Dismissed¶86

S.a.Anwar Basha v. Ameer Sahib

Madras HC7 Apr 2025SA/867/2010

Case brief

AI extract

What is this about?

Second appeal under Section 100 CPC, Madras High Court, 07-04-2025; declaration of title and permanent injunction; Gramanatham patta; UDR survey; Revenue Division Officer/Deputy Collector cancelled patta; plaintiff must stand or fall on own pleadings and evidence; decree by pricking holes in Defendant's evidence; Order XLI Rule 24 CPC; points for determination; additional issues without notice; no substantial question of law; dismissed at admission stage; Hosur / erstwhile Hosur now Krishnagiri District; O.S.No.102 of 1999; A.S.No.11 of 2006; Sathi Kumar Sukumara Kurup J.

What did the court decide?

None; the Second Appeal was dismissed at the admission stage itself and the connected Miscellaneous Petition (M.P.No.1 of 2010) was closed, leaving the first appellate judgment and decree in A.S.No.11 of 2006 intact. ¶86

S.a.Anwar Basha Vs Ameer Sahib — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the first Appellate Court's raising of additional issues without notice to the Respondent-in-Appeal/Plaintiff caused prejudice and miscarriage of justice so as to vitiate the first appellate judgment (Ground 'C'). +2 more

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Court's answer

The submission that the learned Appellate Judge raised additional issues is found unacceptable; under the C.P.C an appellate Judge, before proceeding to judgment, has to raise a point for determination and answer it, thereby disposing of the Appeal.

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Ratio / Principle

On perusal of the first appellate judgment it is found that the learned Judge had followed the procedure of C.P.C; the ground raised in the substantial question of law alleging otherwise cannot be appreciated.

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Key takeaways

The learned District Munsif, instead of appreciating the evidence, faulted by pricking holes in the evidence of the Defendants and granted a decree in favour of the Plaintiff, contrary to the settled principle that the Plaintiff must stand or fall on his own pleadings and evidence.ratio¶86
On the submissions of both sides it is found that the learned first Appellate Judge, on re-appreciation of evidence, found the grant of decree by the learned District Munsif, Hosur to be erroneous.ratio¶86
The Plaintiff had not established his case before the trial Court, and accordingly the learned first Appellate Court Judge had dismissed the suit; that outcome is not interfered with.

Detailed headnote1 paragraphs

Madras High Court (Sathi Kumar Sukumara Kurup J.), 07-04-2025 - SA No. 867 of 2010 under Section 100 C.P.C by the Plaintiff in O.S.No.102 of 1999 (District Munsif, Hosur), who had obtained a decree for declaration of title and permanent injunction concerning a Gramanatham patta (whose father's name was allegedly included during the UDR survey, and which the Revenue Division Officer/Deputy Collector later cancelled), against the judgment and decree of the Subordinate Judge, Hosur in A.S.No.11 of 2006 (dated 03.01.2008) which reversed the trial decree and dismissed the suit. Held: (i) under the C.P.C an appellate Judge must, before judgment, raise points for determination and answer them; the first appellate Judge having followed that procedure, the Appellant's grievance of additional issues framed without notice 'cannot be appreciated'; (ii) the trial decree was erroneous - the District Munsif granted it by pricking holes in the Defendant's evidence instead of on the Plaintiff's own pleadings and evidence, on the settled principle that the Plaintiff must stand or fall on his own evidence, and the Plaintiff had not established his case; (iii) no substantial question of law having been raised, the Second Appeal was dismissed at the admission stage itself and the connected M.P.No.1 of 2010 closed.

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SA No. 867 of 2010

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 07-04-2025

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CORAM

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THE HONOURABLE MR JUSTICE SATHI KUMAR SUKUMARA KURUP

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SA No. 867 of 2010 and M.P.No.1 of 2010

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S.A.Anwar Basha

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S/o Peyaru Sahib, Peddha Sigaralapalli Village And Post, Hosur Taluk, Dharmapuri Dist.

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Appellant(s)

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Ameer Sahib S/o Abdul Rahaman Sahib, Peddha Sigaralapalli Village And Post, Hosur Taluk, Dharmapuri Dist.

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Respondent(s)

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PRAYER: Second Appeal is filed under Section 100 of C.P.C to set aside the judgment and decree passed in A.S.No.11 of 2006 dated 03.01.2008 by the learned Subordinate Judge, Hosur and confirming the judgment and decree passed in O.S.No.102 of 1999 dated 25.04.2006 by the learned District Munsif, Hosur.

