This second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 26.04.2010 passed by the learned Additional District Judge, Fast Track Court No.IV, Erode in A.S.No.10 of 2004 reversing the judgment and decree dated 05.08.2003 passed by the learned Principal District Munsif cum Judicial Magistrate, Bhavani in O.S.No.400 of 2000.
2. The parties, for convenience sake are referred to here under according to their litigative status before the trial Court.
3. Heard both sides.
4. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
a] The plaintiffs filed the suit for declaration of their title over the suit property measuring an extent of 1.04 acres on the south western corner in S.No.878 of Anthiyur Village on the ground that the deceased father of the first plaintiff purchased the suit property and other extent of property under Ex.A4 and for recovery of possession. According to the plaintiff, the defendants trespassed into the suit property and hence it necessitated the plaintiffs to file the suit. The defendants resisted the suit. Whereupon, the trial court framed the relevant issues.
b] On the plaintiff's side, the first plaintiff examined himself as PW1 and marked Exs.A1 to Ex.A29. On the defendant's side, the second defendant examined himself as DW1 along with DW2 and marked Exs.B1 to B16.
c ] Ultimately the suit was dismissed by the trial court as against which, appeal was filed. Whereupon, the appellate court reversed the findings of the trial court and set aside the same and ultimately decreed the suit.
d] Being aggrieved by and dissatisfied with the judgment of the first appellate court, the defendants preferred this appeal on various grounds:
5. My learned predecessor framed the following substantial questions of law.
1. Whether in law is not the lower appellate court wrong in overlooking that the suit is hit by bar under Order 9 Rule 9 CPC as admittedly the previous suit on same cause of action had been dismissed for default?
2. Whether in law has not the lower appellate court failed to see that Chittayammal was only given life estate in Ex.B1 and thereafter, it has reverted to Chinnappa's legal heirs and thus defendants became entitled to 1.04 acre from Valiammal?
3. Has not the lower appellate court failed to see that Ex.A5 has not been proved as required under
Section 68 of Evidence Act read with Section 63 of Succession Act?
4. Is not the binding of the lower appellate court that the extent mentioned in Ex.A3 to Ex.A4 is not correct, perverse and opposed to
Section 92 of Evidence Act?
(extracted as such) Point No.1:
6. The learned counsel for the defendants would submit thus:
The trial court as well as the first appellate court misunderstood the distinction between res judicata and the concept got envisaged under Order 9 Rule 9 of CPC. The trial court applied the principle of res judicata and held that the principle of res judicata was not applicable in the facts and circumstances of this case. The fact remains that the suit, which was earlier filed by the same plaintiffs as against the same defendants on the same cause of action was dismissed for default and by way of adding fuel to the fire, subsequently, I.A.was filed for restoration, which was also dismissed. Thereafter the plaintiffs did choose to file the present fresh suit O.S.No.400 of 2000 ignoring the bar under Order 9 Rule 9 of CPC.
7. Whereas the learned senior counsel for the plaintiffs would submit that the suit was dismissed due to non-appearance of both sides and in such a case, the bar under Order 9 Rule 9 CPC would not be attracted.
8. No doubt, the trial court was wrong in understanding as though the defendants raised the plea of res judicata and in analysing the available facts with reference to the ingredients of Section 11 of CPC relating to the principle of res judicata. However, the plaintiffs filed the appeal and at that time, the defendants did not file any cross appeal even then, there is no bar for the defendants to raise the pure legal plea that the original suit itself was barred by Order 9 Rule 9 of CPC. Surprisingly, both the courts did not take into account the ingredients of Order 9 Rule 9 CPC and analysed the matter.
9. The learned Advocates on both sides in unison would submit that for the purpose of applying Order 9 Rule 9 of CPC read with Order 17 Rule 2 of CPC, certain factual aspects also should be looked into and in the fitness of things, it would be better for this court to remand the matter to the first appellate court for considering the said plea taking into account the factual position.
10. I could see considerable force in the submission because for the first time if this court deals with the matter, then it would not be in the interest of justice and certain factual analysis also is required to be considered before deciding as to whether Order 9 Rule 9 of CPC read with Order 17 Rule 2 of CPC is applicable or not. Hence, I would like to agree with the Advocates on both sides for remitting the matter to the first appellate court for consideration of this point.
11. The learned senior counsel for the plaintiffs would submit that both sides remained absent and hence, the suit was dismissed. In such a case Order 9 Rule 9 of CPC will not be attracted. Whereas the learned counsel for the defendants would submit that in fact the decree in the previous suit would not refer to absence of the defendants and it would refer only to the absence of the plaintiffs. Hence, some factual analysis is required in this regard.
12. This point is decided accordingly.
Point Nos.2 and 4:
13. These two points are taken together for discussion as they are inter-linked and entwined with each other.
14. According to the defendants, one Chinnappa Gounder was the original owner of the larger extent of land measuring 12.48 acres in Anthiyur village and he as per Ex.B1 settlement deed dated 26.10.1910 settled an extent of 3.12 acres in favour of one Chittayi Ammal, who happened to be his wife's sister for her life and after her life time, the settlor intended that the suit property should be devolved upon the settlor's legal heirs who are admittedly, the three daughters viz., Nallayiammal, Valliayammal and Pavayiammal. The same Chinnappa Gounder as per the Will dated 30.04.1920 bequeathed an extent of 8.48 acres so to say, the remaining extent in the larger extent of 12.48 acres in survey No.878 in favour of the aforesaid three daughters. It so happened that as per Ex.A1 the partition deed dated 03.05.1938, those three daughters got the said suit properties as well as the other properties partitioned among themselves and as per that Nallayiammal and Pavayiammal alone were allotted an extent of 4.24 acres each in survey No.878. Whereas Valliammal was not allotted any share in that survey number.
