Kannaiya Naidu vs Jayarama Chettiar and another

Paul, J.—The question that arises for determination in this appeal which has been filed against the dismissal of an application filed by the appellant under S.23(c) of the Tamilnadu Act IV of 1938 as amended by Act VIII of 1973 is whether S.23(c) of Tamilnadu Act IV of 1938 as amended by Act VIII of 1973 is applicable to this case. The first respondent obtained a decree against the appellant in O.S. No. 166 of 1963 and in execution thereof be brought the property to sale and it was purchased by the second respondent who it is contended purchased it for the benefit of the first respondent. The first respondent contended that the appellant was not entitled to the benefits of Act IV of 1938, for he does not own a single cent of land. He also repudiated the allegation that the property was purchased by the second respondent for the benefit of himself (first respondent).

On behalf of the petitioner-appellant, Ex. A-1, a sale deed executed by one Dhanapal Chettiar in his favour has been filed. But it was contended on behalf of the first respondent that the petitioner sold away that property so purchased under Ex. A-1 and in support of that assertion he filed Ex. B-1, a registration copy of another sale deed, dated 24th July, 1963 and it clearly shows that the petitioner has sold to one Pethusami Naidu for a sum of Rs. 700 the properly purchased by him under the sale deed, Ex. A-1. The petitioner further relied on Exs. A-2 to A-6, certified copies of chitta extracts and adangal extracts showing that one Kannan Naidu had raised crops in R.S. No. 307/11. But then, as found by the learned District Munsif, the petitioner''s name is Kannaiya Naidu and he is son of Beeman alias Narayanaswami Naidu ; but the father of Kannan shown in Ex. A-2 is one Narayanaswami Naidu. Kannan whose name is found in Exs. A-2 to A-6 has filed an affidavit in which he has stated that R.S. 307/11-54 cents in extent belongs to him and that he got the same under the settlement deed dated 22nd October, 1956 and has been in enjoyment of the same. Ex. B-3 is the settlement deed executed in his favour by his grandmother Thulasi Ammal. The name of the appellant is Kannaiya Naidu and his father''s name is Beeman alias Narayanaswami Naidu; but in Exs. A.2 to A-6 the name of one Kannan is mentioned as the owner of R.S. 307/11 and his father''s name is shown as Narayanaswami Naidu. Ex. B-4 is a patta in the name of Kannan Naidu and Exs- B 5 and B-6 are kist receipts in the name of Kannan Naidu and they relate to R.S. 307/11. Therefore, it is that the learned District Munsif found that the affidavit of Kannan and Exs. B-3 to B-6 conclusively prove that the appellant is not the owner of R.S. 307/11 but another Kannan is the owner of the land. Further in Ex. B-2 a certified copy of the counter filed by the appellant in E.P. 38 of 1964 be has categorically stated that he did not own any moveable or immovable properties. From all these circumstances, the learned District Munsif concluded that the appellant was not entitled to the benefits of the Tamil Nadu Act IV of 1938 as amended by the Tamilnadu Act. 8 of 1973 end dismissed the petition filed under S.23-C of the Tamilnadu Act IV of 1938 as amended by Act 8 of 1973. That finding of fact supported by so much of evidence cannot now be canvassed.

The learned Subordinate Judge, however, on appeal, merely dismissed the appeal holding that the sale of the property in favour of the second respondent was after the aforesaid Act came into force and as such S. 23-C would not apply. The grievance of the learned counsel for the appellant is that the aforesaid judgment of the learned Subordinate Judge is not a valid judgment at all, for, first of all, the learned Subordinate Judge has not dealt with the question whether the appellant is an agriculturist under Act IV of 1938 as amended by Act 8 of 1973, and secondly the judgment does not conform to O. 20 R. 4 (2) and O. 41 R. 31C.P.C., and it is not in accordance with law. He has cited a number of decisions to show that such a judgment has to be set aside and the case remanded to the lower appellate court for fresh hearing.

The first of these decisions is the one in Gadday Ramachandriah v. Gadday Kistiah AIR 1951 Hyd. 69. There the District Munsif, without writing in his order the reasons as to why the suit was not proved, what were the issues, what were the pleadings and what was the evidence of the parties as a result of which he thought that the case was not proved, merely dismissed the suit staling that it was not proved by evidence, and hence that order of the learned District Munsif was set aside.