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https://www.mhc.tn.gov.in/judis

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SA No. 867 of 2010

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For Appellant(s): M/s.G.Pugazhenthi

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For Respondent(s): M/s P.S.Kothandaraman For Sole Respondent

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J U D G M E N T

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Second Appeal is filed to set aside the judgment and decree passed in

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A.S.No.11 of 2006 dated 03.01.2008 by the learned Subordinate Judge, Hosur

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by confirming the judgment and decree passed in O.S.No.102 of 1999 dated

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25.04.2006 by the learned District Munsif, Hosur.

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The learned Counsel for the Appellant submits that the Appellant is the

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Plaintiff before the learned District Munsif, erstwhile Hosur District now Krishnagiri District. The suit was resisted by Defendant. After full trial, by judgment dated 25.04.2006, the learned District Munsif, Hosur decreed the suit.

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Aggrieved the Defendants had preferred Appeal in A.S.No.11 of 2006 before the

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learned Sub Judge, Hosur.

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The learned Sub Judge, Hosur after hearing both the parties by

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judgment dated 03.01.2008 allowed the Appeal in A.S.No.11 of 2006 thereby

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set aside the judgment and decree of the learned District Munsif, Hosur in

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SA No. 867 of 2010

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O.S.No.102 of 1999 by dismissing the suit.

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Aggrieved, the Plaintiff in O.S.No.102 of 1999 before the learned

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District Munsif, Hosur and the Respondent in A.S.No.11 of 2006 on the file of

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the learned Sub Judge had preferred this Second Appeal seeking to set aside the judgment and decree of the learned Sub Judge Hosur in A.S.No.11 of 2006 and

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to restore the decree in favour of the Plaintiff in O.S.No.102 of 1999.

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The learned Counsel for the Appellant invited the attention of this Court to the discussion of evidence by the learned District Munsif, Hosur in Para 9 to 12. Also, he invited the attention of this Court to the Judgment of the

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learned first Appellate Judge, wherein it is held as follows,

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“tHf;if jhf;fy; bra;a[k; thjpna jk; jug;g[ tHf;if jFe;j Mtzj;Jld; rhl;rpaj;Jld; epUgdk; bra;a flikg;gl;ltuhthu;/ gpujpthjpfs; jug;gpy; cs;s Fiwfis itj;J jk; jug;g[ tHf;fpy; Mjhuk; njlKoahJ/ tprhuiz ePjpkd;wk; gp/rh/M/3d; go 10/6/99f;F gpwF jhth brhj;J rhuhl;rpau; cj;jputpd;go nky;KiwaPl;lhsu;fs;/1k; gpujpthjpf;F ghj;jpag;gl;lbjd;gij fUj;jpy; bfhs;shky;. nkw;go gp/rh/M/3 cj;juit vjpu;j;J vjpu;nky;KiwaPl;lhsu;/thjp jug;gpy; nky;KiwaPL bra;ag;glhjij fUj;jpy; bfhs;shky; th/rh/M/2 Md gl;lh gp/rh/M/3 d; go uj;Jbra;ag;gl;Ltpl;lepiyapy; nkw;go r';fjpfis fUj;jpy; bfhs;shky; th/rh/</2d; go jhth brhj;J thjpf;F ghj;jpag;gl;lJ vd;W jPu;t[fz;L nky;KiwaPl;lhsu;/1k;

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SA No. 867 of 2010

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jPu;g;g [

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gpujpghjpf;F vjpuhf thjpf;F Mjuthf jPu;g;gspj;jJ rl;lg;goa[k; r';fjpfspd;goa[k; jtwhdJ vd;Wk;. nkw;go tprhuiz ePjpkd;w jPu;g;g [ iu kw;Wk; jPu;g;ghidia uj;Jbra;J ,k;nky;KiwaPl;il mDkjpf;ntz;oaj mtrpabkd;Wk; ,e;j ePjpkd;wk; jPh;khdpf;fpwJ/”

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and the grounds raised by the Plaintiff as Appellant in this Second Appeal are as

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follows:

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i) The decree and judgment passed by the Sub-Court is against law, weight of evidence and probabilities of this case.

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ii) The Appellate Court failed to appreciate the oral and documentary evidences adduced by the Appellant.

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iii) The Appellate Court erred in framing new issues at the Appellate Court, without giving notice to the Appellant herein under the procedure of C.P.C.

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iv) The Appellate Court ought not to have appreciated the oral and documentary evidence of the respondents herein.

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v) The Appellate Court ought to have dismissed the Appeal suit and confirm the decree and judgment of the trial Court.

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It is the contention of the learned Counsel for the Appellant in the

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Second Appeal that the Plaintiff had sought declaration of title and permanent

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injunction. The Defendant had influenced Revenue Officials to include the

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name of the Defendants' father in the Patta granted to the Plaintiff in the

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Gramanatham during UDR period which had caused the cause of action for filing the suit.

