Madras High Court
P.Jayakodi vs V.P.Andamuthu on 29 April, 2021
S.A.No.421 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.04.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
S.A.No.421 of 2021
P.Jayakodi
... Appellant
Vs.
1. V.P.Andamuthu
S/o.Perumal
2. S.Shanmugam
S/o.Sellappa Gounder
... Respondents
Prayer: Second Appeal has been filed under Section 100 of Code of
Civil Procedure, 1908, praying to set aside the Judgment and Decree dated
16.12.2020 made in A.S.No.03 of 2020 on the file of the learned Sub
Court, Perundurai, partly confirming the judgment and decree dated
26.11.2019 made in O.S.No.148 of 2011 on the file of the learned District
Munsif Court, Perundurai by allowing this Second Appeal.
For Appellant : Mr.N.Manokaran
1/18
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S.A.No.421 of 2021
***
2/18
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S.A.No.421 of 2021
JUDGMENT
Lis out of which captioned Second Appeal arises commenced nearly
a decade ago, to be precise on 17.05.2011 when two individuals
(respondents in captioned Second Appeal) presented a plaint in 'District
Munsif's Court, Perundurai' ['trial Court' for brevity]. This plaint was
taken on file as O.S.No.148 of 2011 and in this suit, lone appellant in the
captioned Second Appeal is the sole defendant. Prayer in the suit before
trial Court is for bare injunction (possession) qua suit property
admeasuring 1200 sq.ft or thereabouts (111.50sq.mtrs. or thereabouts). A
perusal of the plaint schedule brings to light that the suit property is vacant
land.
2. From hereon, parties shall be referred to by their respective ranks
in trial Court for the sake of convenience and clarity. Therefore,
respondents in captioned Second Appeal shall be referred to as 'plaintiffs'
and appellant in captioned Second Appeal shall be referred to as
'defendant'.
3. It is the specific case of plaintiffs that suit property was purchased
by them under a registered sale deed dated 09.09.2008, registered as
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S.A.No.421 of 2021
document No.1996/2008 on the file of Sub Registrar's Office, Thingalur. It
is also the specific case of the plaintiffs that they jointly purchased the suit
property, they were put in possession on the date of purchase i.e.,
09.09.2008 and the plaintiffs had also filed the original sale deed dated
09.09.2008, (which came to be marked as Ex.A1 in trial).
4. On being served with suit summons, sole defendant entered
appearance through an advocate, filed a written statement dated 21.09.2011
and completed pleadings. A perusal of the pleadings of sole defendant i.e.,
written statement, more particularly paragraph 7 of the written statement
makes it clear that the defendant does not dispute that the plaintiffs have
purchased suit property under Ex.A1-Sale Deed. The pleadings of the
defendant is that plaintiffs vendor one S.K.Chinnappan had purchased the
suit property nearly 6 ½ months prior to alienation by him, to be precise on
18.02.2008 but the suit property actually belongs to one Sakthivel and it is
in the possession of defendant from 03.04.2002. There was also a pleading
that at the time of purchase by Sakthivel, there was no conversion of suit
property into house site. Be that as it may, central theme of the defendant's
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S.A.No.421 of 2021
pleading is that they are in possession of suit property and that it originally
belonged to one Sakthivel. In the trial Court, second plaintiff
S.Shanmugam examined himself as PW1 and the sole defendant examined
herself as DW1. One N.R.Subramaniam, neighbour deposed as PW2 and
one G.Thiagarajan deposed as DW-2. On behalf of plaintiffs, four exhibits
namely Exs.A1 to A4 were marked and on behalf of defendant, six exhibits
namely Exs.B1 to B6 were marked. However, what is of significance is, in
the course of proceedings before the trial Court, an Advocate
Commissioner was appointed, Advocate Commissioner made local
inspection and filed a report, sketch and surveyor's sketch, which were
marked as Exs.C1, C2 and C3 respectively.
