Madras High Court

Karthikeyan vs Sundaram on 28 April, 2021

                                                                       S.A.No.415 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 28.04.2021

                                                      CORAM

                                      THE HON'BLE MR. JUSTICE M.SUNDAR

                                                S.A.No.415 of 2021


                     1. Karthikeyan
                     2. Nandhini
                     Indirani (died)
                     3. Gowry
                     4. Thilagavathy
                     Arunachalam (died)
                     5. Kistan
                     6. Vasantha
                     7. Manjula
                     8. Shanthi
                     9. Inbavalli
                     10. Balaji
                                                                     ... Appellants

                                                Vs.
                     Jayaraman (Died)
                     1. Sundaram
                     2,. Meganathan
                     3.Pattammal
                     Kannammal (Died)
                     4.Datchayani
                     5. Suriyakala
                     6. G.Pakkirinathan
                     7. Srinivasan
                     8. Saraswathi
                     9.J.Poongothai
                     10. Murugesan                                   ... Respondents

                     1/18


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                                                                                   S.A.No.415 of 2021


                            Second Appeal filed under Section 100 of the Code of Civil Procedure,
                     1908 against the judgment and decree dated 27.04.2019 passed in A.S.No.96 of
                     2012 on the file of the Court of Additional Subordinate Judge, Kancheepuram
                     District in confirming the judgement and decree dated 31.01.2012 passed in
                     O.S.No.224 of 2009 on the file of the District Munsif-cum-Judicial Magistrate
                     Court, Sriperumbudur.

                                           For Appellants : Mr.V.Lakshmi Narayanan

                                                        JUDGMENT

'Vintage' nay 'gravitating towards ancient' would be more appropriate

to describe the lis which has lead to the captioned second appeal under

Section 100 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of

brevity) as a plaint was presented by three sons and one daughter of one

Kuppusamy Mudaliar, nearly three decades ago, to be precise on 10.06.1991

on the file of District Munsif Court, Poonamallee. This plaint was taken on

file as O.S.No.1089 of 1991 and later transferred to 'District Munsif-cum-

Judicial Magistrate Court, Sriperumbudur' ('trial Court' for the sake of

convenience) and was assigned the number O.S.No.224 of 2009. The suit

property is agricultural land ad-measuring 56 cents or thereabouts

comprised in S.No.218/2 at 53 Madanandapuram Village, Porur Firka,

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Sriperumbudur Taluk. This Court is informed that this is in Kancheepuram

District.

2. Owing to the nature of a legal drill under Section 100 CPC, short

facts shorn of elaboration or in other words factual matrix in a nutshell

containing essential facts imperative for appreciating this judgment will

suffice.

3. Short facts are that suit property originally belonged to Murugappa

Mudaliar, who had three children, namely Ganesa Mudaliar, Kanni

Mudaliar (sons) and Chinnammal (daughter); that Murugappa Mudaliar at

the time of marriage of Chinnammal to his sister's son one Kuppusamy

Mudaliar gifted/settled suit property to Chinnammal as Kuppusamy

Mudaliar did not have ancestral properties; that this settlement was in and

by a registered deed of settlement dated 12.2.1943 (Ex.A1); that

Chinnammal died some time in 1957 leaving behind three sons and one

daughter (four plaintiffs in the trial Court); that according to the plaintiffs

suit property was entrusted sometime in 1985 to one Chinnammal, their

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paternal aunt (6th defendant) as the plaintiffs were unable to cultivate the

suit property owing to their pre-occupation and employment elsewhere; that

their paternal aunt Chinnammal sometime in 1989 evaded to surrender and

give back the suit property leading to presentation of plaint (as mentioned

supra) in the trial Court in 1991; that in the plaint, the children of Ganesa

Mudaliar (son of Murugappa Mudaliar) were arrayed as Defendants 1 to 6

and children of Murugappa Mudaliar's another son Kanni Mudaliar were

arrayed as Defendants 7 to 11; that burden of the song qua 6 th defendant is

that the name of their grandfather is not Murugesa Mudaliar, but

Murugappa Mudaliar, that even though there was a settlement deed

Chinnammal (senior) was never put in possession possession of suit

property; to be noted, plaintiffs' mother and their paternal aunt, daughter of

Ganesa Mudaliar have the same name i.e., Chinnammal. Therefore,

plaintiffs' mother shall be referred to as Chinnammal (senior) and 6th

defendant shall be referred to as Chinnammal (junior); it is the further case

of Chinnammal (junior) that suit property continued to be in possession of

Ganesa Mudaliar and his son Appasami after whose demise Kanni Mudaliar

was in possession of the suit property.

