w w w . L a w y e r S e r v i c e s . i n



Ramasamy Gounder (Died) & Others v/s Saminatha Gounder (Died) & Others

    Second Appeal No. 15 of 2002

    Decided On, 05 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Appellants: Chitra Sampath, Senior Counsel, S. Baskaran, Advocate. For the Respondents: R3, R5 to R7, V. Srimathy, Advocate, R1 & R2, Died, R4, No Appearance.



Judgment Text

(Prayer: The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree made in A.S.No.113 of 1998, dated 24.08.2000, on the file of the Additional District Court, Villupuram confirming the Judgment and decree made in O.S.No.44 of 1996, dated 31.03.1998 on th file of the District Munsif Court at Villupuram.)

1. The plaintiffs in O.S.No.44 of 1996 on the file of the District Munsif Court at Villupuram, having suffered a decree by Judgment dated 31.03.1998 and a subsequent adverse Judgment in First Appeal in A.S.No.113 of 1998, dated 24.08.2000 passed by the Additional District Court at Villupuram, are the appellants herein.

2. O.S.No.44 of 1996 had been filed by the plaintiffs viz., Ramasamy Gounder, Velayutham and Sakunthala against the defendants viz., Saminatha Gounder, Subramanian and Renganathan seeking declaration of title with respect to the property described as ',' in the Schedule of the suit property and also seeking possession/protection of possession of the suit property.

3. In the Schedule to the property, there are about 11 items of vacant land given in Schedule 'M', which the plaintiffs claimed to have fallen their share in which, they claimed right, title and interest. There are also 10 items of vacant land, which had been given in Schedule '<', which the plaintiffs have claimed have fallen the share of the defendants, in which, the defendants claimed right, title and interest.

4. There is also a Schedule ',' given to the Schedule of the plaint, which property is the subject matter of the contention in the lis and which property is actually part of the items mentioned in Schedule 'M', but which the plaintiffs claimed the defendants have encroached upon and therefore, they have sought declaration of title over the said properties/lands and also injunction to protect possession/recovery of possession.

5. The genealogy or relationship among the parties had been given as Schedule 'm' in the plaint. A perusal of the same, and I hope there is not much controversy over the said genealogy since it had been drawn up when the plaint was instituted in the year 1996, shows that the properties originally belonged to one Veera Gounder. He apparently had four sons viz., Angappan, Srirraman, Chinnatambi and Narayanan. The litigating parties in the suit are those who claim right, title and interest under the second son Sriraman, third son Chinnatambi and the fourth son Narayanan.

6. It had been stated that the branch of the first son, Angappan were not entitled for the share in the properties, the reasons for which, will be discussed later. Similarly, it was claimed that the branch of Chinnatambi, the third brother were also not entitled or do not have a subsisting right as on the date of the filing of the suit over the properties mentioned in the Schedule to the plaint.

7. The plaint proceeds on the basis that the defendants who are from the branch of Narayanan and the plaintiffs, who are from the branch of Sriraman, are only entitled to an undivided one half share and such half share had been determined and allotted between themselves and described and given in Schedule 'M' and '<'. Claiming that, in spite of such allotment, the defendants have encroached into ',' Schedule property which actually forms part of the 'M' Schedule properties, the suit had been laid.

8. The defendants filed a written statement wherein they denied the claim of the plaintiffs. They denied that Angappan did not have any male issues and they also stated that Angappan, more importantly, had a widow and thereafter, some properties were allotted to him. It was further claimed that even during the life time of Angappan, being the first son, the properties had been divided into four shares and thereafter, after the death of Angappan, his minor son Srinivasan, represented by his guardian and mother, sold specific items of the properties as well as the undivided 1/4th share. But generally, the defence was that the properties were not divided into two halves and that the family members or the defendants of the other two brothers' families namely Angappan and Chinnatambi, also had rights in the properties. It was also stated that the legal heirs of Chinnatambi had sold some of the properties to the remaining two brothers viz., Sriraman and Narayanan. 9. The main contention raised in the Second Appeal is that Angappan died prior to 1956 and therefore, women folk of the said family, even if they had been born to them, cannot claim any right, title or interest over the properties and such right, title and interest should be limited only to the male members.

10. In this connection, in the written statement, there was also mention about an earlier suit namely O.S.No.140 of 1977, which was contested by the defendants.

11. That suit emanated since Porkili, who was one of the daughters of Angappan had apparently settled few of the properties. This fact has to be taken in conjunction with the earlier statement that Angappan died prior to 1956 and therefore, lady members of the family do not have a right could not deal with the properties. Therefore, O.S.No.140 of 1977 had been agitated primarily questioning the right of Porkili to execute such Settlement Deeds. It was stated in the written statement that the suit should be dismissed.