5. Trial Court, on appreciation of Ex.A1 as also Exs.A2, A3 and A4,
which are Patta, Adangal and A-Register respectively, came to the
conclusion that plaintiffs are in possession of suit property and that the
defendant, who is a third party qua suit property, is interfering with the
plaintiffs' possession of the suit property.
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S.A.No.421 of 2021
6. Trial Court has also noticed that a small water tank was built by
the plaintiffs in the suit property and this factum was not denied by the
defendant. In this view of the matter, trial Court disbelieved Ex.B5, which
are water charges receipts and said this would not go to prove that the
defendant has put up a water tank in the suit property. On this basis, trial
Court disbelieved pleadings of the defendant that she is in possession of
the suit property. In the result, the suit was decreed by trial Court by
judgment and decree dated 26.11.2019.
7. Sole defendant carried the matter in appeal by way of a regular
First Appeal under Section 96 of 'The Code of Civil Procedure, 1908'
[hereinafter 'CPC' for brevity] vide A.S.No.3 of 2020 on the file of 'Sub
Judge's Court, Perundurai' ['First Appellate Court' for brevity]. First
Appellate Court, after full contest, modified the decree of trial Court by
holding that there will be an injunction only to the extent of 111.50 sq.mts
[1200 sq.ft], which is blue shaded portion in Ex.C3. Ideally Ex.C3 should
have been appended to the decree of First Appellate Court. However, a
copy of Ex.C3 has been placed before me as part of case file and a colour
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S.A.No.421 of 2021
scanned reproduction of the same is as follows:
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8. Though the decree of trial Court also talks about 1200 sq.ft., it
says 'fhyp ,lk; g[{uht[k;' which means entire vacant land, whereas First
Appellate Court has localized the property for which injunction has been
granted and made it clear that it is the blue shaded portion in Ex.C3.
9. Learned counsel for appellant contended that the Courts below
erred in decreeing the suit when the plaintiffs have not sought declaration
of title. It was also contended that the defendant's exclusive possession has
been overlooked.
10. A perusal of judgment of First Appellate Court reveals that the
First Appellate Court has placed reliance on the Advocate Commissioner's
report, Commissioner's sketch and Surveyor's sketch (Exs.C1 to C3) for
localizing the area for which injunction is granted.
11. In the light of Ex.A1-Sale deed in favour of plaintiffs and in the
light of defendant's not disputing Ex.A1 in the pleadings [paragraph 7 of
written statement], which has been alluded to supra, the first argument that
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S.A.No.421 of 2021
the plaintiffs sought for declaration pales into insignificance. With regard
to the second argument, the suit property is vacant land and therefore the
principle is possession follows title. Though the matter ends there, the
pleading of defendant that she has put up a small water tank has also been
gone into and the same has been disbelieved (inter-alia by appreciating
evidence) by Courts below, which has been alluded to and delineated supra
in this judgment.
12. Reverting to the judgment of First Appellate Court, the approach,
appreciation and findings of First Appellate Court qua Advocate
Commissioner's report, sketch and surveyor's sketch are captured in
paragraphs 22 to 26 thereat, but this Court, for the purpose of avoiding this
judgment being burdened with a extract of all five paragraphs, deems it
appropriate to extract paragraphs 22 and 26 thereat, which read as follows:
'22.ePjpkd;w Mizah; jdJ mwpf;ifapy;.
thjpapd; fhypaplj;jpw;F bry;y bjd;fpHf;fhf jfu
nfl; nghl;L fhzg;gl;lij gpujpthjp rhtp nghl;L
jpwe;J tpl;lhh; vd;Wk;. nkYk; jdJ RthjPdk;
epU:gpf;fgl;Ls;sjhft[k;. nky;KiwaPll
; hsh; / gpujpthjp
jug;gpy; xU thjk; vGg;gg;gl;lJ/ vdnt.
