Madras High Court
D.Thirumurugan vs D.Devarajan on 22 April, 2021
S.A.No.396 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
S.A.No.396 of 2021
&
C.M.P.No.7488 of 2021
1.D.Thirumurugan
2. D.Saravanamyil ... Appellants
Vs.
1. D.Devarajan
2. G.Yogambigai
3. G.Thani @ Thanikachalam
4. G.Chandrasekaran ... Respondents
Second Appeal filed under Section 100 of the Code of Civil Procedure,
1908 against the judgment and decree dated 31.07.2014 made in O.S.No.210 of
2010 on the file of the learned First Additional District Munsif Court,Bhavani
confirming the judgment and decree dated 09.10.2020 made in A.S.No.68 of 2014
on the file of the learned Sub Court, Bhavani.
For Appellant : Mr.N.Manokaran
JUDGMENT
Litigation which has lead to captioned second appeal commenced more than
one decade ago, to be precise on 01.07.2010 when a plaint was presented in the
learned 'First Additional District Munsif Court, Bhavani' (hereinafter 'trial Court'
for the sake of brevity) by one D.Devarajan and three others {taken on file as
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S.A.No.396 of 2021
O.S.No.210 of 2010 by trial Court} inter alia with a prayer for permanent
injunction restraining/seeking one D.Thirumurugan and his brother
D.Saravanamyil from interfering with peaceful possession and enjoyment of a
common pathway.
2. To appreciate this judgment and order, this Court deems it appropriate to
scan and reproduce the sketch placed before this Court as part of case file:
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S.A.No.396 of 2021
3. The striped portion in the sketch on the northern side is plaintiffs'
property and the property on the southern side is defendants' property. The
pathway running east to west in between these two properties is the subject matter
of litigation and therefore, the same shall be referred to as 'suit pathway' for the
sake of convenience. This Court is informed that suit pathway is 1.5 meters wide
and it is 16 meters long i.e., 16 meters ease to west. This Court is also informed
that the plaintiffs property is comprised in S.Nos.601/8, 601/9 and defendants
property is comprised in S.Nos.601/12, 601/14 and the suit pathway is situate in
S.No.601/10. To be noted, all survey numbers are in Olgadam Village, Bhavani
Talk within the sub-registration District of Anthiyur and Erode Registration
District. After full contest, the suit was decreed by the trial Court in and by
judgment and decree dated 31.07.2014. The defendants carried it in appeal by way
of a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908'
('CPC' for the sake of brevity) vide A.S.No.68 of 2014 on the file of learned 'Sub-
judge's Court, Bhavani' (hereinafter 'first Appellate Court' for convenience). First
Appellate Court also dismissed the appeal suit in and by judgment and decree
dated 09.10.2020. It was made after full contest. In other words, first Appellate
Court confirmed the judgment and decree of the trial Court. As against these two
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S.A.No.396 of 2021
concurrent judgments/decrees, two defendants have come before this court by way
of captioned second appeal, which is obviously under Section 100 CPC.
4. Notwithstanding very many grounds/questions, raised / proposed in the
memorandum of grounds of second appeal, the arguments of Mr.N.Manokaran,
learned counsel for appellants are crisp and a summation of the same is as follows:
'a) The defendants' title is traceable to a sale deed dated
14.07.1950 (Ex.B1) and a partition deed dated 25.03.1971 (Ex.B2)
followed by defendants' sale deed dated 24.05.2010 (Ex.B3), but
trial Court and first Appellate Court had decreed the suit by placing
reliance on Revenue documents (Ex.A5 and Ex.A6) which are field
map, sketch and Natham Revenue record respectively;
b) Plaintiffs have not specifically pleaded any right of
easement or any documentary right. The defendants may or may not
have clinchingly demonstrated its case, but the burden of proof is on
the plaintiffs.
5. This Court now proceeds to examine the aforementioned submissions. A
careful perusal of the judgments of trial Court and first Appellate Court
demonstrate that suit pathway is situate in Government poramboke land. Learned
counsel for appellants submits that this is an incorrect classification and it is
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S.A.No.396 of 2021
actually 'occupied natham'. Learned counsel submits that the powers of the Civil
Court is plenary and it can correct these errors.
