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Premavathy v. Thiruvaduthurai Adheenam - S.A.No.64 of 1997  RD-TN 1822 (7 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07/06/2007
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.64 of 1997
7.Minor Baby Salini .. Appellants Defendants
(P.7 represented by the second appellant.) Vs
through its Adheena Harthar
Sri-la-Sri Sivaprakasa Pandara
Tanjore District. .. Respondent
Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 22.07.1996 made in A.S.No.118 of 1994 on the file of the learned Principal Subordinate Judge, Tirunelveli, reversing the judgment and decree dated 27.07.1994 made in O.S.No.1477 of 1983 on the file of the Principal District Munsif, Tirunelveli.
For Appellants : Mr.S.S.Sundar
For Respondent : Mr.V.K.Vijayaraghavan
This second appeal is focussed as against the judgment and decree dated 22.07.1996 made in A.S.No.118 of 1994 on the file of the learned Principal Subordinate Judge, Tirunelveli, reversing the judgment and decree dated 27.07.1994 made in O.S.No.1477 of 1983 on the file of the Principal District Munsif, Tirunelveli.
2. A re'sume' of facts absolutely necessary for the disposal of the second appeal as stood exposited from the records could be portrayed and parodied thus: The nitty-gritty of the averments in the plaint would be to the effect that the defendants having taken on lease as per Ex.A.1 the lease deed for doing agricultural operation, changed the purpose of lease and constructed a building and also running a limekiln. Hence, the suit was filed before the Munsif Court.
3. Denying and disputing, challenging and impugning the allegations/averments in the plaint, the defendants filed the written statement to the effect that the suit property was unfit for cultivation even at the time of taking lease under Ex.A.1 and virtually, that entire vicinity got developed into housing plots and as such, there was no possibility of doing cultivation at all; the defendant obtained permission, under an express agreement from the previous Peishkar of the plaintiff and then only, started construction. Accordingly, they prayed for the dismissal of the suit.
4. During trial, P.W.1 was examined and Ex.A.1 was marked on the side of the plaintiff, whereas D.W.1 to D.W.4 were examined and Exs.B.1 to B.10 were marked on the side of the defendant.
5. Ultimately, the trial Court dismissed the suit.
6. Being aggrieved by and dissatisfied with the judgment of the trial Court, the plaintiff filed the appeal before the first appellate Court, which reversed the judgment and decree of the trial Court and decreed the original suit.
7. Thereupon, the defendant preferred the second appellant on the following main grounds among others:
Ex.A.1 emerged in the printed format as it was the formal practice to obtain lease in that form. In view of the fact that the suit land was unfit for cultivation, there arose Ex.B.9, the agreement between the defendant and the same Peishkar of the plaintiff who executed Ex.A.1 and that absolutely, there is no doubt about the genuineness of Ex.B.9. D.W.1 to D.W.4 were not cross- examined so as to impeach their credibility relating to their evidence given in support of the defence pleas. Section 92 of the Indian Evidence Act is not a bar for emergence of Ex.B.9 even though it emerged subsequent to Ex.A.1. Accordingly, the defendants prayed for setting aside the reversal judgment of the first appellate Court and for confirming the judgment of the trial Court.
8. My learned Predecessor framed the following substantial questions of law at the time of admitting the second appeal:
"1. Whether Section 92 of the Evidence Act is attracted in the regard to the documents Ex.A.1 and B.9?
2. Whether the document Ex.A.1 is admissible and conclusive between the plaintiff and the defendant?"
9. At the time of arguments, the learned Counsel for the respondent raised an additional substantial question of law, of which the learned Counsel for the second appellant also has been put on notice. In my considered opinion, it appears to be a relevant substantial question of law and hence, the following additional substantial question of law is also framed. "Whether Ex.B.9 is untenable in view of lack of pleadings specified in the written statement?"
10. Heard both sides in entirety.
11. For convenience sake, the parties are referred to according to their litigative status before the trial Court.
12. The learned Counsel for the second appellant/plaintiff would argue that the first appellate Court without any basis misdirected itself and reversed the detailed and reasonable findings given by the trial Court; after admitting the signature of Chokkalingam Pillai Peishkar in Ex.B.9, it is not open for the plaintiff to turn turtle and have a volte face and put forth an antithetical plea as though Ex.B.9 would not be binding on the plaintiff; in paragraph Nos.8 and 12 of the written statement, though not Ex.B9 has been referred to specifically the agreement is referred to; the first appellate Court discarded the evidence of D.Ws; P.W.1, the new Peiskhar who was examined on behalf of the plaintiff, was totally a stranger to that land as well as to the facts pleaded in the plaint and the written statement and as such, his deposition should not have been believed by the first appellate Court.
