Madras High Court

Vardhan vs Sekar on 23 April, 2021

                                                                                S.A.No.388 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 23.04.2021
                                                      Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                               S.A.No.388 of 2021
                                                      and
                                              C.M.P.No.7437 of 2021
                                                       in
                                               S.A.No.388 of 2021

                  Vardhan
                  S/o.Ayyanar                                                  .. Appellant


                                                         Vs.
                  Sekar
                  S/o.Kali                                                     .. Respondent


                            Second Appeal under Section 100 of CPC to set aside the judgement

                  and decree dated 07.10.2020 passed in A.S.No.29 of 2018 on the file of the

                  Subordinate Judge at Madurantakam confirming the judgment and decree

                  dated 23.07.2018 passed in O.S.No.104 of 2012 on the file the District

                  Munsif Court at Madurantakam.



                            For Appellant         :     Mr.A.Balasingh Ramanujam
                                                      ----


                 1/16
https://www.mhc.tn.gov.in/judis/
                                                                                    S.A.No.388 of 2021




                                                 JUDGMENT

This judgment and order will govern the captioned main Second

Appeal and captioned CMP.

2. The lis which has led to captioned Second Appeal commenced

almost a decade ago, to be precise on 09.04.2012 when one Sekar (S/o. Kali)

presented a plaint in the 'District Munsif's Court at Madurantakam'

[hereinafter 'trial Court' for the sake of convenience and clarity]. This plaint

was taken on file as O.S.No.104 of 2012. Sekar is the sole respondent in

captioned Second Appeal and the suit was laid against one Varadhan

(S/o.Ayyanar), who is the lone appellant in the captioned Second Appeal.

The suit was laid with a prayer for bare injunction qua immovable property

in the form of land admeasuring 2410 sq.feet (224 sq.meter or 5.5 cents) or

thereabouts comprised in S.No.135/9 (Old S.No.77), Thotachery Village,

Choonambedu Firka, Cheyyur Taluk, Kancheepuram District with a thatched

hut thereon which shall hereinafter be referred to as 'suit property'.

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

3. The appellant before this Court, as defendant in trial Court took a

plea that the plaintiff is not the sole, absolute and exclusive owner of suit

property, it is not correct to say that the plaintiff's vendor Arjunan was in

possession of suit property for over 30 years and it was a further plea of

defendant that in 1983 itself patta was granted in respect of suit property in

favour of one Perumal who is none other than the plaintiff's vendor Arjunan's

brother. In sum and substance, defendant pleaded that the plaintiff has no

right over the suit property and that the defendant is taking necessary steps to

challenge the same. This is articulated in Paragraph No.3 of written

statement.

4. After full contest, trial Court decreed the suit vide judgment and

decree dated 23.07.2018. To be noted, full contest includes examination of

three witnesses each on the side of plaintiff and defendant, 9 exhibits on the

side of plaintiff were marked namely, Ex.A1 to Ex.A9, 2 exhibits on the side

of defendant were marked namely, Ex.B1 & Ex.B2 and 2 Court exhibits were

marked being Ex.C1 & Ex.C2 i.e., Advocate Commissioner's report and

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

rough plan respectively.

5. Defendant carried the matter by way of a regular First Appeal under

Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity] vide

A.S.No.29 of 2018 to the 'Subordinate Judge's Court at Madurantakam'

[hereinafter 'First Appellate Court' for the sake of convenience and clarity].

After full contest, the First Appellate Court dismissed the appeal in and by

judgment and decree dated 07.10.2020 confirming the judgment and decree

granted by the trial Court.

6. Mr.A.Balasingh Ramanujam, learned counsel for appellant,

notwithstanding very many grounds raised in memorandum of grounds of

appeal and notwithstanding five questions set out in the memorandum of

grounds of appeal which according to appellant are substantial questions of

law, made focussed submissions on two points. The summation of these two

points are as follows:

(a) When title of plaintiff is under a cloud, the trial

Court and the First Appellate Court ought not to have granted

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

injunction qua possession of the suit property.

(b) The report of Advocate Commissioner is in favour of

defendant and therefore the plaintiff should have been non-

suited.