6. A careful perusal of the judgments of the Courts below bring to light that
the suit pathway and adjacent properties originally belonged to one Chinnathambi
Chettiar, who purchased the same vide Ex.B1 sale deed dated 14.07.1950. The
said Chinnathambi Chettiar had five sons who partitioned the properties amongst
themselves vide Ex.B2 partition deed dated 25.03.1971, the defendants are two
sons of one of the five sons of Chinnathambi Chettiar (defendants are sons of
D.C.Damodaran, fourth son of Chinnathambi Chettiar). Plaintiffs repurchased all
adjacent properties from defendant's first cousin, who are children of other sons of
Chinnathambi Chettiar. What is of relevance is, the Village Administrative
Officer of Olgadam village, which is the village in which the suit property is
situate, was examined as PW2 and his deposition is clinching. It has not been
derailed or unsettled in cross-examination. It is to be noted that from his
deposition and deposition of DW1, it emerges clearly that entire Olagadam village
is situate in a particular survey number, these lands are natham and patta was
given to people residing therein and that the suit pathway is Government
Poramboke. The finding returned by trial Court in this regard is articulated in
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S.A.No.396 of 2021
paragraph 14, which reads as follows:
'14. vdnt nkw;go th/rh/2 gp/rh/1 rhl;rpaj;jpy;
,Ue;Jk;, ePjpkd;w Mizah; mwpf;ifapy; ,Ue;Jk;
jhth jlk; 1950tJ tUlj;jpy; ,Ue;J bry;fpwJ
vd;Wk;. Jhth jlj;jpid hP/r/vz; 601-10d; tHpahf
bry;Yk; 601-12 kw;Wk; 601-13 chpikahsh;fs; brd;W
tUfpwhh;fs; vd;W ,e;ePjpkd;wk; Kot[ bra;fpwJ/
th/rh/2 rhl;rpaj;jpd;go xyflk; fpuhkk; KGtJk; 97-
2y; jhd; cs;sJ/ ,it midj;Jk; ej;jk;
bghJthf ej;jk; brhj;Jf;fs; mjpy;
FoapUg;gth;fSf;F gl;lh tH';fg;gLk;/ jhth brhj;J
muRg; g[wk;nghf;F vd;gJ cz;ik/ muR g[wk;nghf;fpy;
FoapUg;gpy;yhjth;fSf;F nkw;go brd;id cau;ePjpkd;w
tHf;fpd; jPh;g;gpd;go murh';fk; assignment tH';Fk; jhth
brhj;jhdJ rh;ff
; hu; g[wk;nghf;F vd;W kl;Lk;
,y;yhky; mjw;Fk; nkyhf ghij vd;W
Fwpg;gplg;gl;Ls;sJ/ bghJthf fpuhk ej;jk; brhj;jpy;
gl;lh tH';Fgth;fSf;F me;j gl;lhtpy; ghij VnjDk;
me;j brhj;Jf;fis Rw;wpnah my;yJ me;j
brhj;jpnyh ,Ue;jhy; mjw;F ghjpg;g[ VnjDk; me;j
brhj;Jf;fis Rw;wpnah my;yJ me;j brhj;jpnyh
,Ue;jhy; mjw;F ghjpg;g[ Vw;glhky; me;j gl;lhtpid
cgnahfg;gLj;jntz;Lk; vd;w tpjpKiwfspd; fPHj
; hd;
gl;lh tH';fg;gLk;/;*
(Underlining and double underlining
made by this Court to supply emphasis
and for ease of reference.)
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S.A.No.396 of 2021
7. Therefore, the arguments of plenary powers of Civil Court pales into
insignificance. There is nothing to demonstrate that aforementioned factual
findings returned by the trial court and confirmed by the first Appellate Court
warranting interference much less interference in a legal drill under Section 100
CPC.
8. This takes us to the next argument of pleadings and burden of proof qua
plaintiffs. A careful perusal of the plaint brings to light that there are pleadings
with clarity and specificity by the plaintiffs and particularly in paragraphs 8 and 9
of the plaint, which read as follows:
'8. The plaintiffs submit that the plaintiffs and their ancestors
have been maintaining, repairing and white washing their southern
side ease west wall by using the suit common pathway apart from the
light and air being enjoyed through the windows situate on the
southern side east west wall of the plaintiffs houses.
9. The suit common path way has been specifically recited in
the family partition of the plaintiffs and their fore fathers as early as
15.09.1961. So also in the natham resurvey proceedings, the suit
common pathway has been specifically demarcated in R.S.No.601/10
in the year 1991, after due enquiry.'
9. Therefore, this argument of lack of pleading on the part of the plaintiff,
in the considered view of this Court is a non-starter. This Court reminds itself of
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S.A.No.396 of 2021
the Hero Vinoth principle [Hero Vinoth (Minor) Vs. Seshammal reported in
(2006) 5 SCC 545], which talks about exceptions where concurrent factual
findings of Court below can be interfered with in a legal drill under Section 100
CPC. Relevant paragraph in Hero Vinoth is paragraph 24 and the same reads as
follows:
'24. The principles relating to Section 100 CPC relevant for this case
may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves
a substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision
of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents,
and, involves a debatable legal issue. A substantial question
of law will also arise in a contrary situation, where the legal
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S.A.No.396 of 2021
position is clear, either on account of express provisions of
law or binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to such legal
principle. In the second type of cases, the substantial question
of law arises not because the law is still debatable, but
because the decision rendered on a material question,
violates the settled position of law.
