R VEERAPPAN Vs. SHANMUGAVELU

JUDGEMENT

(1.) To what extent the jurisdiction of the Civil Court is usurped under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Owenrship) Act, 1971 (hereinafter called the Act) is the principal question that is raised in this second appeal

(2.) The respondent-plaintiff brought O.S. No. 463 of 1975, on the file of the District Munsif Court, Kumbakonam, against the appellant-defendant for redemption of the suit Property from the appellant and for directing the appellant to deliver possession as also for recovery of mesne profits, both past and future. The mortgage was oral, The respondent is the purchaser of the equity of redemption, while the appellant was put into possession of the property by the transferee from the original mortgage, Abdul Wahab. The defence is total denial of the oral mortgage. It is stated that Abdul Wahab sold the superstructure to the appellant and that the appellant is, therefore, entitled to all the benefits of Kudiyiruppu Act 40 of 1971 and is an agricultural labourer eking out his livelihood by agricultural operation. The respondent cannot invoke the jurisdiction the Civil Court for any purpose. It is relevant to notice that in the plaint the respondent had denied that the appellant is an agriculturist or an agricultural labourer.

(3.) The trial Court overlooked the fundamental issue, viz., 'Is the Civil Court's jurisdiction to determine whether the site is a 'kudiyiruppu' and whether the appellant is an agriculturist or an agricultural labourer, barred under the Act despite the specific averment in para 6 of the written statement'. 'The plaintiff cannot invoke the jurisdiction of this Court for any purpose'. It is true such a defence as to ouster of Civil Court's jurisdiction was not raised in the grounds of appeal before the lower appellate Court; but then the appeal, A. S. No. 48 of 1976, being a continuation of the suit, the lower appellate Court ought to have taken cognizance of the vital issue as to its jurisdiction and render its finding thereon. As a matter of fact, in the course of its judgment the lower appellate Court did brief the defence set out in the written statement; nonetheless it had overlooked the vital points for determination. Let me reiterate that it is the primary duty of the first appellate Court to take note of all the issues, arising out of the pleadings, notwithstanding that in the grounds of appeal the particular point was not adverted to, so long as there is no indication that the particular point was not pressed and furthermore the general assertion that the judgment and decree of the Court below is erroneous, finds a place in the grounds of appeal. There is nothing in the records to indicate that the issues relating to ouster of Civil Court's jurisdiction were even given up. It might be that the learned counsel for the appellant in the lower appellate Court is equally to be blamed, but that will not absolve the first appellate Court of its duty to notice the issues arising out of the pieadings and to render its findings thereon.,