;lh vz; 452f;F jw;nghija gl;lh vz; 838f;F f/hp/r/vz;/259-2 g[";ir Vf;fh; 2/54f;F jPh;it U:/3/96 ,jpy; Jsrpgps;isf;Fg; ghj;jpag;gl;oUe;J jw;nghJ gpujpthjpf;Fg; ghj;jpag;gl;l fpHnky; 22 KHk; cs;s Vf; 0/10f;Fk; tlf;F. bghd;dpahw;W Xilf;Fk; bjw;F. N:hpafhe;jk;gps;is ghfj;jpw;Fk; fpHf;F. yl;Rkp mk;khSf;Fg; ghj;jpag;gl;oUe;J jw;nghJ ghY vd;gtUf;Fg; ghj;jpag;gl;l fhyp epyj;jpw;Fk; nkw;F ,itfSf;F kj;jpapy; g[/Vf;fh; 0/15f;F jPh;it U: 0/24 ,J kFl";rhto Cuhl;rp xd;wpaj;jpw;F cl;gl;lJ/@

        		  (extracted as such)            
							  (emphasis supplied)14. The description in the schedule of the plaint, would amount to acknowledgment by the plaintiff himself that the defendant is the owner of an extent of 10 cents of land to the south of the suit property presumably having in mind the extent contemplated in Ex.A1 which was admittedly set aside by the Court in the previous proceedings.   However, in the body of the plaint he would aver as though Thulasi Pillai sold as per Ex.B4 what he purchased under Ex.A1.  Axiomatically and obviously, there is total self contradiction in the plaint itself. There is no knowing of the fact as to how the plaintiff could aver so, when for Ex.B16, Ex.A2 is the antecedent title deed and Ex.B16 is the antecedent title deed to Ex.B4. The first appellate Court miserably failed to take into consideration the maxim,
Nemo dat quad non habet - No one gives what he does not have;in disposing of the lis, in view of the fact that Ex.A2 under which the plaintiff claims title over the suit property does not refer to the property referred to in Ex.A1. However, in Ex.B16 the boundaries as found stated in Ex.A2 alone is found mentioned and not the property as found mentioned in Ex.A1.  In fact, one and the same southern boundary is found referred to in Ex.A2 as well as in Ex.B16.  Both the Courts below have not taken note of the crucial fact as to how ex facie and prima facie the plaintiff who was settled with 15 cents of land under Ex.A2 with four boundaries specified therein, could claim the said 15 cents with the same boundaries after he admittedly having sold as per Ex.B16, 9 cents of land by specifying the same four boundaries.  Whether boundary will prevail over extent or not, is a big question which ought to have been dealt with in this matter, but neither the parties nor the Courts below focussed their intention on that aspect.15. The trial Court no doubt dismissed the entire suit as though it was barred by res judicata, but such dismissal may not be tenable for the reason that in the earlier suit, precisely the present suit property was not the subject matter with all present complications and circumstances as narrated by both in the earlier verdict of the Court.  However, the oral allotments made by Alagammal in favour of her cousin's children were not recognised. The first appellate Court went tangent in not considering the aforesaid points, but dwelt on various other exhibits such as Ex.B5.  The first appellate Court has not even referred to the Commissioner's report, which would exemplify and demonstrate that between Sankari Road and the canal, their existed 24-1/2 cents and as prayed the plaintiff on the southern portion, 10 cents adjacent to the north of Sankari Road should be excluded because that constituted the southern boundary of the suit property and what remains is only 14-1/2 cents. Out of that 14-1/2 cents, there is nothing to indicate as to how much extent he claims ownership and that too after selling 9 cents of land as per Ex.B16 specifying the entire four boundaries to the south of canal and north of the said extent covered under Ex.A1.  Not to put too fine a point on it, the first appellate Court's judgment is certainly oblivious of the realities and antithetical to every rule in the statute book.16. I would like to recollect the maxim:Judicis est judicare secundum allegata et probata  It is the duty of a Judge to decide according to the facts alleged and proved.17. The plaint is brief as brevity could be, but it lacks clarity.  This has not been noted by both the fora below.  The finding of the appellate Court is not in pari materia or in consonance with the pleadings put forth before the Court also.  As such, it is glaringly and pellucidly, palpably and obviously clear that the plaintiff has not set out a clear case in the plaint.18. My mind is redolent and reminiscent of the following maxims:(i)  Affirmantis est probare  - He who affirms must prove;(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.19. The learned counsel for the defendant placing reliance presumably on the aforesaid maxims, would stress upon the fact that the plaintiff having failed to come to Court with a clear case, should not be given any indulgence by this Court to get the plaint amended and that the suit has to be dismissed in limine.20. My mind is redolent and reminiscent of the following maxim:Favorabiliores rei potius quam actores habentur  Defendants are held to be in a more favourable position than pursuers.21. Inasmuch as the defendant is in a better position than the plaintiff, the defendant obviously is trying to non suit the plaintiff.  However, both the Courts below without properly adverting to the real controversy in the suit, decided the lis.  I recollect the adage:"Every trial is a voyage of discovery in which truth is the quest",

