This Second Appeal has been filed against the judgment and decree made in A.S.No.101 of 1999, dated 04.06.2003, on the file of the Subordinate Judge, Padmanabhapuram, confirming the judgment and decree made in O.S.No.932 of 1994, dated 17.09.1999,on the file of the Additional District Munsif, Padmanabhapuram.
2. The gist and essence of the averments in the plaint is as follows: The plaint "A" schedule property originally belonged to Ammukutty Amma and her children and they are in peaceful possession and enjoyment of the same. They sold the plaint "A" Schedule property along with the portions of the house therein to the father of the plaintiffs 1 and 2 and i.e., Vasudevan Pillai, son of Padmanabhan Pillai, under registered a sale deed, dated 05.06.1961. From the date of purchase, he is in possession and enjoyment of the same. The adjacent western property is an ancient family house and house site of the plaintiffs and others and they are permanently residing therein. Whileso, the father of the plaintiffs 1 and 2 executed a will in favour his wife and children on 05.07.1962. He died on 14.01.1989. So the property devoloved upon his sons, plaintiffs 1 and 2 and husband of the third plaintiff and father of plaintiffs 4 and 5 by name Krishnan Nair, under "D" schedule item No.5, "F" schedule item No.6 and "G" schedule item No.5 respectively. Krishnan Nair predeceased him on 17.07.1986. The one third right of Krishnan Nair in the suit property subsequently devolved upon the plaintiffs 3 to 5, being his widow and children. The plaintiffs are in peaceful possession and enjoyment of the plaint schedule property, as absolute owners. The property lying further south and east to the plaint schedule property is subsequently obtained by the defendant in this suit and others. The defendant has got no manner of right, title or possession for any portion in the plaint "A" schedule property. But the defendant is now wantonly attempting to disturb the possession and enjoyment of the plaintiffs over the plaint "A" schedule property and also attempting to put up new constructions within the suit property. It was prevented. So the plaintiffs are constrained to file this suit for declaration of title and possession and for consequential injunction restraining the defendant and their men and agents from tresspassing or disturbing the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property (or) in alternative prayed that the plaintiffs are entitled to a decree for partition and separate possession of their plaint "A" schedule property being northern one half in the plaint "B" schedule property as no partition or separation effected among the sharers so far. On the contrary, the plaintiffs are entitled to a decree for demarcation and putting up separate boundaries for plaint "A" schedule property separating the same from the defendant's property through court in execution.
3. The gist and essence of the written statement filed by the defendant is as follows:
The plaintiffs are not the owners of the plaint schedule property. They are not in possession of the same. Their ancestors also had no right or possession over it. The alleged "Will" does not cover the suit property. Even if it was included, it is a mischevious inclusion. The suit property belongs to the defendant alone. He is in possession of it and it lies along with the admitted property of this defendant. There is an old fence to separate the plaintiffs' house site. Survey stones are also available at certain points to separate the plaint schedule property from the property of the plaintiffs' house site. The plaintiffs have not made any improvement in the suit property. The plaintiffs are not having title over the suit property. They do not have possession over the same. The suit property lies along with the property of this defendant. There is no cause of action to file the suit. The suit as framed is not maintainable in law. Hence, the defendant prayed for the dismissal of the suit.
4. The gist and essence of the additional written statement filed by the defendant is as follows:
The portion now claimed in S.No.287/2 is form part of this defendant's land. It lies along with the house site plot of this defendant. There is an old boundary to separate this defendant's land with the land of the plaintiffs. The plaintiffs were never in possession and enjoyment of the suit property, which was owned and possessed by the defendant, which situates within the property of the defendant. Even if any portion of the property belonged to the plaintiffs, the same is lost to them by long, open and continuous adverse possession of this defendant and his predecessors in interest at least from 01.10.1106 M.E being the date of partition.
5. The gist and essence of the additional written statement filed by the defendant is as follows:
The suit survey number has got a total area of 1 acre and 94 cents. The entire 1 acre and 94 cents was partitioned by metes and bounds. The present suit "B" schedule property was dealt with as "A" schedule property. It is clear from the sale deed produced by the plaintiffs. Since the whole subject-matter was partitioned, a suit for fresh partition of a definite plot will not lie. The defendant is the purchaser of a definite plot even according to him. A purchaser of a definite plot cannot seek the relief of partition and hence the relief of partition being one of partial partition cannot be allowed and prayed for the dismissal of the suit.
