Srinivasa Naicker vs Rangaswami Naicker and another

Mohan, J.—The first defendant is the appellant. The first respondent Rangaswami Naicker filed O.S. No. 327 of 1970 for a declaration of

his title to the suit property and for an injunction or in the alternative for delivery of possession. The suit property is of an extent of 6 cents and it is

the common case mat belonged ordinary to the second defendant. Under Ex. A-1 it was sold by the second defendant on 8th August 1968 in

favour of the plaintiff. But at the instigation of the first defendant be evaded registration and therefore, it had to be compulsorily registered on 19th

February 1969. The defendants colluded and brought about an ante-dated sale deed Ex. B-2, purporting to have been executed a little earlier

namely 3rd August 1968 in favour of the first defendant and the same was registered on 30th November 1968. In view of the fact that Ex. B.2 did

not convey any title, the title got by the plaintiff under Ex. A-1 should be upheld. This in short were the allegations in the plaint.

The defence was that Ex. A-1 was not executed by the second defendant, but his signature was obtained with a representation that he had to be

an attestor for some other sale. Ex. B.2 was not ante-dated and therefore Ex. B.2 should be preferred to that of Ex. A-1.

The learned District Munsif dismissed the suit. On appeal in A.S. No. 99 of 1973, the learned Subordinate Judge reversed the judgment of the

trial Court and held that the plaintiff was entitled to succeed.

Mr. T. Rangaswami Iyengar, learned counsel for the appellant (first defendant) urges before me contending that there is no issue as to whether

Ex.B. 2 was ante-dated and the lower appellate court has gone on to deal with it in paragraphs 13 to 23. Properly speaking according to him,

there is a compliance of O.41, R. 31 of the C.P.C., but there is no compliance of O. 41 R. 25, which enables the lower appellate court itself to

frame an issue. According to the learned counsel this ought to have been done and merely because the point for determination is set out in

paragraph 8 of its judgment, that will not be proper compliance of law.

It is further contended, relying on the decision of the Supreme Court in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, that in the Second

Appeal it is open to me to interfere if there is a material irregularity of procedure. Another case cited is Malaikolundu Chettiar v. Perla Pillai 1911-

2 M.W.N. 393. These contentions are met by Mr. K. Venkataswami, learned counsel for the first respondent stating that no prejudice has been

caused to the appellant by the failure of the trial court to frame any issue whether Ex. P. 2 was ante-dated, and assuming that some prejudice has

been caused in as much as issue No. 2 is comprehensive to cover these, that would be enough. This apart, the parties did really understand the

scope of the matter, and had let in evidence in that regard. It has been discussed under Point No. 2 by the lower appellate court. It is further

submitted that no exception can be taken to the proposition of law as regards the power of the second appellate court to interfere under S. 100 of

the C.P.C., if there is a material irregularity of procedure as held in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, . But, no such irregularity

has taken place in the instant case. In the case of Malaikolundu Chettiar v. Peria Pillai 1911 (2) M.W.N. 392 the appellate court chose to admit

the evidence and that is one important point of distinction. After having carefully considered the arguments advanced by both the learned counsel, I

am of the view that the Second Appeal has to fail for the following reasons:(1) the whole question in the case is, as between two competing title

deeds which is to prevail, namely Ex. A-1 or Ex. B-2 and I find that Issue No. 2 framed by the trial court is comprehensive enough and includes

whether Ex. B-2 was ante-dated or not. As rightly contended by the learned counsel for the first respondent evidence has been let in this regard

and I have not been shown as to bow prejudice has been caused to the appellant herein by the failure to frame issues: (2) the lower appellate court

has properly complied with O.41, R-31 of the C.P.C. and has set out a point for determination under Point No. 2. It has discussed whether Ex.B-

2 is ante-dated or not and it is not necessary when there is full and completed evidence to resort to O.41, R.25 and (3) the Supreme Court in R.

Ramachandran Ayyar Vs. Ramalingam Chettiar, lays down that it would be open to second appellate Court exercising jurisdiction under S. 100 of

the C.P.C. to interfere if there is a material irregularity of procedure which in that case happened to be one relating to misappreciation of evidence.

But, in the instant case, there is no such irregularity of procedure. In Malaikolundu Chettiar v. Peria Pillai 1911 (2) M.W.N. 392 the appellate

court chose to admit additional evidence which is not the case here. Thus, I dismiss the second appeal, but there will be no order as to costs No

leave.