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Swaminathan Ambalam Vs. P.K. Nagaraja Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond App. No. 1390 of 1969
Judge
Reported inAIR1973Mad110
ActsCode of Civil Procedure (CPC), 1908 - Order 20, Rule 4
AppellantSwaminathan Ambalam
RespondentP.K. Nagaraja Pillai
Excerpt:
- - 5 (a-2) clearly establishes this aspect. the contentions of the learned counsel are well founded. 1323 of 1969 arising out of another judgment of the same learned subordinate judge which also did not state the points arising for determination or discuss the evidence i hold that the judgment of the learned judge cannot be said to be a judgment and that it is vitiated by its failure to comply with the requirements of order 20, rule 4(2). civil p. i consider that the judgment in the present case is also vitiated in its failure to state the points arising for the determination and discuss the evidence on matters in controversy.1. the defendant is the appellant. the suit is for a declaration of the plaintiff's title to the suit property and for possession. the suit property originally belonged to ramalingam pillai and his wife pattammal. they mortgaged the same to lakshmi banking corporation (p.)ltd. the mortgagee represented by voluntary liquidator sri sundaresa iyer filed o. s. 106 of 1957 on the file of the district munsif, pudukottai on the said mortgage and obtained a decree. in execution of the said decree he purchased the property and took delivery on 9th july 1959. the defendant was in occupation of the shed covered by asbestos at that time as a licensee and when informed about the purchase, he vacated and gave possession to the auction purchaser. delivery was made with reference to the boundaries and.....
Judgment:

1. The defendant is the appellant. The suit is for a declaration of the plaintiff's title to the suit property and for possession. The suit property originally belonged to Ramalingam Pillai and his wife Pattammal. They mortgaged the same to Lakshmi Banking Corporation (P.)Ltd. The mortgagee represented by voluntary liquidator Sri Sundaresa Iyer filed O. S. 106 of 1957 on the file of the District Munsif, Pudukottai on the said mortgage and obtained a decree. In execution of the said decree he purchased the property and took delivery on 9th July 1959. The defendant was in occupation of the shed covered by asbestos at that time as a licensee and when informed about the purchase, he vacated and gave possession to the auction purchaser. Delivery was made with reference to the boundaries and the defendant has signed the delivery receipt. After delivery the liquidator died and Sri A. R. Krishnamurthi Iyer, Advocate, was appointed liquidator in his place. While he has in possession of the property on 17-1-1961, he sold the property to the plaintiff, he having sold the bricks and stones and the asbestos sheets to the plaintiff a few days before the sale. Taking advantage of the plaintiff's absence from Pudukottai the case of the plaintiff is that the defendant trespassed into the suit property and occupied a room and refused to vacate the same without any manner of right, title or interests in any portion of the property and when he was asked to vacate he threatened to cut the fruit bearing trees and the present suit is filed for declaration of the plaintiff's title and for possession.

2. The defendant denied the trespass and contended that he was in open, continuous possession of the property for over 16 years, that he has perfected his title by adverse possession, that he did not sign the delivery receipt, that the plaintiff has not acquired title to the suit property, that neither the plaintiff nor his predecessors-in-title were in possession of the suit property within twelve years prior to the suit, that the property never vested in the liquidator A. R. Krishnamurthi Iyer and that the sale in favor of the plaintiff is invalid.

3. The trial court framed five issues and on 7-6-1962 decreed the suit as prayed for.

4. The defendant filed A. S. 33 of 1962 to the Subordinate Judge, Pudukottai and the learned Judge allowed the appeal and the plaintiff filed S. A. 255 of 1963 to the High Court and the learned Judge allowed the appeal and remanded the suit for fresh disposal observing as follows-

'The defendant will be given an opportunity to make out an exact case as to the extent, which he claims and is in possession. The plaintiff also would have an opportunity to let in any evidence that he might consider necessary in order to prove that what he purchased is 2-05 acres of land, comprised within the boundaries given in his sale deed and mentioned in the plaint schedule. There will be no order as to costs. The finding with regard to the possession is also reconsidered after giving an opportunity to the parties to let in evidence.'

After remand the defendant filed an additional written statement. Two additional issues were framed and the learned Judge after consideration of the entire evidence held that the plaintiff's case of defendant's trespass on the suit property is true and that the plaintiff has got title to the entire property that is 2 acres 5 cents, that the plaintiff and his predecessors-in-title have been in possession of the suit property within twelve years prior to the date of the suit, that on 9-7-1959, the entire property was delivered to the liquidator. In the result the suit was decreed as prayed for.

5. The defendant filed A. S. No. 45 of 1968 and the learned Judge in a very short judgment dismissed the appeal agreeing with the decision of the trial court. The defendant has filed the above second appeal.

6. The contention of the learned counsel is that the entire judgment is vitiated by (1) the learned Judge not framing the point arising for determination as required by Order 20, Rule 4, sub-clause (2) of Civil Procedure Code. (2) but merely stating that 'the evidence on the side of the plaintiff satisfactorily shows that the entire property as mentioned in Ex. A-2 was delivered to the liquidator on 9-7-1959. The evidence of P. Ws. 1, 2, 3 and 4 Exs. P. 1, A. 4, A. 5 (A-2) clearly establishes this aspect.' without any discussion. The judgment does not show that the learned Judge applied his mind independently of the judgment of the trial court and came to an independent conclusion; and (3) the judgment is so brief as not to disclose the point for determination or any discussion of the evidence. The contentions of the learned counsel are well founded.

7. In S. A. 1323 of 1969 arising out of another judgment of the same learned Subordinate Judge which also did not state the points arising for determination or discuss the evidence I hold that the judgment of the learned Judge cannot be said to be a judgment and that it is vitiated by its failure to comply with the requirements of Order 20, Rule 4(2). Civil P. C. For the same reasons. I consider that the judgment in the present case is also vitiated in its failure to state the points arising for the determination and discuss the evidence on matters in controversy.

8. In the result, the judgment of the learned Subordinate Judge is set aside and the Subordinate Judge, Pudukottai, will take the appeal on his file and proceed to dispose it of according to law, in the light of the observations contained above. The costs of the second appeal will be provided at the final hearing of the appeal. The appellant will be entitled to there fund of the court-fee paid on the memorandum of appeal. No leave.

9. Appeal allowed : Case remanded.


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