Mohideen Khan vs Rahmath Beevi
2021 Latest Caselaw 11130 Mad

                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED :     30.04.2021

                                                           CORAM

                                      THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

                                            SECOND APPEAL (MD) No.09 of 2005

                     1.Mohideen Khan
                     2.Iqbal
                     3.Mustafa                                               .......Appellants
                                                              vs.
                     1.Rahmath Beevi
                     2.Akbarkan
                     3.Ayeesha Beevi
                     4.Abdul Kader
                     5.Yuman Sulaiman                                          ....Respondents

Prayer:This Second Appeal is filed under section 100 of the Code of the Civil

Procedure, 1908 against the judgement and decree dated 28.11.2003 passed in AS

No.210 of 2002 on the file of the Principal Sub Court, Tirunelveli partly reversing

the judgement and decree dated 31.10.2001 passed in OS.No. 654 of 96 on the file

of the First Additional District Munsif Court, Tirunelveli.

                                      For Appellants:    Mr.T.Selvam for
                                                         Mr.Srinath Sridevan
                                      For Respondents:   No appearance







https://www.mhc.tn.gov.in/judis/
                                                          JUDGEMENT

Challenge in this Second Appeal is to the judgement and decree dated

28.11.2003 passed in Appeal Suit No. 210 of 2002 by the Principal Sub Court,

Tirunelveli, wherein the judgement and decree passed in OS.No. 654 of 96 by the

Additional District Munsif Court, Tirunelveli are partly reversed.

2. The appellants have instituted the OS.No. 654/96 on the file of the trial

court for the reliefs of declaration of title of Second Schedule property, permanent

and mandatory injunction.

3. In the plaint, it is avered that the plaint scheduled property originally

belonged to Sadiq Khan and from him the plaint scheduled property and other

properties were purchased by the first plaintiff’s husband on 07.12.1946 and he

was enjoying the same. Further, the first plaintiff’s husband purchased a part of the

property in T.S.No. 2598 from Haniba Beewi and others on 06.08.1953. In the sale

deed dated 07.12.1946, the second schedule property is shown as 3rd item. On

06.12.1967, the first plaintiff’s husband T.P.M. Mohammed Rawther died leaving

the plaintiff, his sons and daughters as his heirs. Ever since the plaintiffs have been

in possession and enjoyment of the second schedule property exclusively and were

paying municipal taxes. The second schedule property is a vacant plot forming part

https://www.mhc.tn.gov.in/judis/ of the first schedule and adjacent to it there is no separate assessment of tax. The

first defendant who is the owner of the neighboring house and site in T.S.No. 2397

has no right, interest or title in the plaint second schedule property. But off late,

when he began to construct an additional structure in T.S.No. 2397 he attempted to

use the second schedule property as if he has got right or interest in it. The

defendant also provided an opening and a gateway in his compound wall towards

the lane T.S.No. 2399 with a view to use the second schedule plot as a pathway.

The defendant’s house abuts the main street via Sikkanderpuram Street and faces

west towards the street and he has got a gateway towards the main street. The first

defendant had constructed his house encroaching 11 inches North to South on the

western side to a length of 24feet in the suit second schedule property. The

commissioner appointed by this honorable court, has marked the encroached

portion as A B C in his report. In his plan, the first defendant has also opened a

doorway on his East West Southern wall. He has put up two windows in the

downstairs and one window on the upstairs facing south. The first defendant made

a opening on the eastern side of the southern wall for scavengers. The plaintiff is

entitled for mandatory injunction for a direction to remove the encroachments

made by first defendant. Pending suit the first defendant died leaving behind the

defendants 2 – 6 as his legal heirs hence the suit.

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4. In the written statement filed on the side of defendants, it is averred that

it is false to contend that the second schedule property is the exclusive property of

the plaintiffs and it is the part of the first schedule. It is true that, the defendant is

the owner of a house in T.S.No. 2397. As a matter of fact all along, the house of

the defendant had access towards the second schedule common lane for the street,

both for access to the house and for a passage for the scavenger. The defendant

after obtaining approval of the municipal authorities had constructed a house

adjoining the old house on the south with steps leading to the common passage

then to the street on the west. The defendant has left one foot space south of the

wall of his new house for the purpose of repairing and whitewashing. The plaintiff

cannot deny the undoubted right of the defendant merely on the ground that the

defendant may use a passage directly to the street and need not use the common

passage. The common passage south of the defendant’s house had all along be

used and formed part of the house of the defendant as appurtenant property for the

beneficial use and enjoyment of the house by the defendant and his predecessors in

interest. The plaintiff has herself acknowledged the fact that this defendant and

predecessors in interest are entitled to 14 c.c north to south exclusive of the

common passage on the south of a breadth of 1 and a half c.c which would

disclose that the case of the plaintiff of exclusive right to the second schedule is

https://www.mhc.tn.gov.in/judis/ false and is estopped from contending that the defendant has no right in the second

schedule. The second schedule property was blocked by the plaintiff when the

defendant had been to Tuticorin. On a complaint by the defendant it was advised to

approach the court of law for proper relief.

5. On the basis of the divergent pleadings raised on either side, the trial

court has dismissed the suit. Against the judgement and decree passed by the trial

court, the plaintiffs have preferred Appeal Suit No. 210/2002 on the file of the

First Appellate Court.

6. The First Appellate Court after hearing both sides and upon re-appraising

the evidence available on record, partly reversed the judgement and decree passed

by the trial court. The present second appeal has been preferred at the instance of

the plaintiffs as appellants.

