The plaintiff in O.S.No.158 of 1993 is the appellant before this Court.
2.The suit in O.S.No158 of 1993 was filed by the plaintiff for declaration to declare that the second item of the suit schedule property belongs to him and for a permanent injunction restraining the defendant in the suit from interfering with the plaintiff's peaceful possession and enjoyment of Item No.2 of the suit schedule property.
3.The case of the plaintiff before the trial Court is that, Item Nos.1 and 2 of the suit schedule property was allotted to one Ponnottakaran Nadar, who is one of the brothers of the defendant. The suit schedule properties were allotted to the above said Ponnottakaran Nadar in an oral partition made among his brothers. The said Ponnottakaran Nadar on behalf of himself and also on behalf of his minor sons along with another son executed a sale deed dated 05-09-1980 in favour of one Bagyalaxshmi Ammal for a sale consideration of Rs.10,000/-. The plaintiff purchased the suit schedule 1 and 2 properties from the above said Bagyalaxmi Ammal on 26-11-1984 for a sum of Rs.12,750/- through a Registered Sale Deed. Thereafter, the plaintiff has been in peaceful and enjoyment of the suit schedule properties and he has been paying the kist and changed the name of the electricity service connection to his name in respect of item 1 of the suit schedule property.
4.It is his contention that he has been using the suit schedule property for the past more than 12 years and therefore, he has also perfected the title by adverse possession.
5.It is specifically pointed out by the plaintiff in the plaint that the defendant in the suit identified the vendors before the Registrar at the time of executing the sale deed dated 05-09-1980 by his brother in favour of Bagyalaxmi Ammal and he is also an attesting witness of the sale deed dated 05-09-1980. Therefore, the defendant is estopped through claiming Item No.2 of the suit property as his own. It is also his further case that the plaintiff purchased a vacant site situated on the southern side on 01-08-1990 from one Arunachala Nadar and others and he has been using the second item of the suit schedule property to reach that vacant site through the Item No.1 of the property. While so, on 10-01-1993, the defendant in the suit, interfered with the plaintiff's possession of Item No.2 of the suit property by tying his goats. When questioned by the plaintiff, the defendant is claiming rights over the property and therefore, the plaintiff filed the above suit, i.e., O.S.No.158 of 1993 for the aforesaid reliefs.
6.The suit was resisted by the defendant by filing a written statement wherein it was contended by the defendant that the second item of the suit property is a common pathway belonging to all the brothers and therefore, it is not correct to say that it has been exclusively allotted to the share of his brother Ponnottakaran. He came to know about the alleged exclusive ownership of his brother with regard to Item No.2 of the suit property only on the basis of the sale deed dated 26-11-1984 after the above suit was filed. His contention is that he was not aware of the contents of the sale deed dated 05-09-1980 and as requested by his brother, he simply signed as a witness without knowing that it was shown in the sale deed that Item No.2 of the suit property was exclusively belonging to his brother. Therefore, his case is that it is not binding on him. It is his further contention that what was purchased by the plaintiff in 1984 is the lower portion of Item No.1 and the upper portion of Item No.1 was purchased by the defendant from his sister. Further, the plaintiff wanted to purchae the upper portion from the defendants brother one Periya Mariappa Nadar and the same was rejected by the Periya Mariappa Nadar. Hence, Periya Mariappa Nadar is a necessary party. Therefore, he contended that Item No.2 of the suit property is a jointly owned pathway of all the brothers and therefore, the plaintiff is not entitled to the reliefs as sought for in the plaint.
7.The trial Court framed the following issues namely:-
1)Whether the plaitniff is entiled to relief of declaration regarding Item No.2 of the suit property?
2)Whether the plaintiff is entitled to the relief of injunction as sought for?
3)Whether Item No.2 of the suit properpty is a common pathway?
4)Whether the suit is bad for non-joinder of necessary parties?
5)Whether the suit is barred by limitation?
and
6)To what other reliefs?
8.The plaintiff examined himself as PW.1 and marked Exs.A1 to A6 on his side. The defendant examined himself as DW.1 and marked Ex.B1 alone. A commissioner was appointed by the trial Court and her report was marked as Ex.C1 and the sketch was marked as Ex.C2.
9.After evaluating the evidence adduced before it, the trial Court came to the conclusion that Item No.2 of the suit property was not a common pathway contended by the defendant and it is the absolute property of the defendant's brother Ponnottakaran, who sold the same to Bagyalaxmi Ammal and from her it was purchased by the plaintiff. Therefore, the trial Court granted the declaratory relief as well as the consequential injunction decree. The trial Court also held that the suit is not bad for non-joinder of necessary parties and the suit has been filed in time. In the result, the suit was decreed as prayed for, with cost.