7. This Court carefully considered the submissions of learned counsel

for appellant. In a suit for bare injunction, the pivotal point is whether the

plaintiff was in possession of suit property on the date of filing of the suit

and in this case 09.04.2012 is the date of presentation of plaint which has

already been mentioned supra. Both the Courts below have framed a specific

issue in this regard and have answered the same in favour of plaintiff by

appreciating all the documentary and oral evidence before it. With regard to

trial Court, as many as three issues are framed and the same are captured in

Paragraph No.6 of the judgement of trial Court which reads as follows:

'1. Whether the plaintiff is in possession and enjoyment of the suit property?

2. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?

3. To what other relief is the plaintiff entitled for?'

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

8. From a perusal of the above three issues, it comes to light that the

pivotal issue is issue No.1. This issue No.1 has been neatly answered in

favour of plaintiff and most relevant portions of judgment of the trial Court

in this regard read as follows:

'............On perusal of Exhibit A-5, the patta No.42, stands in the name of one Sundara Moorthy, whereas the recitals of Exhibit B- 1 stated that the patta No.44, stands in the name of one Chellamuthu and after the said Chellamuthu, the same stands in the name of Perumal bearing Patta No.42. On perusal of Exhibit A-7, the patta No.44 stands in the name of one Chellamuthu S/o.Kumuzhiya Gounder. The said patta No.44, at present stands in the name of Varadhan, the Defendant herein through RPT No.1454/2013. The defendant herein set out the defence that the patta No.42 stands in the name of Perumal. To prove the same the Defendant has not chosen to file any documents. On the other hand the plaintiff herein had filed the Exhibit A-3, the patta stands in the name of Arjunan, the plaintiff's vendor. Admittedly, the patta is not a title document, the same is given for assessing the payment of the tax and also for identifying the possession and enjoyment of the property. The plaintiff's vendor during the year 1983 itself obtained the gramanatham patta in his name and thereby he is in the possession and enjoyment of the same. After which he sold the property to the plaintiff for valid sale consideration. Through Exhibits A-2, A-3, A-

5, A-6 and A-7, the plaintiff herein proved his absolute possession

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

and enjoyment over the suit property. In view of the above, this Court comes to the conclusion that the plaintiff is in the absolute possession and enjoyment of the suit property. Thereby this issue is answered in favour of the plaintiff.' (underlining now made in this order for the purpose of supplying emphasis, highlighting and for ease of reference)

9. Likewise, the First Appellate Court, adhering to Order XLI Rule 31

CPC has framed three points for determination and the same are captured in

Paragraph No.11 of judgement of First Appellate Court which reads as

follows:

'11. Points for Consideration:

Heard both side arguments. This Appellate Court framed the following points for consideration.

(i) Whether the trial Court's finding that the plaintiff has proved the possession and enjoyment of the suit property is proper?

(ii) Whether the finding of the trial Court's that the respondent/plaintiff is entitled to the relief of permanent injunction is correct?

(iii) Whether the appeal is to be allowed?'

10. From a perusal of paragraph No.11 of judgement of First Appellate

Court it becomes clear that the first point for determination is most relevant.

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

This point has been answered by the First Appellate Court and most relevant

paragraphs are sub-paragraph (m) and (n) of paragraph No.13 of judgement

of First Appellate Court which read as follows:

'13(m) Further, the encumbrance certificate Ex.A-9 have disclosed the sale transaction of plaintiff, and Ex.B-1 disclosed that the defendant also got sale deed in his name for the suit properties, therefore, the plaintiff has proved that the defendant has attempted to interfere with the peaceful possession of the suit property by the way of Ex.B-1, hence, if the injunction is not granted to the plaintiff, irreparable loss will be caused to the plaintiff.

13(n) It is to be noted that the trial Court has discussed the above facts elaborately and came to the conclusion that the plaintiff has proved his case and the defendant has failed to resist the case successfully. As discussed above, this Court is of the opinion that the decision of the trial Court found with reason, hence, this Court is not inclined to interfere with the decision of the trial Court.

Accordingly, answered to the Point No.1 & 2.'