6. The gist and essence of the additional written statement filed by the defendant is as follows:
The plaintiffs are not entitled for demarcation and for putting up boundary. The boundaries are already there. The said boundaries are an old one. The D relief cannot be granted in the circumstances of the case. The prayer is inconsistent with pleadings. Hence the defendant prayed for the dismissal of the suit with costs.
7. The Additional District Munsif, Padmanabhapuram after going through the averments both in the plaint and the written statement and additional written statements, framed five issues, three additional issues and considering the oral evidence of P.W.1, D.w.1, Ex.A1 to Ex.A11, Ex.B1 to Ex.B25 and Ex.C1 to Ex.C3, dismissed the suit, stating that the plaintiffs have not proved the identity of the suit property and has not correlated the suit property. Against the same, the plaintiffs have preferred an appeal in A.S.No.101 of 1999, on the file of the Subordinate Judge, Padmanabhapuram. The learned first appellate judge after considering the arguments of both sides, framed one point for consideration and dismissed the appeal. Not satisfied with the same, the plaintiffs have preferred the present Second Appeal.
8. This Court, after considering the entire material records, admitted the Second Appeal on the following substantial questions of law:
1. When the trial court has categorically found that the plaintiffs are in possession of 9 cents from out of 13 cents to which they are entitled to, and when the ssid finding is not set aside by the lower court, whether the dismissal of the case of the plaintiffs in toto by the courts below is correct?
2. Since resurvey and resurvey numbers had not come into effect at the time of Ex.A1, whether the plaintiffs are dis-entitled to a decree on the ground that the re survey number is not stated in Ex.A1? and
3. Whether the judgment and decree of the trial court without considering the vital Ex.A8 survey Plan, as confirmed by the lower appellate court, are correct and sustainable?
9. The plaintiffs as appellants have filed a suit for declaration of title of "A" schedule property and for injunction and alternatively prayed for partition of half share in the "B" schedule property and for allotment of "A" schedule property to their share stating that their ancestor had purchased the properties originally from one Ammukutty Amma. She got the property as per the partition deed, dated 28.02.1986 under Ex.A10 and Ex.A11. The first plaintiff's father Vasudevan Pillai has purchased the same under Ex.A1 and Ex.A2, dated 05.06.1961 and from that date onwards, he is in possession and enjoyment of the same. After that, patta has been changed in his name. He executed a Will under Ex.A2 and Ex.A3, dated 05.06.1961. After his death, his LRs inherited the property as per the "Will". So they are in possession and enjoyment of the same. The respondent herein is now claiming title over the property. Hence, he come forward with the suit.
10. The respondent raised the contention that he is the owner of the suit property and he purchased the same from Chellam Pillai and Sadasivan Nair under Ex.B11 and Ex.B12 and he is in possession. Originally the property was allotted to one Raman under Ex.B1 and Ex.B2. As per Ex.B3 and Ex.B4, Janaki Pillai purchased the 0.13 cents as per Ex.B5 and Ex.B6. One Kumara Pillai has purchased the same under Ex.B7 to Ex.B10.. The defendant purchased the same under Ex.B11 and Ex.B12. Hence the defendant is the owner of the property. The property stands in his name and he is in possession and enjoyment of the same. Hence, he prayed for the dismissal of the suit.
11. The trial court after considering the oral and documentary evidence, dismissed the suit. Against that the plaintiffs have preferred an appeal in A.S.No.101/1999, which was also dismised. Aggrieved by the same, the present Second Appeal has been preferred by the plaintiffs.
12. The learned counsel for the appellants/plaintiffs would contend that the first appellate court has not followed the procedures laid down under Order 41 rule 31 of C.P.C. So the judgment and decree of the first appellate court has to be set aside and remanded back to the trial court and he relied upon decisions reported in (1997) 2 MLJ 57, (1996) 2 MLJ 550 and AIR 1916 Madras 427. At this juncture, the learned counsel for the respondent would rely upon decisions reported in (2006) 2 MLJ 63, (2007) 1 MLJ 266 and urged that even though the first appellate court has not followed the procedures laid down under Order 41 Rule 31 of C.P.C., the first appellate court has perused the entire judgement of the trial court and that the judgment has been passed in accordance with law and on meirts and a detailed discussion has been made therein and hence there is no need to set aside the judgment and decree of the First Appellate Court.
