PUTHIAVINAYAGAM PILLAI Vs. SIVASANKARAN PILLAI

JUDGEMENT

(1.) THE above second appeal has been filed by the plaintiff in O. S. No. 548 of 1980 on the file of the Principal District Munsif Court, srivilliputhur, who succeeded before the learned Trial Judge, but lost before the first appellate court. THE parties hereto are brothers, who are sons of one late Vellaiappa Pillai. THE suit was filed for declaration of the plaintiff's title to the suit schedule property and for possession of the same from the defendant. THE case of the plaintiff before the trial court was that he purchased a vacant site in the year 1948 and constructed two houses in the year 1949, that the plaintiff and defendant are brothers, that they had no ancestral properties, that the plaintiff was working as a teacher and he was also an Artist by profession and the houses in question were constructed from out of his self earnings, that in the year 1956 he had purchased a vacant site, north of the suit house and constructed two small houses, that he was taking care of the other members of the family who were younger to him, that in the year 1965, the father who abruptly left the family returned after twelve years and died in the disputed house situated in the eastern portion, that after about four year of joint living, the plaintiff wanted to have separate residence and therefore be permitted the defendant to live in the disputed house and possession of the defendant of the suit property was only permissive in character and since the defendant precipitated by giving police complaint claiming ownership of the property under the pretext and on the allegation that the plaintiff is attempting to disturb his possession, the necessity to file the suit arose after exchange of notices between parties.

(2.) THE defendant in his written statement contended that the plaintiff and the defendant originally belonged to Mamsapuram, that their family owned an ancestral masonry house at Mamsapuram and the plaintiff sold the ancestral house at Mamsapuram and purchased a site in the name of the plaintiff and constructed the twin houses separate entrances, that the purchase and constructions were done from out of the sale proceeds of the ancestral house and therefore the suit house belonged to the plaintiff and the defendant as ancestral property belonging to the joint family. It was also the claim of the defendant that there was no partition between the brothers in respect of the joint family properties and the plaintiff and the defendant are co-parceners or co-sharers having equal interest in the suit property and it was only for the purpose of convenience, the plaintiff and the defendant were living in separate portions. THE further contention of the defendant was that he live along with his parents in the house marked K. L. B. G. that the defendant got married in the year 1955 and the brothers exchanged the house and the plaintiff being the elder brother, used to receive all the money earned by the defendant also and the fact is proved by the painting of the portrait of' Sri Andal', for painting a sum of rs. 4,000 was received as remuneration and apart from the above work, they have also painted many portraits of Gods and Alwars and received remuneration from donors and that from such income, the brothers have purchased a house which is opposite to the suit house. It is only thereafter, the brothers, divided it into two separate portions in continuation of the houses occupied by them respectively. In the year 1975 the plaintiff's son got married and when the plaintiff wanted to have his son's family separately, the defendant gave his portion to the plaintiff's son as a temporary relief and consequently the case of the plaintiff that he had purchased the house on the northern side of the suit property was false. Ever since 1955 the defendant claimed to have lived in the suit property though the mess was common and only from 1969, the defendant was having a separate mess and the defendant, therefore, disputed the theory of permissive occupation and possession of the suit property by him.

(3.) . Learned first appellate Judge, though had every right even to reappreciate the materials on record and to draw conclusions different from the one arrived at by the learned trial Judge, such appreciation of evidence by the learned first appellate Judge must be in conformity with the requirements of law and cannot be arbitrary or be made in an unreasonable manner. The appreciation of the material by a judicial forum should be in a judicious manner and an objective process of reasoning and cannot be said to be a mere subjective one, totally immune from the scrutiny of an appellate court be it the second appellate court. Learned first Appellate Judge, so far as the case on hand is concerned, has not only misapplied the relevant and governing legal principles of law to be kept in view in a matter of adjudication of the nature in question, but also misdirected himself in overlooking and omitting to give due credence to concrete materials merely on the basis of the oral evidence of D. W. 2 which lacked any precision or particulars or carry any conviction or support of any documentary evidence which as pointed out by the trial, Judge did not support the version of the defendant. Wherever there is documentary evidence as also oral evidence, the importance of documentary evidence cannot be belittled merely on the assertion of a witness in the box tendering oral evidence unless such evidence has some support or corroboration of some documentary evidence to give such oral evidence the credibility of acceptance. In this case the oral evidence on record on the said of the defendant does not have such credibility of acceptance and the conclusions arrived at by the learned Trial Judge are found to be well merited and well reasoned than the findings recorded by the First Appellate Judge, which as pointed out earlier, are not supported by legally acceptable materials, considering the matter in contrast to the one recorded by the learned Trial judge. Consequently, the judgment and decree of the first appellate Judge is hereby set aside, the second appeal is allowed and the judgment and decree of the learned Trial Judge is restored. There shall be no order as to costs.