In Dallo Vs. Jagan Lal, it was held that O. 20, C.P.C., relating to judgments and decrees is not exempted from application to the Provincial Small Cause Courts and a court has to see whether there is proof of claim before it need inquire as to the truth or otherwise of the defence and disbelief of a defence does not naturally involve proof of a claim and a judgment which says merely, "I disbelieve the defence. Claim proved and decreed with costs" and does not contain the points for determination and consequently is without any decision on such points, is no judgment in fact.

In Dadagar Singh v. Smt. Shah Kuar AIR 1968 Punjab and Harayana 341 it was held that where a judgment does not comply with the provisions of O. 20 R. 4 (2) C.P.C. the decision is liable to be set aside straightaway.

In Chander v. Anantram AIR 1955 N.U.C. Cases (Jammu and Kashmir) 3685 it was held that in every judgment, there must be a concise statement of facts, the points for determination, decision on these points and the reasons for such a decision and where the appellate judgment is not in accordance with law and some of the points going to the root of the case, though raised in the appeal, have been left unnoticed, the judgment will be set aside and the case will be remanded for fresh hearing.

In Saminatha Ambalam v. P.K. Nagaraja Pillai AIR 1973 Mad. 110; 85 L.W. 539 it was held that where in appeal the judge in a very short judgment dismissed the appeal agreeing with the decision of the trial court without framing any points for determination and applying his mind independently of the judgment of the trial court and without any discussion of the evidence, such a judgment is vitiated in its failure to state the points arising for determination and discuss the evidence on matters in controversy; and Raghavan J., set aside the judgment and directed the lower appellate court to dispose of the appeal according to law.

In view of the aforesaid decisions, the learned counsel for the appellant wants me to remand the case back to the lower appellate court. No doubt the lower appellate Court did not set out the points for consideration. The judgment merely states as follows: "Today when the appeal came up for hearing, arguments heard. The sale was after the Act came into force. Therefore S. 23-C will not apply. Appeal dismissed with costs." No doubt this judgment is not in compliance with R.4 (2) of O.20C.P.C. for there is a failure to state the points for determination. Nevertheless, the point that arose for determination before the courts below was whether the appellant was entitled to the benefits of Act IV of 1938 as amended by Act 8 of 1973. The learned District Munsif held that the appellant was not entitled to the benefits of the Act inasmuch as he did not own any land at all and was not an agriculturist. The learned Subordinate Judge, on appeal, apparently felt that even assuming that the appellant was an agriculturist, yet inasmuch as the sale was after the Act came into force, S.23-C would not apply, and hence dismissed the appeal. It has been held by a Bench of this court in Velayudam Thankayyan Vs. Rev. G.W.T. Trowell, that the High Court would not have jurisdiction to interfere in second appeal in what is virtually a question of fact, even if the finding be erroneous, and in case the High Court is inclined to view the disposal under the appeal as inadequate or imperfect, the only jurisdiction the High Court would have is to set aside the decree and to remit the first appeal for further hearing and disposal; and if the existing findings of fact by the trial court are explicit, and have not been dissented from by any of the superior courts, it is not necessary to remit the first appeal back for disposal, or call for any further finding and under S.103, C.P.C., if the High Court is of the view that the evidence on record is sufficient it may certainly determine the issue of fact necessary for the disposal of the appeal. In the case now before me, the simple question for determination before both the courts below was whether the appellant was entitled to maintain an application under S.23-C of the Tamil Nadu Act IV of 1938 as amended by Act 8 of 1973. The learned District Munsif, as a matter of fact, found that since the appellant did not own a single cent of land he cannot make an application under S.23-C of the Act. The learned Subordinate Judge, however, on appeal, held that since the sale itself was after the Act came into force, S.23-C would not apply. The finding of the learned District Munsif that the appellant was not entitled to apply under S.23-C of the Act since he did not own a single cent of land, is supported fully by the evidence on record and that finding has not been disturbed by the lower appellate court and in fact such a finding cannot be challenged now in the second appeal. Therefore, in view of that finding, there is no question of the appellant being entitled to maintain an application under S.23-C of the Tamil Nadu Act IV of 1938, as amended by Act 8 of 1973. The question, whether even assuming that the appellant is an agriculturist, such an application under S.23-C of the Act would be maintainable in this case, is a mere hypothetical one and need no; be determined in view of the finding of fact arrived at by the learned District Munsif. In these circumstances, even though the judgment of the lower appellate court does not conform to the provisions of O.20, R.4(2), C.P.C., I do not think that this is a case where by reason of it the matter should be remanded back to the specific finding of fact arrived at by the learned District Munsif that the appellant is not an agriculturist who would be entitled to the benefits of the aforesaid Act. The second appeal is therefore dismissed.