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Also the learned Counsel for the Appellant submits that the first Appellate Court had raised additional issues and had not issued notice regarding additional issues to the Respondent in the Appeal, the Plaintiff in the suit. Therefore, the judgment of the learned first Appellate Judge discussing the additional issues raised by him had caused prejudice and caused miscarriage of

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justice to the Respondents. The Plaintiff who was having a decree in his favour,

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the learned first Appellate Judge had reversed the finding by raising additional issues and without notice to the Respondent/Plaintiff in the first Appeal.

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Therefore, based on the ground 'C' in the Second Appeal, the judgment of the

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learned first Appellate Judge is to be set aside.

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The learned Counsel for the Respondent submits that the Respondent is

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the Defendant in O.S.No.102 of 1999. On 24.10.1984 during the UDR-survey,

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the Revenue Officials had measured the properties and issued patta. At that

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time, the Plaintiffs' father misrepresented the Revenue Officials and included his

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name in the joint patta. Till such time, the patta in the Gramanatham stood in the name of the Defendants in the suit. The Defendant on coming to know about the inclusion of the name of the UDR patta had raised objection and preferred the Appeal before the Revenue Division Officer. After due enquiry, the Revenue Division Officer/Deputy Collector had cancelled the Patta granted to the Plaintiffs' father. The Plaintiffs' father had not preferred any revision or Appeal against the finding of the Revenue Division Officer before the District Revenue Officer cancelling the Patta in favour of the Plaintiffs' father. The Plaintiff was unable to prove his case before the trial Court. The learned District Munsif, Hosur had granted a decree in favour of the Plaintiffs only by pricking holes in the evidence of the Defendant against the settled preposition of law that the Plaintiff had to seek the relief based only on his or her own pleadings and evidence. Therefore, the grant of decree in favour of the Plaintiff by the learned District Munsif, Hosur is erroneous finding.

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The learned Counsel for the Respondent relied on Ex.B-2 and Ex.B-3 regarding the enjoyment of 1½ cents adjoining the Defendants' property. The

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learned Counsel for the Respondent invited the attention of this Court to the discussion of evidence by the learned first Appellate Judge in point for determination 1 and 2 in para 4 of the judgment.

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It is the contention of the learned Counsel for the Respondent that the

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learned Appellate Judge had elaborately discussed the evidence and based on appreciation of evidence had set aside the decree granted by the learned District Munsif, Hosur and had granted a decree by pricking holes in the evidence of the Defendant and not based on the evidence adduced by the Plaintiffs and pleadings of the Plaintiff. Therefore, it is the contention of the learned Counsel for the Respondent that the judgment of the learned District Munsif is erroneous and the judgment of the first Appellate Judge is well reasoned judgment based on settled principles of law that the Plaintiff has to stand or fall on the strength of his or her evidence and pleadings.

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Also the learned Counsel for the Respondent placed reliance on

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Order XLI Rule 24 C.P.C regarding the submission of the learned Counsel for

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the Appellant that the Appellate Judge had framed additional issues without

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notice to the Respondent in the Appeal. Therefore, the judgment of the learned first Appellate Court Judge is erroneous. Further the learned Counsel for the Respondent submits that in this Second Appeal there is no substantial question of law and the Appeal has to be dismissed at the admission stage itself.

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On perusal of the Appeal Memorandum, the submission of the learned Counsel for the Appellant is found unacceptable that the learned Appellate Judge had raised additional issues. As per C.P.C, the Appellate Judge before ever proceeding with the judgment has to raise point for determination and answer that point for determination and thereby disposed the Appeal.

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On perusal of the judgment of the learned first Appellate Court, it is found that the learned Judge had followed the procedure of C.P.C which is raised as an issue as a ground in the Substantial question of law which cannot be appreciated. As pointed by the learned Counsel for the Respondent, the learned District Munsif instead of appreciating the evidence and based on evidence

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granting a decree had faulted by pricking holes in the evidence of the Defendants and granted a decree in favour of the Plaintiff. From the submission of the learned Counsel for the Appellant as well as the learned Counsel for the Respondent it is found that the learned first Appellate Judge had on reappreciation of evidence found out that the grant of decree by the learned District Munsif, Hosur is erroneous. The Plaintiff had not established his case before the trial Court, thereby the learned first Appellate Court Judge had dismissed the suit. Further, this Second Appeal had not been admitted by raising Substantial questions of law, hence, the Second Appeal is dismissed at the admission stage itself. Consequently connected Miscellaneous Petition is closed.

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07-04-2025

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Shl

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Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No

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