(iii) The general rule is that High Court will not interfere
with the concurrent findings of the courts below. But it is not
an absolute rule. Some of the well-recognised exceptions are
where (i) the courts below have ignored material evidence or
acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden
of proof. When we refer to “decision based on no evidence”,
it not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the evidence,
taken as a whole, is not reasonably capable of supporting the
finding. '
10. Be that as it may, this Court also reminds itself of the Kanailal and
Kirpa Ram principles being principles laid down by Hon'ble Supreme Court in
Kanailal and Others Vs. Ram Chandra Singh and Others reported in (2018) 13
SCC 715 and Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020
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S.A.No.396 of 2021
SCC Online SC 935. Kanailal principle is to the effect that the principles of Order
XLI Rule 31 CPC will stand telescoped into a legal drill under Section 100 CPC
also and Kirpa Ram principle is to the effect that a second appeal can be
dismissed at the admission stage without formulation of a substantial question of
law, if none arises. On a conjoint and combined reading of these two principles,
this Court deems it appropriate to set out that points that arise for consideration in
the case on hand are
a) Whether the courts below have decreed the suit solely on the
basis of revenue records?;
b) Whether there is lack of pleadings on the part of plaintiff?:;
and
c) Whether any substantial question of law arises in the
captioned second appeal?
11. Points for consideration 1 and 2 have already been discussed and
dispositive reasoning have been set out supra. From the dispositive reasoning the
two points for consideration have already been answered against the appellants i.e.,
points for consideration 1 and 2. With regard to the third point for consideration,
the expression 'substantial question of law' occurring in Section 100 CPC has not
been defined in CPC, but the same has been elucidatively explained in a long line
of authorities starting from Rimmalapudi Subba Rao's case [Rimmalapudi
Subba Rao Vs. Noony Veeraju And Others reported in AIR 1959 Madras 969] to
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S.A.No.396 of 2021
Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs
reported in (2001) 3 SCC 179]. It will suffice to extract and reproduce paragraph
12 of Santosh Hazari case and the same reads as follows:
' 12. The phrase “substantial question of law”, as occurring
in the amended Section 100 is not defined in the Code. The word
substantial, as qualifying “question of law”, means — of having
substance, essential, real, of sound worth, important or considerable.
It is to be understood as something in contradistinction with —
technical, of no substance or consequence, or academic merely.
However, it is clear that the legislature has chosen not to qualify the
scope of “substantial question of law” by suffixing the words “of
general importance” as has been done in many other provisions such
as Section 109 of the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a second appeal shall be
heard need not necessarily be a substantial question of law of
general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC
172 : 55 IA 235] , the phrase “substantial question of law” as it was
employed in the last clause of the then existing Section 110 CPC
(since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial question
of law which was involved in the case as between the parties. In Sir
Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co.
Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution
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S.A.No.396 of 2021
Bench expressed agreement with the following view taken by a Full
Bench of the Madras High Court in Rimmalapudi Subba
Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :
“[W]hen a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand if
the question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the particular
facts of the case it would not be a substantial question of
law.”and laid down the following test as proper test, for
determining whether a question of law raised in the case is
substantial:
“The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties
and if so whether it is either an open question in the sense
that it is not finally settled by this Court or by the Privy
Council or by the Federal Court or is not free from difficulty
or calls for discussion of alternative views. If the question is
settled by the highest court or the general principles to be
applied in determining the question are well settled and
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S.A.No.396 of 2021
there is a mere question of applying those principles or that
the plea raised is palpably absurd the question would not be
a substantial question of law.”
12. If the principle governing elucidation of the expression 'substantial
question of law' occurring in Section 100 CPC are applied to the case on hand, it
comes to light that there is nothing debatable and no point that is res integra arises
in the case on hand or no issue of settled principles being disregarded arises in the
case on hand. Suffice to say that no substantial question of law much less, such a
question which would impact the decision or rights of the parties if decided one
way or the other arises in the case on hand.
13. Therefore, applying the Kirpa Ram principle, this Court deems it
appropriate to dismiss captioned second appeal at the admission stage holding that
no substantial question of law arises. Consequently, C.M.P. No.7488 of 2021 is
also dismissed. Considering the nature of the case, the trajectory the matter has
taken and the arguments projected before this Court, there shall be no order as to
costs.
22.04.2021
Speaking order: Yes/No
Index: Yes/No
gpa
To
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S.A.No.396 of 2021
1. The First Additional District Munsif Court
Bhavani
2. The Sub Court,
Bhavani.
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S.A.No.396 of 2021
M.SUNDAR.J.,
gpa
S.A.No.396 of 2021 &
C.M.P.No.7488 of 2021
22.04.2021
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