This second appeal has been preferred against the judgment and decree, dated 28.1.1988 passed in A.S.No.65 of 1987 on the file of the Sub-Court, Srivilliputhur, reversing the judgment and decree of the Principal District Munsif, Sattur, dated 22.7.1985 in O.S.No.357 of 1983.
2. The first defendant is the appellant. The subject matter of the property in the suit is 30 sq. yards of vacant land situated in Survey No.178/1 in Anaikootum Village, Sivakasi Sub-Registration District, bounded on the North by the Local fund well; on the South by the East-West Street; on the East by the vacant site of Karuppan Pagadai, now belonging to Dhanuskodi Pillai and on the west by the house of one Kandan. The entire property is described as A.B.C.D. while the eastern half is shown as E.B C. F in the plaint plan. The first respondent/plaintiff instituted the suit for a declaration that the western half of the suit property belongs absolutely to him and to restrain the defendants by a permanent injunction from interfering with his possession and enjoyment of that portion and also for a declaration that the eastern half of the suit property also belongs to him and to direct the defendants to vacate and deliver vacant possession of the same and for costs.
3. According to the first respondent, the entire suit property is grama natham intended for putting houses and he purchased the property from one Kandan Pagadai as per the sake deed under Ex.A-1, dated 25.5.1929. From the date of the purchase, he is in possession and enjoyment of the said property. During May, 1981, he went to Rameswaram and stayed there for about four months and taking advantage of his absence from the village, the appellant-first defendant had constructed a house in the eastern half of the property by encroaching the same. He had no right to do so and, therefore, he should be directed to vacate and deliver vacant possession of the eastern half of the property to him.
4. The appellant/first defendant resisted the suit stating that he had purchased the property as per the sale deed, Ex.B-3 and he is in possession of the property and, therefore, the first respondent/plaintiff is not entitled to any other reliefs prayed by him in the suit.
5. On the above pleadings of the parties, the learned Principal District Munsif, Sattur framed the necessary issues. On a consideration of the evidence placed before him, both oral and documentary he reached the conclusion that the suit property is a Government poramboke and that the plaintiff is in possession and enjoyment of the western half of the property and, therefore, he is entitled only to the relief of permanent injunction in respect of the western half and that no declaration of title can be granted as the land belongs to the Government. So far as the eastern half of the property, the first defendant had put up a construction and the remedy of the plaintiff is to file a separate suit to claim damages. Therefore, he granted the relief of permanent injunction only in respect of the western half of the property and dismissed the suit in respect of the other reliefs.
6. Aggrieved with the permanent injunction granted against him in respect of the eastern half of the property, the first defendant preferred A.S.No.65 of 1987 on the file of the Subordinate Judge, Srivilliputhur. The plaintiff did not file any appeal or cross-objection in respect of the reliefs denied by the trial court.
7. The learned first appellate Judge, on a re-appraisal of the evidence on record, was of the view that the suit property is not a Government poramboke, but it is a grama natham, namely, house site and grama natham is not vested with the Government, and therefore, the plaintiff is entitled to all the reliefs prayed by him in the suit. Hence, he allowed the suit in entirety and granted all the reliefs which is being challenged in this second appeal.
8. The main substantial question of law that has been argued by the learned counsel for the appellant/first defendant is the first respondent/plaintiff having not filed any appeal or cross-objection against the judgment and decree of the trial Judge, the first appellate Judge has committed a grave error in allowing the suit in entirety and granting all the reliefs prayed for and, therefore, the judgment and decree of the first appellate Judge has to be set aside.
9. The learned counsel for the first respondent/plaintiff drew the attention of this Court to the decision reported in Delhi Electric Supply Undertaking v. Basanti Devi and another Delhi Electric Supply Undertaking v. Basanti Devi and another Delhi Electric Supply Undertaking v. Basanti Devi and another , (1999)3 C.T.C. 558 wherein paragraphs 16 to 19 it has been held as follows:
16.In the present case all the parties are before us which have been heard. The order which we propose to make is in tune with the principles laid by this Court in , [1998] 4 S.C.C. 655 and in order to do complete justice between the parties without ignoring the substantive rights of any of the parties conferred upon it by any law.