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S.A.No.421 of 2021
ePjpkd;wMizah;. brhj;jpd; ehd;bfy;iy gpur;rid
bjhlh;ghd gpur;ridia tpsf;Ftjw;F kl;Lnk
epakpf;fg;glntz;Lk;/ RthjPdj;ij epU:gpg;gjw;F
ePjpkd;w Mizaiu epakpf;f nfhuKoahJ/ vdnt.
RthjPdk; bjhlh;ghf ePjpkd;w Mizah; mwpf;ifapy;
cs;s nkw;go tptuj;jpd; mog;gilapy; gpujpthjp
jdJ RthjPdj;ij epU:gpj;jjhf fUjKoahJ/
vdnt. nkw;go tptuk; bjhlh;ghf. tprhuiz
ePjpkd;wj;jpd; ghprPyida[k;. jPht
; [k; rhpahdnj vd;W
Kot[ bra;ag;gLfpwJ/
26/ vdnt. nkny tpthpj;jgo. thjpfspd;
fpiuag;gj;jpuj;jpd;go jhthr;brhj;J nkl;Lg[J}h;
fpuhkk; giHa f/r/115/v2. v8 cs;s 1200 rJuo
(111/50 r/kPll
; h); mst[f;F fpiuag;gj;jpuk;
bgwg;gl;oUe;jhYk;. nkw;go nkl;Lg[J}h; fpuhkj;jpy;.
thjpfs; fpiuak; bgw;w fhypaplk; 111/50 r/kPll
; h;
mst[f;F kl;Lnk cs;sJ vd;gjhy;. nkw;go ,lj;ij
bghWj;J kl;Lk; thjpfSf;F chpik K:yj;jpd;
mog;gilapy; epue;ju cWj;Jf;fl;lis ghpfhuk;
tH';fj;jf;fjhFk;/ vdnt. nkl;Lg[J}h; fpuhkj;jpy;.
thjpfs; fpiuag;gj;jpuj;jpy; fz;l brhj;J
f/r/115/v2/v8f;F rkkhd hP/r/vz;/167/3 kw;Wk; 167/4
Mfpatw;wpy; mike;Js;sjhf Twg;gl;oUe;jhYk;.
hP/r/vz;/167/4nyna thjpfs; brhj;J
mike;Js;sbjd;gJ ePkrhM3ypUe;J bjhpfpwJ/
vdnt. tl;lhu msitahpd; ePkrhM3go
hP/r/vz;/167/4y; ePy tz;zkpl;L fhl;lg;gl;Ls;s
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S.A.No.421 of 2021
gFjpapy; 111/50 r/kP/ fhypaplj;ijg; bghWj;J kl;Lk;.
thjpf;F thrhM1 fpiuag;gj;jpuj;jpd;go. chpik
K:yj;jpd; mog;gilapy; epue;ju
cWj;Jf;fl;lisg;ghpfhuk; tH';fj;jf;fbjd;W Kot[
bra;ag;gLfpwJ/ ePkrhM3y; tp$ag[hp fpuhkj;jpy; cs;s
brhj;jpy; hPrh;nt vz;/398/1y; cs;s 8 r/kPll
; h;
thjpfspd; fhypaplk; vd;W Twg;gl;oUe;jhYk;. nkw;go
,lj;ijg;bghWj;J. nkw;go brhj;ij jhthr;brhj;J
tptuj;jpy; nrh;ff
; tHf;Fiuia jpUj;jk;
bra;ahjjhYk;. tHf;Fiuapy; Fwpg;gplhj brhj;ij
bghWj;J cWj;Jf;fl;lis ghpfhuk; thjpfSf;F
tH';f Koahbjd;W Kot[ bra;ag;gLfpwJ/
mijg;bghWj;J kl;Lk; thjpapd; tHf;F js;Sgo
bra;aj;jf;fbjd;W Kot[ bra;ag;gLfpwJ/ vdnt
nkw;go fhuz';fspdhy;. tprhuiz ePjpkd;wk;
thjpfspd; tHf;if mg;gona mDkjpj;jJ jtbwd
Kot[ bra;ag;gLfpwJ/ mjd; bjhlh;rr
; pahf. ,e;j
nky;KiwaPl;L tHf;F gFjpahf
mDkjpf;fj;jf;fbjd;W Kot[ bra;ag;gLfpwJ/
tprhuiz ePjpkd;wk; m/t/vz;/148/2011y;. 26/11/2019
md;W gpwg;gpj;j jPh;g;g[ kw;Wk; jPh;g;ghiz uj;J
bra;ag;gl;L. gpd;tUkhW khw;wpaikf;fj;jf;fbjd
; [ fhzg;gLfpwJ/'
gpur;rid vz;fs; 1 Kjy; 5f;F jPht
13. Advocate Commissioner's report by itself becomes evidence in a
suit by virtue of Order XXVI Rule 10 Sub Rule (2) CPC. This Court
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therefore finds no infirmity in the approach of First Appellate Court and
First Appellate Court has also clearly proceeded on the first principle that
for a vacant site possession follows title.