10.Aggrieved by the judgment of the trial Court, the defendant filed A.S.No.268 of 1994 and the lower appellate Court after re-evaluating the evidence, reversed the findings of the trial Court by concluding that the second item of the suit property is only a common pathway and it is not the absolute property of the plaintiff. Consequently, it dismissed the suit entirely. Challenging the judgment of the lower appellate Court, the plaintiff has filed the above second appeal.
11.This Court, on 09-02-1996 admitted the second appeal on the following substantial questions of law:
1)Whether the lower appellate Court has misconstrued and misread the evidence on record in reversing the judgment and decree of the trial Court?
b)Whether the lower appellate Court is correct in law in holding that the defendant is not estopped from denying the title of the plaintiff with respect to Item No.2 of the suit property, having attested the documents?
3)Whether the finding of the lower appellate Court on adverse possession without any objective consideration of the material placed on record can be sustained in law.?
12.Though notice was served on the respondent and the respondent entered through counsel, there was no representation on behalf of the respondent, in the last few hearings i.e, on 05-01-2009 and 19-01-2009. Hence, the appeal was heard in his absence.
13. I have heard the learned counsel for the appellant and I have also gone through the entire documents available on record.
14.The learned counsel for the appellant submits that the trial Court has elaborately considered the evidence and rendered its findings which was reversed by the appellate Court without any discussion and without any basis and in such circumstances, the findings of the lower appellate Court are perverse, requiring intereference of this Court. He further urged that the defendant has not merely signed as a witness in the sale deed dated 05-09-1980, executed by his brother and others in favour of the Bagyalaxmi Ammal, but also identified the parties before the Registrar and in such circumstances, he is estopped from claiming ownership of item No.2 of the suit property which was conveyed by his brother in the year 1980.
15.I have considered the submissions of the learned counsel for the appellant carefully.
16. Before the trial Court, the plaintiff marked Ex.A2, which is the sale deed dated 05-09-1980 executed by the defendant's brother and others in favour of the Bagyalaxmi Ammal. Ex.A3 which is the sale deed dated 26-11-1984 executed by Bagyalaxmi Ammal in favour of the plaintiff. The plaintiff also filed Ex.B6 which is the sale deed dated 02-09-1983 executed by one Meenakshisundaram in favour of one Periya Mariammal. On the basis of these three documents and on the basis of the oral evidence, the trial Court came to the conclusion that the plaintiff established his case and the defendant failed to establish his case that the Item No.2 is a common pathway owned by all the brothers. On the other hand, the only document filed by the defendant is Ex.B1 which is a sale deed dated 21-02-1994 which came into existence much after the suit was filed in the year 1983. This aspect was also properly considered by the trial Court while deciding the issues in favour of the plaintiff. Even before the trial Court, a contention was raised on behalf of the defendant that by merely attesting the sale deed dated 05-09-1980, the defendant is not estopped from asserting his right over Item No.2 of the suit property. This was disallowed by the trial Court after finding that not only the defendant signed the sale deed as witness, but also identified the parties before the Registrar. Thus, after elaborately considering the entire evidence and analysing it properly, the trial Court decreed the suit as prayed for.
17.But, the lower appellate Court has casually dealt with the matter and reversed the well considered findings of the trial court by simply relying on the oral evidence of DW.1 without properly considering the documentary evidence adduced on behalf of the plaintiff. The lower appellate Court has also lost sight of the fact that the defendant identified the parties before the Registrar. Instead, the lower appellate Court has simply stated that by merely signing the documents as a witness, it cannot be taken that the defendant is aware of its contents. Thus, the lower appellate Court has not properly evaluated the evidence and rendered findings only on the basis of oral evidence alone without properly looking into the documentary evidence. When the lower appellate Court reversed the findins of the trial Court, it has to give its reasons for such reversal by placing its reliance on the documents relied on and the evidence re-evaluated by it. If that is not being done and the lower appellate Court simply reverses the findings on no evidence or by omitting to consider the necessary documents, the same amounts to a substantial question of law and this Court in such circumstances can very well interfere with the findings of the lower appellate Court under Section 100 CPC.
18.In the case on hand, I am of the considered view that the well considered judgment and findings of the trial Court are set aside by the first appellate Court without giving proper reasons and without properly considering the documents adduced by the parties.
19. Therefore, I have no hesitation in setting aside the judgment and decree of the first appellate Court and thereby, restoring the judgment of the trial Court and the substantial questions of law are answered in the above terms and in favour of the appellant.
20.In the result, the Second Appeal is ALLOWED. No costs. Consequently, connected CMP.No.1970 of 1996 is closed.
gsr To
1.The District Munsif, Srivilliputhur.
2.The Addl.District Judge, Srivilliputhur.