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4. On aforementioned rival pleadings, trial Court framed issues,

oral/documentary evidence was let in. Trial Court in and by judgment and

decree dated 31.01.2012 decreed the suit for declaration of title, recovery of

possession and ordered separate proceedings under Order XX Rule 12 CPC

for mesne profits; that the matter was carried in appeal by the defendants by

way of a regular first appeal under Section 96 of 'The Code of Civil

Procedure, 1908' ('CPC' for the sake of brevity) on the file of 'The Principal

Subordinate Judge's Court, Kancheepuram' ('first Appellate Court' for the

sake of brevity); that the first Appellate Court after full contest dismissed

the first appeal confirming the judgment and decree of the trial Court; that

the judgment and decree of the first Appellate Court is dated 27.04.2019;

that defendants in the trial Court have now come up with captioned second

appeal against aforementioned two concurrent judgments / decrees against

them in this three decade old lis with their first cousins.

5. Mr.A.Prakash, learned counsel on record for appellants

notwithstanding very many grounds raised in the memorandum of grounds

of second appeal and four questions proposed as substantial questions of

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law, submitted that the defendants had perfected title by adverse possession,

the plaintiffs have not been able to establish that the settlement was acted

upon, they have been in possession of the suit property till 1985 and

therefore, decreeing of the suit by the trial Court and confirmation of the

same by the first Appellate Court are fraught with infirmities warranting

interference under section 100 of CPC.

6. This Court carefully perused the judgments of two Court below.

Trial Court has looked into Chitta and Adangal, which have been marked as

Exs.A4 and A5. Trial Court has noticed that these documents stand in the

name of Chinnammal (senior), plaintiffs' mother. They pertain to fasli years

1394, 1376 to 1385, Chinnammal senior has been assigned Patta Number

67. Trial Court has also noticed that fasli year 1934 translates to 1985 in the

English calender. Trial Court has also noticed that the first plaintiff, who

examined himself as PW1, categorically deposed in his evidence that, from

the date of Ex.A1 (to be noted, settlement deed dated 12.02.1943 in favour

of Chinnammal (senior) was marked as Ex.A1), the suit property was

enjoyed by Chinnammal (senior) till her life time and after her death in

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1957, the plaintiffs enjoyed the same. Trial Court has also appreciated the

further deposition of PW1 that the plaintiffs were residing away from the

suit property due to their avocation and therefore, they handed over the

property to Chinnammal (junior)[6th defendant] and that this deposition has

not been derailed or has not been dislodged in any manner. The trial Court

has also adverted to and appreciated the evidence of the Revenue official,

i.e., jurisdictional Deputy Tahsildar, who was examined as DW2, with

regard to the Revenue records. Trial Court after such appreciation of oral

and documentary evidence before it finally returned a factual finding which

reads as follows:

'......Thus the evidence of p.w.1 coupled with the evidence of DW2. Ex.A.1, Ex.A.4, Ex.A.5, Ex.X1 and Ex.X3 clinchingly prove the fact that the plaintiffs and their predecessors in title alone were in possession and enjoyment of the suit property till the year 1985 in their own right, title and interest over the same.'

7. With regard to the plea of adverse possession, trial Court has

answered the same in the following manner:

'In view of the above discussions this court has no hesitation to hold that the evidence of p.w.1 coupled with Ex.A.1 to A.5, Ex.X1 and Ex.4 reveals the title and possession

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of the plaintiffs and their mother Chinnammal from 1943 to 1985, that a within six years prior to the institution of the suit whereas the defendants have miserably failed to establish their title in respect of the suit property and their possession for more than 12 years prior to the filing of the suit and as such the sixth defendant can be termed as only a permissible occupier.

Consequently, this Court hereby decides that the plaintiffs are entitled to the relief of declaration an recovery of possession in respect of the suit property as prayed for and thus issue numbers 1 and 2 are answered accordingly. '

8. Law is well settled that regarding adverse possession, person

pleading adverse possession should be able to demonstrate that his/her

possession is hostile to that of the real owner, it was continuous and

uninterrupted. The manner in which the person pleading adverse possession

entered upon the property is also relevant. It is to be noted that a person

pleading adverse possession should accept the title of the adversary.

Therefore, this is a case where the title is accepted. Be that as it may this

Court finds that aforementioned trial Court findings to be in order and there

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is nothing demonstrable to show any infirmity in the judgment of the trial

Court much less an infirmity leading to any substantial question of law.

9. This Court examined the judgment of the first Appellate Court

which had framed four points for consideration and answered the same at

one go.