15. According to the learned counsel for the defendants the said Nallayammal as per Ex.A2 the sale deed dated 21.09.1942 allegedly purchased from the said Chitayyi Ammal 4 acres of land, which was allotted to her by Chinnapa Gounder and according to the learned senior counsel for the plaintiffs that Chitayyi Ammal referred to in Ex.A2 was not the Chittayi Ammal referred to in Ex.B1 and Ex.A26. The learned senior counsel for the plaintiffs would find fault with the ratiocination adhered to by the trial court that 4 acres or 3.12 acres which was allotted by Chinnappa Gounder to Chittayi Ammal for her life, after her life time, devolved upon his three daughters and those daughters got that extent divided into three shares is nothing but a mere figment of imagination.
16. Whereas the learned counsel for the defendants would submit that such ratiocination adhered to by the trial court was perfectly in order as it is in concinnity with Ex.B1, Ex.A26 and Ex.A1. The learned counsel for the defendants would also submit that the first appellate court in para No.19 of its judgment observed thus:
"19. The finding by the trial court that the appellants have given no explanation or reasons for not correcting or rectifying the clerical mistakes in Ex.A3 and Ex.A4 is beyond the scope of this suit and unwarranted in the light of the above observation,"
and such an observation of the first appellate court was totally untenable.
17. According to the learned counsel for the defendants Ex.A3 and Ex.A4 are relevant documents to be interpreted and accordingly, if it is viewed, it is clear that those documents were correctly interpreted by the trial court taking into consideration that after the death of Chittayi ammal an extent of 3.12 acres allotted to her as per Ex.B1 got devolved or reverted back to the legal heirs of Chinnappa Gounder the settlor and accordingly, each one of the daughters got one acre and odd and that one acre and odd alone is under the possession of the defendants as they happened to be the legal heirs of Valliammal one of the daughters of Chittayi Ammal and no doubt the reading of the judgment of the first appellate court would evince and evidence that the first appellate court has not actually understood the real gamut of the problem and without going through the judgment of the lower court and also oral and documentary evidence, it simply followed its own analysis, which is not supported by any documentary or oral evidence. Even though the learned senior counsel for the plaintiffs would put forth the point that the Chittayi Ammal referred to in Ex.A2 was not the Chittayi Ammal referred to in Ex.B1 and Ex.A26, yet according to the learned counsel for the defendants, absolutely there is no evidence in support of such contention.
18. According to the learned counsel for the defendants even PW1 in his chief examination did not say so.
19. I recollect and call up the following maxim:
judicis est judicare secundum allegata et probata - It is the proper role of a judge to decide according to the allegations and proofs.
20. According to the learned counsel for the defendants such a plea as put forth by the learned senior counsel for the plaintiffs was not in the pleadings or in the oral evidence. These aspects have not been considered by the first appellate court and it simply accepted the contentions of the plaintiffs and went to the extent of decreeing the suit itself.
21. I harp back to the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
22. Here the plaintiffs should have proved the case as to how the Chittayi Ammal referred to in Ex.A2 was not the same Chittayi Ammal referred to in Ex.B1 and Ex.A26. It is also to be noted by the first appellate court as to how the so called different Chittayi Ammal acquired her right at all.
23. Whereas in civil courts preponderance of probabilities would govern the adjudication. The ancient documents viz., Ex.A26 and Ex.A1 wherein Pavayiammal herself was referred to as the beneficiaries would agree virtually that Survey No.878 measuring a total extent of 12.48 acres originally belonged to her father Chinnappa Gounder and in such a case, it is not readily known as to how the plaintiffs could contend that there was one other Chittayi Ammal owned any land in survey No.878. However the learned senior counsel for the plaintiffs would pray for remanding the matter back to the first appellate court to re-consider all these aspects.
24. Both sides would submit that substantial question of law No.3 does not arise at all in this case.
25. The learned counsel for the defendants also would agree for getting the matter remanded back to the first appellate court so as to consider the matter afresh including the application of Order 9 Rule 9 of CPC r/w Order 17 Rule 2 CPC.
26. I could see considerable force in the submission made by the learned counsel on both sides.
27. Accordingly, I would like to set aside the judgment and decree of the first appellate court and remit the matter back to the first appellate court for re-considering the matter in the light of the observation made by this court in this judgment. Both the parties shall appear before the first appellate court on 07.02.2011 and the first appellate court shall dispose of the matter within a period of four months from the date of receipt of this judgment as per law.
28. Accordingly, this second appeal is disposed of. No costs.
vj2 To
1. The Additional District Judge, Fast Track Court No.IV, Erode
2. The Principal District Munsif cum Judicial Magistrate, Bhavani