13. The learned counsel for the appellant would contend that the appellants herein have purchased the property and from that date onwards, the property has been in their possession and enjoyment. They purchased the property with well-defined boundaries. One Vasudevan, ancestor of these appellants have purchased the property from one Ammukutty Amma under Ex.A1 and Ex.A2. Ammu Kutty Amma got the property as per the partition deed, dated 28.02.1956. She is mentioned as a second party in Ex.A10 and Ex.A11. So the first appellant is entitled to a decree as prayed for in the plaint.
14. The learned counsel for the respondent would contend that on 01.10.1931, there was a partition between one Raman and 44 others and in that Raman has been allotted the suit property and the defendant has purchased the property from his decendents under Ex.B11 and Ex.B12, dated 22.10.1976 and his predecessor has been in title over the property. Hence he is in possession and enjoyment of the property. Hence the trial court has considered all the aspects in proper prospective and come to a correct conclusion. Hence, he prayed for the dismissal of this Second Appeal. He also urged that there is no question of law involved in this Second Appeal and hence there is no need to set aside the finding of the first appellate court. Hence, he prayed for the dismissal of the Second Appeal. He relied upon decisions in (2009)4 SCC 56 and AIR 2003 Madras 374 and urged that since there is no question of law involved in the Second Appeal, there is no need to appreciate both the oral and documentary evidence and prayed for the dismissal of the suit.
15. The learned counsel for the appellants would raise the contention that one more additional substantial question of law to be framed in respect of Order 41 Rule 31 of Civil Procedure Code. It is true that substantial question of law can be raised at any point of time. Here, also the learned counsel for the appellants has given one more additional substantial question of law stating that the first appellate court has failed to formulate a point for determination in the first appeal and so it is bad in law. So, additional substantial question of law has been framed, which reads as follows: "Whether the judgment and decree of the Courts below are correct and sustainable on account of the lower appellate Court's failure to formulate and decide proper points for determination in the appeal before it, as mandated in Order 41 Rule 31 of C.P.C., and the judgments of this Honourable Court reported in (1997) IIMLJ 57 and (1996) II MLJ 550 and other other judicial precedents?
16. The first point for consideration is whether the first appellate court has complied with Order 41 Rule 31 of C.P.C. The learned counsel for the appellants relied upon a decision reported in Kannammal, wife of Arumugam .vs. Kuppanna Gounder reported in (1996) II MLJ 550, the relevant portion reads as follows:
"In this case, the lower Appellate Court has miserably failed to state the points for determination and the decisions thereon. The object of this Rule making it incumbent on the part of the lower Appellate Court to raise points for determination is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise decision. The provisions of Order 41 Rule 31 of the Code of Civil Procedure are mandatory. In the instant case, the lower Appellate Court failed to state the exact question which arises for consideration in the appeal and require determination. Therefore, the judgment of the lower Appellate Court has been rendered by completely over-looking the provisions of Order 41 Rule 31 of the Code of Civil Procedure. The lower Appellate Court has rendered the judgment in a casual manner and cavalier fashion."
17. He also relied upon a decision in Arulmighu Visweswaraswami and Veeraraghava Perumal Temples, represented by its Executive Officer, Tiruppur, Coimbatore District .vs. R.V.E.Venkatachala Gounder and another reported in AIR 1916 Madras 427, the relevant portion, reads as follows:
7. In this case, the lower Appellate Court has miserably failed to state the points for determination and decisions thereon. The object of this Rule making incumbent on the part of the lower Appellate Court to raise points for determination is to clear up pleadings and focus the attention of the Court and the parties on the specific and rival contentions, which arise for decision. The provisions of Order 41 Rule 31 of the Code of Civil Procedure are mandatory. In the instant case, the lower Appellate Court has failed to state the exact question which arises for consideration in the appeal and require determination. The lower Appellate Court has not formulated any point at all for determination. Therefore, the judgment of the lower Appellate Court has been rendered by completely overlooking the provisions of Order 41 Rule 31 of the Code of Civil Procedure. The Lower Appellate Court has rendered the judgment in a casual manner and a cavalier fashion. "
18. He also relied upon a decision in K.M.M.Kadar Hussain .vs. O.M.R.Selvaraj and others reported in (1997) II MLJ 57,wherein the relevant portion, reads as follows:
" It is incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise for decision"
19. He also relied upon a decision in S.S.Swami @ Swaminathan .vs. Ramanathan reported in 1982 TLNJ 10, the relevant portion reads as follows:
"The point for determination in this appeal is, whether the failure on the part of the learned Second Additional Subordinate Judge to frame a point for determination in A.S.No.285 of 1978 vitiates the judgment as the mandatory provision of Order 41 Rule 31(a) CPC had not been complied with by it while disposing of the appeal. In other words, can the ground taken, namely, that the failure to frame a point for determination make the judgment of the lower appellate Court liable to be set aside."
and submitted that the finding of the first appellate court has to be set aside.