17. In our approach we can also draw strength from the provisions of Rule 33 of Order 41 of the Code of Civil Procedure which is as under:
33. Power of Court of Appeal: The appellate Court shall have power to pass any decree any made any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Sec.35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.
18. This provision was explained by this Court in Mahant Dangir and another v. Madan Mohan and others Mahant Dangir and another v. Madan Mohan and others Mahant Dangir and another v. Madan Mohan and others , 1987 S.C.C. (Supp.) 528 in the following words:
The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words as the case may require used in Rule 33 of O.41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraintě We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determined all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities.
19.Conditions as laid in provision of O.41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the court cannot be found wanting when it comes to exercise its powers.
In the present case on hand, all the parties are before this Court and the entire evidence has been taken into account by the first appellate judge and, in my opinion, the first appellate Judge had rightly held that the ends of justice require that all the prayers of the first respondent/plaintiff have to be granted in view of the pleadings and the evidence on record. Therefore, I accept the contention of the learned counsel for the first respondent/plaintiff that even in the absence of an appeal or a cross-appeal by the first respondent in respect of the reliefs died to him by the trial court, the first appellate Judge is justified in granting the same as he had rightly found that ends of justice require the granting of the reliefs to the plaintiff and O.41, Rule 33, C.P.C. provides for the same and the submission made by the learned counsel for the appellant in this regard has to be rejected.
10. So far as the contention that the property is a Government poramboke and it has vested with the Government and no declaration of title can be granted in favour of the plaintiff, it is submitted by the learned counsel for the first respondent/plaintiff that the suit property is not a Government poramboke but it is a grama natham intended to build houses and the same does not vest with the Government as per Sec.3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act. Reliance is placed on the decision reported in S.Rengaraja Iyengar and another v. Achikannu Ammal and another S.Rengaraja Iyengar and another v. Achikannu Ammal and another S.Rengaraja Iyengar and another v. Achikannu Ammal and another , (1959)2 MLJ. 513 where a learned Judge of this Court after making a reference of the law on the subject has clearly held that grama natham does not vest with the Government and the title of the same is not vest with the Government and the title of the same is not transferred to the Government. It is also held therein that the title of the plaintiff's vendor was not extinguished by virtue of the notification issued by the Government as per the said Act and the plaintiff can maintain a suit for title. I am in complete agreement with the principles of law evolved therein and, therefore, I am satisfied that the first appellate Judge is correct in granting the relied of declaration also in respect of the entire property in favour of the plaintiff/first respondent as per the pleadings and the evidence on record.
11. At this juncture, it is relevant to point out that in Arumugham v. Sundarambal , (1999)3 MLJ. (S.C.) 127: , A.I.R. 1999 S.C. 2216, it has been held in para.14 thus:
14. From the aforesaid judgment of the three Judges bench in , , A.I.R. 1963 S.C. 302, it is clear that this Court held that second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the trial court. The aforesaid judgment of this Court in , , A.I.R. 1963 S.C. 302, specifically distinguished Rani Hemanta Kumar Debi v. Maharaja Jagadindra Nath Roy Bahadur , (1906)16 MLJ. 272 (P.C.), rendered by the Privy Council on the ground that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate court was dealing with the correctness of the judgment of the first appellate court which reversed the trial court.
As already observed the first appellate Judge is correct in granting all the reliefs to the plaintiff in view of the provision in O.41, Rule 33, C.P.C. and on the evidence on record and no substantial question of law has been made out by the appellant/first defendant and no interference is called for.
12. In the result, the judgment and decree of the first appellate Judge are confirmed and the second appeal is dismissed, however, without costs.