11. One other fact though not argued but noticed by this Court is, in

the First Appellate Court, the appellant has taken out an application inter-

alia under Order XLI Rule 27 of CPC for additional evidence. This was

taken on file as I.A.No.1 of 2019. The First Appellate Court has respectfully

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

followed the law laid down by Hon'ble Supreme Court in Sivaji Rao case

being [Shivajirao Nilangekar Patil Vs. Mahesh Madhav Gosavi [AIR 1987

SC 294], wherein it was held that with regard to additional evidence under

Order XLI Rule 27 CPC, a person making such plea for additional evidence

at the appellate stage should be able to establish that the additional evidence

could not be adduced inspite of best efforts at the first instance and more

importantly, it was held that such additional evidence must be relevant for

the determination of issue. The First Appellate Court, has considered

I.A.No.1 of 2019 and has come to the conclusion that the evidence sought to

be brought as additional evidence is not relevant for deciding the issue

between the parties and is negatived this under Order XLI Rule 27 and the

same has attained finality. A perusal of the list of documents sought to be

brought in brings to light that the First Appellate Court is certainly not in

error in negativing the order XLI Rule 27 plea as they are far from the crux

of the lis and certainly not clinching.

12. This Court reminds itself of Kanailal principle laid down by

Hon'ble Supreme Court in Kanailal and Others Vs. Ram Chandra Singh

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

and Others reported in (2018) 13 SCC 715 and this Court deems it

appropriate to read the same in conjunction with Kirpa Ram principle laid

down by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and

others reported in 2020 SCC Online SC 935. To be noted, Kanailal

principle is to the effect that principles underlying Order XLI Rule 31 CPC

stand telescoped into a Section 100 CPC legal drill and Kirpa Ram principle

is to the effect that a Second Appeal Court can dismiss a second appeal at the

admission stage itself without formulating a substantial question of law if no

substantial question of law arises. On a conjoint and combined reading of

Kanailal and Kirpa Ram principles, this Court deems it appropriate to set

out two points for determination in the captioned Second Appeal and the

same are as follows:

(1) Whether there is any error in the concurrent findings

returned by the two Courts below regarding the factum of

plaintiff being in possession of suit property?

(2) Whether any substantial question of law arises on

facts, findings and trajectory the matter has taken?

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

13. This Court reminds itself about what the expression 'substantial

question of law' occurring in Section 100 CPC means. This expression

'substantial question of law' occurring in Section 100 CPC has not been

defined in CPC, but has been explained in a long line of authorities

commencing from Rimmalapudi Subba Rao case [Rimmalapudi Subba

Rao Vs. Noony Veeraju and others reported in AIR 1951 Mad 969 (FB)] to

Santosh Hazari's case [Santosh Hazari Vs. Purushottam Tiwari reported in

(2001) 3 SCC 179]. This Rimmalapudi principle has been subsequently

approved by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal

V.Mehta Vs. Century Spinning and Manufacturing Co. Ltd. reported in

AIR 1962 SC 1314. Thereafter, in Santosh Hazari case being Santosh

Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179, the view

taken in Chunilal Mehta's case, affirming the view taken by Full Bench of

this, was reiterated. Relevant paragraphs of Chunilal Mehta's case and

Santosh Hazari's case are paragraph Nos.6 & 12 respectively, which read as

follows:

'Paragraph No.6 of Chunilal Mehta's case:

6. We are in general agreement with the view taken by the

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. 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 if 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 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.'

Paragraph No.12 of Santosh Hazari's case:

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”

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

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 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

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

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 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.”'

14. In the light of the narrative thus far, if the expression 'substantial

question of law' occurring in Section 100 of CPC is applied to the case on

hand, this Court finds that no substantial question of law arises in the case on

hand as nothing debatable, res integra or nothing touching upon disregarding

of settled position of law arises in instant case. It is also clear from the

https://www.mhc.tn.gov.in/judis/ S.A.No.388 of 2021

narrative thus far, discussion and dispositive reasoning that there is nothing

demonstrable qua errors regarding factual findings about possession much

less serious errors leading to substantial question of law warranting

interference in concurrent factual findings returned by the Courts below that

the plaintiff is not in possession of the suit property.