14. Points for determination :
a) Whether the Courts below have erred in their findings
regarding absence of declaration prayer and possession? and
b) Whether any substantial question of law arises in the
case on hand?
15. The first point for determination has already been answered
supra [answered against the appellant] and the reasons for not finding fault
with the Courts below regarding the findings returned qua possession and
absence of declaration qua absence of declaration have already been
delineated supra. With regard to second point for determination, this
Court reminds itself that Second Appeal is a statutory right, it has to be
regulated according to the law in force and conditions mentioned in
Section 100 CPC must be fulfilled. Hon'ble Supreme Court has held that
no Court can add or enlarge the conditions in Section 100 CPC.
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16. This takes us to what the expression 'substantial question of law'
occurring in Section 100 of CPC means. The expression 'substantial
question of law' occurring in Section 100 of CPC has not been defined in
CPC, but it was described elucidatively by a Hon'ble Full Bench of this
Court in the celebrated Rimmalapudi Subba Rao's case [Rimmalapudi
Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras
969 (FB)]. These principles in Rimmalapudi Subba Rao case were
affirmatively reiterated by a Constitution Bench of Hon'ble Supreme Court
in another celebrated case law i.e., Sir Chunilal Mehta's case [Sir
Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and
Manufacturing Co., Ltd., reported in AIR 1962 SC 1314] which has been
neatly and nicely captured in Santosh Hazari case [Santosh Hazari Vs.
Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179].
Relevant paragraph in Santosh Hazari case law 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
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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 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
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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 palpably absurd the question would not be a substantial question
of law.”'
17. If the above determinants qua 'substantial question of law'
expression occurring in Section 100 CPC are applied to the case on hand,
this Court has no difficulty in coming to the conclusion that no substantial
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question of law arises or in other words, no question which is debatable, no
question which is res integra or no issue of settled principles being
disregarded arise in the case on hand.
18. Substantial question of law arising in a case is desideratum for a
drill i.e., legal drill under Section 100 CPC and therefore this Court,
following Kirpa Ram case being Kirpa Ram Vs. Surendra Deo Gaur
reported in 2020 SCC OnLine SC 935, deems it appropriate to dismiss the
captioned Second Appeal at the admission stage holding that no substantial
question of law arises in the captioned Second Appeal. Owing to the
nature of the matter, the trajectory the matter has taken and the nature of
submissions made before this Court, there shall be no order as to costs.
29.04.2021
(1/2)
Speaking order: Yes/No
Index: Yes/No
kmi
To
1. The Sub Judge,
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S.A.No.421 of 2021
Perundurai.
2. The District Munsif,
Perundurai.
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S.A.No.421 of 2021
M.SUNDAR.J.,
kmi
S.A.No.421 of 2021
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(1/2)
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