10. First Appellate Court, which is also a Court of fact and a last

Court of fact, has also dealt with the name confusion that was brought up

qua Chinnammal (senior) and Chinnammal (junior). This is articulated in

paragraph 10 of the judgment of first Appellate Court, which reads as

follows:

'10. It is the case of the defendants that Chinnammal never took possession under the settlement deed. The settlement deed Ex.A1 reveals that after marriage Chinnammal was in possession of the property and cultivating the property and only after it settlement deed has been executed. As per the defendant, the property is in enjoyment of Ganessa Mudaliar and then Appasamy Mudaliar who is the son of Ganesa Mudaliar and after the death of Appasamy Mudaliar the property is in possession of the son of Appasamy

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Mudaliar, namely Karthik. The defendants in order to prove possession of the suit property has produced the chitta standing in the name of 6th defendant for 1401 fasli pertaining to the year 1991 which is marked as Ex.B1. Kist has been paid for patta No.79 as revealed from Ex.B2, Ex.B3, Ex. B4, Admitted possession of the suit property is with the defendants Ex.A.1 reveals that Chinnammal is in possession of the suit property from 1973 but it can be only permissive possession and the settlement deed in favour of Murugappa Mudaliar's daughter Chinnammal reveals that she was given in marriage in the ame village to his sister's son Kuppusamy Mudaliar who did not have ancestral property and in order to maintain her family the suit property was given to her, at the time of marriage itself and she has been cultivating the suit property and she and her legal heirs have to enjoy the property after the death of Murugappa Mudaliar. So the settlement deed has been acted upon as per the recital and this court can only conclude that 6th defendant was in permissive possession. P.W.1 has stated kist receipts were with his grand father and after his death as the property was handed over to his uncle kist receipts are not with him. Patta was not transferred in their name as their uncle was looking after the property. P.w.1 has stated that he has put the defendants in permissive possession and no written documents have been obtained for the same. D.W.1 was not even aware of the settlement deed in favour of Chinnammal through Ex.A.1 and he has not denied the

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permissive possession but he has stated that he is not aware of the same.'

11. This Court finds the above to be in order no infirmity in the

factual findings returned by the Courts below that Chinnammal (junior) was

only in permissive possession of the suit property has been demonstrated.

12. Reverting to the judgment of the trial Court, the judgment of the

trial Court has also appreciated Ex.A1 and has on the basis of evidence

before it noticed that Chinnammal (senior)'s father Murugappa Mudaliar

(grandfather of plaintiffs and defendants) had given her in marriage to his

nephew Kuppusamy Mudaliar and specifically settled the suit property in

favour of Chinnammal (senior) as bridegroom who is none other than his

sister's son was not possessed of properties. This is only a buttressing

factor.

13. The two points for determination in the second appeal on hand

are:

a) Is there any infirmity in the judgments of Courts

below regarding the factual findings that Chinnammal (junior)

(6th defendant) is in permissive possession of suit property? and

b) Whether any substantial question of law arises?

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14. With regard to the first point for determination, this Court has

dealt with the judgments of Courts below inter alia by extracting and

reproducing the relevant portions supra, this Court has also set out supra

that the concurrent factual findings returned by the Courts below do not

warrant any interference in the second appeal and as to why there is no

infirmity in the same.

15. This takes us to the next point for determination i.e., whether any

substantial question of law arises in the case on hand?

16. 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 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], which was rendered by a Full Bench of this Court. This

elucidation in Rimmalapudi Subba Rao was affirmatively referred to by Hon'ble

Constitution Bench of Supreme Court in another celebrated judgment being Sir

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Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and

Manufacturing Co. Ltd., reported in AIR 1962 SC 1314. Relevant

paragraph in Sir Chunilal Mehta's case is paragraph 6 and the same reads

as follows:

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

17. This trajectory has been neatly and nicely captured by Hon' ble Supreme

Court in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari

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(Deceased) by Lrs reported in (2001) 3 SCC 179]. Relevant paragraph in Santosh

Hazari case is paragraph 12 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 Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba

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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 there is a mere question of applying those principles or that the plea raised is

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palpably absurd the question would not be a substantial question of law.”'

18. The above mentioned principles/parameters/determinants is the

obtaining position of law and this Court deems it appropriate not to burden

this judgment with further extracts on what 'substantial question of law' is?

Be that as it may, drawing inspiration from judgment of Hon'ble Supreme

Court in Kondiba Dagadu Kadam vs Savitkibai Sopan Gujar An Dors.

reported in AIR 1999 SC 2213, this Court reminds itself that a right of

appeal as in the case on hand is neither a natural nor an inherent right

attached to the litigation. It is a substantive statutory right and it has to be

regulated in accordance with law in force at the relevant time. The

conditions mentioned in Section 100 must be strictly fulfilled before a

second second appeal can be entertained and Hon'ble Supreme Court has

repeatedly held that no Court can add or enlarge these conditions.

Substantial question of law arising from the case is sine qua non for

entertaining a second appeal under Section 100 CPC and owing to the

narrative thus far, this Court has no hesitation in holding that none arises in