13. Per contra, by way of torpedoing and challenging the arguments of the learned Counsel for the second appellant, the learned Counsel for the respondent would put forth his argument relying on the evidence to the effect that the written statement is as silent as silence could be relating to Ex.B.9; if at all, Ex.B.9 emerged even at least at the time of filing of the written statement, then they would have very well specified it so or under that written statement, they would have listed under the caption list of documents as contemplated under Order VIII Rule 2 C.P.C., (As amended by Amendment Act 1976), but that was not done so. Any amount of evidence, without the backings of the pleadings should be eshewed. The first appellate Court was right in disbelieving Ex.B.9 as within a short span of time from Ex.A.1, it emerged; without any lapse of time, with great care, the plaintiff approached the Civil Court in the year 1983 itself complaining about the illegal construction raised by the defendant and accordingly, he prayed for the dismissal of the second appeal.
14. The quint-essence, the nitty-gritty, the gist and kernel of the entire problem before this Court is as to whether Ex.B.9 is a genuine document or not?
15. It is a trite proposition of law that the preponderance of probabilities would govern the adjudication in civil cases. The admitted narration of facts are to the effect that the suit was filed as early as on 13.12.1983, whereas Ex.B.9 was filed in the trial Court on 23.12.1997 so to say, fourteen years after the filing of the suit. The written statement itself was filed before the trial Court on 21.07.1984 without Ex.B.9. This itself is a glaring fact which was failed to be noticed by the trial Court. If really Ex.B.9 is a genuine document, there is no rhyme or reason as to why after filing of the written statement on 21.07.1984, Ex.B.9 was filed on 23.12.1997. One other probability looms large as under.
16. If really, the plaintiff Adheenam permitted the defendants to raise construction and use it as limekiln, there would have been no necessity to file the suit immediately in the year 1983 itself. There is nothing on record to show, what actuated or accentuated, impelled or propelled, the plaintiff to file such a suit after having allegedly committed in black and white in Ex.B.9. Hence, this is one other factor as against the genuineness of Ex.B.9. It is also an admitted that as on the date of filing of Ex.B.9 before the Court, the said Chockkalingam Pillai Peishkar was not alive. However, he was the Peishkar till the year 1985. Hence, it is clear that even during the life time of the said Peishkar, Ex.B.9 was not filed, and it had not been even referred to in the written statement. The plaintiff had not the opportunity of approaching the said Chockalingam Pillai Peishkar and got the facts clarified and this is yet another probability against Ex.B.9.
17. The learned Counsel for the second appellant would develop his argument, that even as on the date of the emergence of Ex.A.1, that land was unfit for cultivation and even then, Ex.A.1 was accepted as though it is a lease for agricultural purpose. If that be so, the defendants should have proceeded as such on assumptions and presumptions, that the lease is note for agricultural purpose. But, there is no rhyme or reason on the part of the plaintiff to develop some suspicion and approach the Peishkar to get clarified and obtain allegedly Ex.B.9. There is no valid reason as to why Ex.B.9 had not been got executed instead of Ex.A.1 itself. As such, the said argument on the side of the second appellants fails to carry conviction with this Court.
18. The factual position is to the effect that the limekiln is being run there. Neither in Ex.B.9 nor in any other document, there is no reference to any permission having been granted to the defendant to have such limekiln which obviously requires permission from civic body and also consent from the owner also. But, it appears that no such steps were taken. Yet one other probability also strikes the mind of this Court. After Ex.A.1, if any permission is required, to vary the terms contained in Ex.A.1, then there should have been some correspondence and that no petition was submitted to the Adheenam setting out the reasons for varying the terms as contained in Ex.A.1, so as to change the use of land from agricultural to some other use including industrial use. How all of a sudden, Ex.B.9 emerged, for which there is no convincing answer at all.
19. The learned Counsel for the respondent also correctly pointed out that in Ex.B.9 dated 15.10.1982, the embossed stamp papers are bearing the date as 25.01.1982. This is also one other factor operating as against the genuineness of Ex.B.9. Hence, in view of all these facts available, I could not hold that the first appellate Court was perverse in giving its findings. The first appellate Court is a last Court of fact and that Court exercised its discretion in a proper manner. In such view of the matter, I do not incline to destabilise or interfere with the decision of the first appellate Court.
20. Relating to the substantial questions of law, in view of my discussion supra to the effect that Ex.B.9 is not a genuine document, it could be taken as accordingly answered and the trial Court ought not to have entertained Ex.B.9 as a reliable document.
21. In the result, the second appeal fails and the same is dismissed, confirming the judgment and decree of the first appellate Court in A.S.No.118 of 1994 on the file of the learned Principal Subordinate Judge, Tirunelveli, dated 22.07.1996. However, in the facts and circumstances of this case, there is no order as to costs.
1.The Principal Subordinate Judge, Tirunelveli.
2.The Principal District Munsif, Tirunelveli.
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