12. On the basis of the aforesaid pleadings, the Trial Court/Additional District Munsif Court at Villupuram framed the following points for consideration:

(1) Whether the plaintiffs are entitled to the properties mentioned in ','?

(2) Whether the defendants had encroached upon the properties mentioned in Schedule ','?

(3) Whether the plaintiffs are barred from seeking any relief owing to res-judicata?

(4) Whether the defendants have prescribed title over the properties mentioned in Schedule ',' by adverse possession? And

(5) To what other relief the parties are entitled to?

13. The parties went to trial. On the side of the plaintiffs, two witness were examined as P.W.1 and P.W2 and on the side of the defendants, one witness was examined as D.W.1. The plaintiffs marked Exs.A1 to A47 and the defendants marked Exs.B1 to B14. An Advocate Commissioner had been appointed and his Report and Sketch had been marked as Exs.C1 and C2.

14. I am particularly concerned only with Ex.B2, which was the extract of the suit register of the earlier suit in O.S.No.140 of 1977.

15. The learned Trial Judge first took up for consideration, issue No.1 namely whether the plaintiffs were entitled to the properties given in Schedule ',' and after extracting the pleadings and the evidence, the learned Trial Judge found that, as a matter of fact, Angappan had died prior to 1956 and that, the genealogy as given in the plaint, is fairly acceptable and that the claim of the defendants that, after the death of Angappan, the other three brothers had enjoyed the properties holding undivided 1/3rd share each could not be accepted and such contention of the defendants was rejected. It was also found that some of the properties had been dealt with by way of sale and other conveyances. Finally, the learned Trial Judge, in view of the overlapping of rights over the properties mentioned in Schedule ',', refused to grant a declaratory right over the said ',' Schedule properties and holding other issues as consequential in nature proceeded to dismiss the suit.

16. Questioning such Judgment and decree of the Trial Court, the plaintiffs filed A.S.No.113 of 1998 which came up for consideration before the Additional District Court at Villupuram.

17. Quite apart from the said Appeal Suit, the learned Additional District Judge was also called upon to examine two Interlocutory Applications, namely I.A.No.28 of 2000 and I.A.No.43 of 2000. Both the Interlocutory Applications had been filed taking advantage of Order 41 Rule 27 of the Code of Civil Procedure seeking to produce further documents.

18. In I.A.No.28 of 2000, it was sought that the Judgment in O.S.No.140 of 1977 should be produced as an additional document. In I.A.No.43 of 2000, permission was sought to produce registered copy of the Sale Deed dated 30.09.1928, which would establish that the grand father namely Veera Gounder and his two brothers had dealt with the properties in favour of third parties on 03.09.1928 and at that time, the son Angappan was not alive and therefore, his name was not included in the Sale Deed.

19. The learned Additional District Judge, then proceeded to frame points for consideration under Order 41 Rule 31 of the Code of Civil Procedure. The following points were framed by the learned Additional District Judge:

“1) Whether the mode of division as presented by the plaintiffs regarding division of their family properties is proved.

2) Whether the defendants are barred in contending against the mode of division in view of Resjudicata

3) Whether the additional documents, the printed copy of the Judgment in O.S.No.140/77 (I.A.28/2000) and the Registration copy of the sale deed dated 3.9.1928 (I.A.43/2000) can be received as additional evidence on behalf of the Appellants/Plaintiffs? And

4) To what relief the parties are entitled to?”

20. The learned Additional District Judge examined the two Interlocutory Applications along with the First Appeal. Both the Interlocutory Applications were however dismissed. The learned Additional District Judge, held that the Judgment in O.S.No.140 of 1977 would not act as res-judicata and held that production of the said documents would not advance the case of the appellants. The Judgment and decree of the Trial Court was confirmed, necessitating the plaintiffs/legal representatives of the plaintiffs to file the present Second Appeal.

21. The Second Appeal had been admitted on the following substantial questions of law.

“1. Whether the Courts below were right in rejecting the plaintiffs' claim in “A” Schedule property when admittedly the brother Angappan and his son Srinivasan had died in 1928, long before Hindu Succession Act, 1956, leaving no male defendants, except the father of the plaintiffs and defendants? And

2.Whether the Courts below were right in holding that the decision in O.S.No.140/1977 will not operate as res-judicata in the present proceedings?”

22. Heard arguments advanced by Ms.Chitra Sampath, learned Senior Counsel on behalf of the appellants and Ms.V.Srimathy, learned counsel on behalf of the respondents.

23. The first substantial question of law revolves around Angappan, who apparently had died prior to 1956, before the Hindu Succession Act came into force and the consequent claim of the plaintiffs complaining rejection of their claim over the ',' Schedule property.