20. Per contra, the learned counsel for the respondent would rely upon a decision in G.Amalorpavam and others .vs. R.C.Diocese of Madurai and others reported in (2006) 2 MLJ 64(S.C), the relevant portion, reads as follows:
" It is no doubt desirable that the appellate Court should comply with all the requirements of Order 41 Rule 31,C.P.C. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31, C.P.C., and the judgment is not in any manner vitiated by the absence of a point of determination."
and urged that the Apex court has held for non-compliance of provision of order 41 Rule 31 of C.P.C, the Judgement is not in any manner vitiates by the absence of point for consideration.
21. While considering the rival submissions made by both sides, as per the decision reported in 2006(2) MLJ 63, it is true that the first appellate court has not complied with all the requirements under Order 41 Rule 31 of C.P.C. But,if it is possible to make out from the judgement that there is substantial compliance with the said requirements and that injustice has not thereby suffered, that would be sufficient. But, here, while considering the judgment of the first appellate court, even though the first appellate court has not framed any point for consideration, the learned first appellate judge has discussed all the documents and evidence in the judgment and then only concur with the findings of the trial court. In the above said circumstances, as per the decision reported in (2006) 2 MLJ 63, I am of the opinion that the decree and judgment passed by the first appellate court is in accordance with Order 41 Rule 31 C.P.C, even though no point for consideration has been framed by the first appellate court.
22. The learned counsel for the respondent would rely upon a decision in Bhuri Baiand others .vs. Ramnarayan and others reported in 2009 4 SCC 56 and urged that the trial court and the first appellate court has considered all the aspects in a proper prospective manner and come to a correct conclusion. There is no substantial question of law involved in the present Second Appeal and hence no interference is called for under Section 100 of C.P.C.
23. He also relied upon a decision in G.Mahalingappa .v. G.M.Savitha reported in (2006) 2 MLJ 197 and urged that the High Court in Second Appeal is not entitled to interfere with the concurrent findings of the courts below and until and unless it is found that there was perverse and not based on the sound reasoning. There is no quarrel over the proposition laid down in the citation. It is a concurrent findings of the courts below and it is well-settled that the first appellate court is the final fact findig court. Unless it was proved that the finding of the first appellate court as perverse, the High Court is not entitled to interfere with the concurrent findings of the courts below.
24. Now, this court has to decide whether there is any substantial question of law arise in this Second Appeal for consideration. In the paragraph 15, the additional question of law has been raised in respect of non-compliance of order 41 Rulw 31 of C.P.C. As per the decision of the Apex Court rendered in (2006) 2 MLJ 63, even though no specific point for consideration has been framed, if the first appellate court has considered the entire evidence on record and discuss the same in detail and come to a conclusion and its finding supported by reasons and so it is not vitiated. In the above said circumstances, there is a question of law in respect of Order 41 Rule 31 of C.P.C. Hence the question of law has been decided accordingly.
25. Substantial questions of law 1 to 3:
The total extent of old S.No.1292/A is 1 acre and 94 cents. The suit property consists of "A" and "B" schedule properties. In that "A" schedule property is in old S.No.1292/A and New S.No. is R.S.No.287/2 and 3, 13 cents. The entire "B" schedule property is old S.No.1292/A is R.S.No.287/2 and 3E- 26 cents. The appellants claiming declaration of "A" schedule property alternatively prayed for partition of half share in the "B" schedule property and allotment of "A" schedule property to his share. It is well-settled principle of law that the plaintiffs/appellants must prove their case. They cannot sought for the remedy on the weakness of the defendant's case. Even though they have stated that their predecessor in title one Ammukutty has got the property in a partition deed, dated 28.02.1956, under Ex.A10 and Ex.A11 she was allotted 26 cents in S.No.1292/A. From her Vasudevan Pillai has purchased the property under Ex.A1 and Ex.A2 on 5.6.1961. In that, there was a specific recital that she has obtained the same under a partition deed, dated 28.02.1956. She has alienated only 0.13 cents out of 1 acre and 94 cents. Vasudevan Pillai has executed a "Will" as per Ex.A3 and Ex.A4. The plaintiffs/appellants succeed the same as per the "Will" is not in dispute. The only dispute for consideration is whether the appellant has identified the "A" Schedule suit property?