as found embedded in  the decision of the  Hon'ble Apex Court reported in (2012) 5 MLJ 618 (SC) [A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam rep.by its President etc.]22.  The application of the maxim "Id certum est quod certum reddi potest  That is certain which can be made certain", was not considered by both the parties and the Courts below.  By way of disambiguating the ambiguity, I would like to highlight and spotlight that the burden is on the plaintiff to establish and prove facts and circumstances capable of attracting the said maxim.23. Accordingly, this Court cannot throw the baby along with the bath water.  The matter has to be thoroughly probed into and the truth has to be culled out.24. The appellate Court also without adhering toOrder 41 Rule 31 of CPCand without formulating proper points for consideration , simply reversed the finding of the lower Court. A fortiori necessarily the matter has to be remanded back to the trial Court giving liberty to the plaintiff to get the plaint amended and in such an event, the defendant also should be given  liberty to file additional written statement, proper additional issues should be framed by the Court and both sides should be given opportunity to adduce  oral and documentary additional evidence and whereupon, the Court should decide the lis purely on merits.25. On balance,(a) The first substantial question of law is answered to the effect that the principle of res judicata could only be made applicable in respect of the invalidity of Ex.A1 and the factum of oral allotment of share by Alagammal, and not to any other disputed points involved in this case.(b) The second substantial question of law is answered to the effect that  Ex.A2 is turned out to be virtually an admitted document even though the defendant initially challenged the validity of the same.  In fact, Ex.A2 is the antecedent title deed for Ex.B16, which is the antecedent title deed for Ex.B4.(c) The third substantial question of law is answered to the effect that the first appellate Court has not adhered toOrder  41 Rule 31 CPC.(d) The first additional substantial question of law is answered to the effect that the first appellate Court was not justified in decreeing the suit concerning the entire suit property measuring an extent of 15 cents, when admittedly the plaintiff as per Ex.B16 sold an extent of 9 cents out of the 15 cents which he got under Ex.A2 and that too when boundaries are one and the same in Ex.A2 as well as in Ex.B16 and also without referring to the Commissioner's report and also in view of the erroneous averment in 

the plaint that Thulasi Pillai sold the property contained in Ex.A1, as per Ex.B16.(e) The second additional substantial question of law is answered to the effect that the first appellate Court was not justified in ignoring the improper pleadings in the plaint and also the mis-description of the property in the schedule of the plaint.26. In the result, the judgments and decrees of both the Courts below are set aside and the matter is remitted back to the trial Court.Both parties shall appear before the trial Court on 29.08.2013.  The trial Court shall do well to see that the suit is disposed of purely on merits within a period of six months from the date of receipt of a copy of this order.Accordingly, this Second Appeal is disposed of.  No costs.  Consequently connected miscellaneous petition is closed.18.07.2013
Index   : Yes/No
Internet: Yes/No




To1.The Subordinate Judge, 
 Sankari at Salem.2.The District Munsif Court, 
 Sankari.G.RAJASURIA, J.,
gmsS.A.No.1037 of 201118.07.2013