24. The second substantial question of Law is with respect to the decision taken by the First Appellate Court holding that the Judgement in O.S.No.140 of 1977, would not operate as res-judicata.

25. I would address the second substantial question of law first. In this connection, Ex.B2 had been produced which is the extract of the suit register of the suit in O.S.No.140 of 1977. That particular document had been produced on behalf of the defendants during the course of trial. Production of the suit register in the suit would indicate since the suit register is a permanent register of the Civil Court, that a suit had been instituted in O.S.No.140/1977. The parties to the suit and also the reliefs sought and the relief actually granted would also be mentioned.

26. Judgment in that particular suit was sought to be produced as an additional document in I.A.No.28 of 2000 filed under Order 41 Rule 27 CPC during the course of the hearing the First Appeal. That particular Interlocutory Application was dismissed by the learned I Additional District Judge.

27. A Judgment of the Court speaks for itself. Even otherwise, a more prudent approach of the First Appellate Court would have been to fallback on Rule 74 of the Civil Rules of Practice, which enables production of records from another Court. If at all the First Appellate Court had entertained any doubt with respect to either proof or otherwise of the Judgment in O.S.No.140 of 1977 it could have resorted to the procedure under Rule 74 of the Civil Rules of Practice, and could have taken judicial notice of the Judgment, particularly, because both the Civil Suit in which the First Appeal emanated and O.S.No.140 of 1977 were instituted in the very same Court. Even otherwise, a Judgment of a Court, cannot be subjected to proof. The issue of admissibility would also not arise. The issue of relevancy alone has to be examined. If the Court were to examine the relevancy of the Judgment in O.S.No.140 of 1977, then, the only manner it could be done is to allow I.A.No.28 of 2000 and take O.S.No.140 of 1977 on record, either by Court of both parties or by the procedure as envisaged under Order 41 Rule 28 of CPC and thereafter, discuss whether the said Judgment would act a res-judicata or not.

28. Dismissing I.A.No.28 of 2000 and simultaneously discussing the findings in O.S.No.140 of 1977 was not a proper approach by the First Appellate Court.

29. Learned Senior Counsel appearing on behalf of the appellants herein drew attention of this Court to the Judgment reported in (2018) 6 SCC 574 [Y.P.Sudhanva Reddy and Others vs. Chairman and Managing Director, Karnataka Milk Federation and Others], wherein, it was held that if a document is a public document, then, independent proof of such document is not required. If the document would assist in decision making then, the document can be taken up for consideration.

30. One factor which had played on the mind of the learned First Appellate Judge was the admission on behalf of the appellants that they were in possession of the records of the said suit in O.S.No.140 of 1977, but had not produced a copy of the Judgment during the trial. But, I would hold that if private correspondence were available and such private correspondences were withheld from purview by the Trial Court and later produced during the course of the First Appeal, then the party, who seeks to produce the same can be defaulted for not having produced then in the first instance. The same ratio or rationale cannot be applied to Judgments of Competent Courts. The issue of admissibility can never arise in the case of Judgments of Competent Courts. The issue of relevancy would have to be examined. If the issue of relevancy alone is to be taken then, judicial notice can be taken of a Judgment of a Competent Court and the same can be examined. However, the Judgment can be examined only if it is actually taken on record.

31. The fact that the appellants before the First Appellate Court were or were not in possession of the records in O.S.No.140 of 1977 would pale into insignificance, because the suit register had already been filed as Ex.B2 and the document now sought to be produced was the copy of the Judgment, which was actually the primary document from which the relief granted would have been reduced in a summary form Ex.B2. The Judgment is therefore not a fresh document newly introduced at the time of First Appeal.

32. It must also be mentioned that reference was also made in O.S.No.140 of 1977 in the written statement and therefore as a matter of fact, both the parties to a little extent, relied on the findings and reasons given in the Judgment in O.S.No.140 of 1997. Whether that Judgment acts as res-judicata or not, would have to be answered by the Court after giving an opportunity of hearing to both the parties to address the Court on that particular issue. That opportunity can be granted only when the document is actually taken on record.

33. The Court cannot assume or presume by reading a particular Judgment that it does not act as res-judicata. There is a break in the step between Order 41 Rule 27 CPC and Order 41 Rule 28 CPC. If a decision is taken to examine the document in detail as the learned Judge had done, then the provisions under Order 41 Rule 28 of the Code of Civil Procedure must be followed. The Judgment copy can even be marked as an exhibit by consent, since it is a public document and for all purposes, the genuinity or otherwise cannot be questioned by any of the parties. If it is taken on record, then, by consent an exhibit number should be given, or after following the procedure under Order 41 Rule 28 CPC either party should be given opportunity to speak about the surrounding circumstances of the said Judgment and after giving such opportunity the document should be analysed hearing arguments on its relevancy and whether it acts as resjudicata.