26. It is pertinent to note that the first plaintiff alone examined himself as P.W.1. He has filed 11 documents and no document has identified the suit properties. Admittedly, the total extent of suit Survey Number 1292/A is 1 acre 94 cents. The appellant herein is claiming 13 cents with stated boundaries. But he has mentioned the New Survey Number as S.No.287/2 and 3. To correlate and identify the same, no revenue officials has been examined before the trial Court and no independent witness who is in possession of the adjacent properties has been examined before the trial Court. Only Advocate Commissioner has been appointed and he filed his report under Ex.C1 to C3. But he has not surveyed the suit property along with surveyor. It is well-settled principle of law that the plaintiffs must prove their case.
27. To identify or to correlate the suit properties no one has been examined. The document Ex.A5 is patta Pass Book. In that, it was stated that S.No.1439 is mentioned as S.No.287/3 0.11.0 cents,each 0.05.0 cents. It stands in the name of Janaki Pillai, Chellam Pillai, Vaudevan Pillai and Raghavan Pillai. So, it is a joint patta. Likewise, Ex.B8 Field Measurement Plan for S.No.287. It is also not helpful for either the appellants or the defendant/respondent. Ex.A6,Ex.A7 and Ex.A9 are only house tax receipts and property tax receipts which do not identify the suit property or correlate the suit property.
28. On the side of the respondent/defendant, he had filed documents Ex.B18 Patta Book, which stands in the name of Raghavan Nair. The property is mentioned as D.T.R.No.3952/91 287/3 Punjai dry land 0.11.0 cents . Ex.B19 to Ex.B25 are the tax receipts. Ex.B20,22 and 25 are not related to the suit properties. So in such circumstances, neither the plaintiffs/ appellants nor the respondent/defendant has not identified the suit properties. The learned counsel for the appellants/plaintiffs culled out only one line in the trial court judgment and argued that 13 cents in "A" Schedule property form part of 26 cents in "B" Schedule property. In paragraph 13 of the judgement, he culled out the following portion, which reads as follows:
13. th.rh.M. 10, 11, 1 Kjy; 4 MtzA;fs; Kyk; thjpfSf;F 13 brd;L ghj;jpak; cs;sJ bjhpa tUfpwJ.' Mdhy; thjpfSf;Fhpa 13 brd;Lk; ve;j rh;Bt vz;fspy; vt;tst[ tp;!;jPuzk; tUfpwJ vd;gJk; thjpfshy; bjspthf epUgpf;fg;gltpy;iy.
But he has not proved the same. In the above said circumstances, the appellants/plaintiffs herein have failed to prove the identity of the suit properties of 13 cents and they have not correlated the suit properties situated in Old S.No.1292/A = S.No.287/2,and 287/3 13 cents. He has not even chosen to mention that what is the extent in T.S.No.287/2 and 3. In the above circumstances, I am of the opinion that the appellants/plaintiffs have miserably failed to prove the identification of the suit properties and correlation of the properties from old survey number to new survey number by examining the revenue officials. In Ex.C1 to Ex.C3, he has not given any survey number. In the above circumstances, I am of the opinion that the appellants/plaintiffs have failed to prove the identification or correlation of the suit properties. Hence the appellants/plaintiffs are not entitled to any relief sought for in the plaint. Hence, Substantial question Nos. 1 to 3 are answered accordingly.
29. For the foregoing reasons, I am of the opinion that there is no infirmity in the decree and judgment of the trial court as well as the first appellate court and the same does not warrant any interference by this Court. The Second Appeal miserably fails and deserves to be dismissed.
30. In fine, the Second Appeal is dismissed and the decree and judgment of the trial court and the first appellate court are hereby confirmed. No costs.
vsn To
1. The Subordinate Judge, Padmanabhapuram.
2. The Additional District Munsif, Padmanabhapuram.