34. I hold that, in the present case, opportunity was denied to the appellants herein to advance arguments on the basis of the findings/reasons stated in the Judgment in O.S.No.140 of 1977. This has seriously prejudiced their rights to putforth their contention while claiming declaratory relief and also right to possession.

35. One further issue had come up during the course of arguments, namely whether the appellants would have to necessarily file a separate appeal/revision questioning the dismissal of I.A.No.28 of 2000 or whether the said order would merge itself with the First Appellate Court's Judgment and whether arguments in the Second Appeal can be advanced not only on the reasons advanced assailing the reasons given in the Judgment of the First Appellate Court and also assailing rejection of I.A.No.28 of 2000.

36. The issue can be answered straight away. When the First Appellate Court takes a conscious decision to reject an application filed under Order 41 Rule 27 CPC and proceeds to deliver Judgment on the available documents and evidence already on record, the party so aggrieved by that Judgment has preferred a Second Appeal, then the order passed in the Interlocutory Applications merges itself with the Judgment passed in the First Appeal and one comprehensive Second Appeal can be filed questioning both rejection of the Interlocutory Application and the dismissal of the First Appeal. There cannot be two separate appeals as, arguments had been advanced in both the Interlocutory Application under Order 41 Rule 27 CPC and in the connected First Appeal simultaneously.

37. The Courts have frowned upon delivering orders in application under Order 41 Rule 27 CPC independently and passing a separate Judgment in an Appeal. Both the orders merge together and therefore one Second Appeal lies.

38. In this connection, the learned Senior Counsel also brought to the notice of this Court an order of a learned Single Judge wherein, the learned Single Judge was called upon to examine a revision filed against the dismissal of an application under Order 41 Rule 27 CPC and the said revision was dismissed. That was the order in CRP (NPD).No.3581/2016, dated 18.11.2016 [Varalakshmi vs. G.N.Saravanan and three others].

39. Therefore, the arguments putforth by the learned counsel for the respondents that a separate appeal should have been filed with respect to the dismissal of the two Interlocutory Applications are rejected.

40. This leads me to answer the second substantial question of law namely whether the Courts below were right in holding that the decision in O.S.No.140/1977 will not operate as res-judicata in the present proceedings?

41. I would hold that the First Appellate Court had erred in holding so, in the absence of the document taken on record. Such a finding could have been given only after granting opportunity to both the learned counsels to speak on that issue.

42. In the absence of such assistance given to the Court, it was improper on the Court to take upon itself to examine the Judgment and decide whether its acts as res-judicata or not.

43. In view of the above reasons, I hold that the First Appellate Court had misdirected itself in dismissing I.A.No.28/2000 and proceeding to hold that the document sought to be produced did not act as res-judicata.

44. Simultaneously after Interlocutory Application in I.A.No.43/2000 to produce on record a particular Sale Deed, again a public document wa

Please Login To View The Full Judgment!

s dismissed and again, the same reasoning would apply to take it on record and then either accept or reject in manner known to law. 45. In view of the above findings, though the parties have been litigating for two or three decades as on date, I have no other option but remand the matter back to the First Appellate Court. I would allow I.A.No.28 of 2000 and I.A.No.43 of 2000. The matter is remanded back to the Additional District Court at Villupuram to re-hear A.S.No.113 of 1998 and give an opportunity to both the appellants/legal representatives of the appellants therein/respondents/legal representatives of the respondents to mark the documents produced along with I.A.No.28 of 2000 and I.A.No.43 of 2000 either by consent or if objections are raised, by following the procedure under Order 41 Rule 28 CPC and thereafter, hear arguments on merits on the said documents, and then pass a Judgment in the First Appeal. 46. In view of the said decision, the first substantial question of law is not taken up for consideration. 47. In the result, the Judgment and decree of the First Appellate Court in A.S.No.113/1998, dated 24.08.2000 is set aside. The matter is remanded back to the First Appellate Court, for fresh disposal in manner known to law. 48. I would also stipulate a time frame to the First Appellate Court to dispose of the said Appeal and two Interlocutory Applications in manner known to law. The Registry is directed to forward the records to the First Appellate Court/Additional District Court at Villupuram and after the records are received by that Court, notices may be issued to the parties and after the counsels had entered appearance, from that date an outer time limit of four months is given to dispose of the First Appeal and also the two Interlocutory Applications in manner known to law. If evidence is required, the First Appellate Court shall take upon itself to mark the said document and hear arguments afresh and pass a considered Judgment. 49. The Second Appeal is allowed. The Judgment and decree of the Additional District Court in A.S.No.113 of 1998 dated 24.08.2000 is set aside. The matter is remanded back to the Additional District Court as directed above. There shall be no order as to costs.
O R