7. At the time of admitting the present second appeal, the following

substantial questions of law have been framed for consideration.

1) Whether a non co-owner of common lane has right use the common lane simply because the common lane has been described as one of the boundaries of the said non co-owner’s property?

2) Whether one of the co-owners of a common lane cannot inject a third party non co-owner from using the common lane?

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3) Whether one of the co-owners of a common lane is not entitled for a decree of permanent injunction restraining the third party non co-owner of common lane from interfering with the co-owner’s enjoyment of common lane?

4) Whether a co-owner of a common lane is not entitled to a decree of injunction restraining another co-owner of common lane from interfering with his common (joint) enjoyment of common lane along with such another co- owner of common lane?

5)Whether a non co-owner of a common lane has right to put up openings and windows towards common lane simply because the common lane is abetting their property?

8. The appellants are the plaintiffs who filed the main suit for the relief of

declaration, permanent injunction and mandatory injunction in respect of suit

second schedule property against the respondents/ defendants. In the suit, the

plaintiffs have claimed the plaint second schedule property, absolutely belongs to

them and the same was purchased by the first plaintiff’s husband by way of

registered sale deeds. Per contra the respondents/ defendants have contended that

only through the second schedule property, the defendants and predecessor in title

had access to street from time immemorial and hence they have put up steps and

door towards the second schedule property. The respondents/ defendants have also

denied the allegation of encroachment and sought for dismissal of the suit.

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9. The trial court after analyzing the oral and documentary evidence of both

the sides dismissed the suit that the appellants/ plaintiffs have failed to prove their

exclusive title and possession over the second schedule property and held that the

second schedule property is a common lane. On appeal the first appellate court

after reappraising the oral and documentary evidence of both the sides has partly

allowed the appeal. The first appellate court confirmed the trial court’s judgement

with regard to the declaratory relief. With regard to the doors and windows, the

first appellate court denied the prayer of injunction by holding that the suit second

schedule property is a common lane. In so far as the relief of injunction with

regard to laying of pipes, draining of sewage water injunction restraining the

respondents/ defendants was granted. Mandatory injunction was granted pertaining

to the portion encroached by the respondents as per the commission report and

plan which is attached to the decree.

10.When this Second Appeal came before this Court for hearing, none

appeared on the side of the respondents in spite of given sufficient opportunities.

Heard the learned counsel for the appellants. Written submission also filed on the

side of the appellants.

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11. The appellants contended that the courts below failed to appraise

Ex.A1, A2 & B2 in proper perspective and misconstrued as to the term of

“common lane” as belonging to the respondents instead of holding that the same is

a common lane to the appellants only along with other co-owners which shall not

include the respondents/ defendants.

12. The learned counsel for the appellants would further contend that

having found that the respondents are not the co-owners with the appellants/

plaintiffs ought to have decreed the suit. It is further contended that the

respondents not being the co-owner of common lane, do not have any right to use

the common lane simply because there is a description of common lane as one of

the boundaries in the respondent’s sale deed. It is also contended that the

appellants being one of the co-owners of a common lane has right to inject the

respondents who are the third parties, when particularly the respondents have not

filed even a single document to prove their co-ownership of common lane and

sought for allowing the second appeal by setting aside the decree and judgment of

the courts below. Section 100 of the Civil Procedure Code (CPC) which provides

https://www.mhc.tn.gov.in/judis/ for a Second Appeal, as amended by the Civil Procedure Code (Amendment) Act,

104 of 1976, with effect from 1.2.1977,provides as follows:-

“100. Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

An appeal may lie under this section from an appellate decree passed ex parte.

In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

In the case of Nazir Mohamed Vs Kamala And Others a reportable judgment in Civil Appeal Nos 2843-2844 of 2010 the Apex court at para 29 and in subsequent paragraphs has discussed about the principles for deciding when a question of law becomes a substantial question of law”

13.The principles for deciding when a question of law becomes a

substantial question of law, have been enunciated by a Constitution Bench of

this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.

1 , where this Court held:-

“The proper test for determining whether a question of

https://www.mhc.tn.gov.in/judis/ 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 case of Hero Vinoth v. Seshammal2, and Chunilal v. Mehta

and Sons and other judgments the Apex Court had summarised the tests to find

out whether a given set of questions of law were mere questions of law or

substantial questions of law.

15. The relevant paragraphs of the judgment of this Court in Hero Vinoth

(supra) are set out hereinbelow:-.

“21. The phrase ”substantial question of law”, as occurring in the amended Section 100 CPC 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-

https://www.mhc.tn.gov.in/judis/ 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. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 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. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] 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 [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)

“When 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

https://www.mhc.tn.gov.in/judis/ fact of the case it would not be a substantial question of law.”

16. To be “substantial”, a question of law must be debatable, not previously

settled by the law of the land or any binding precedent, and must have a material

bearing on the decision of the case and/or the rights of the parties before it, if

answered either way.

17. To be a question of law “involved in the case”, there must be first, a

foundation for it laid in the pleadings and the question should emerge from the

sustainable findings of fact, arrived at by Courts of facts, and it must be necessary

to decide that question of law for a just and proper decision of the case.

18.Whether a question of law is a substantial one and whether such

question is involved in the case or not, would depend on the facts and

circumstances of each case. The paramount overall consideration is the need for

striking a judicious balance between the indispensable obligation to do justice at

all stages and the impelling necessity of avoiding prolongation in the life of any

lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari4.

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37. The principles relating to Section 100 CPC relevant for this case may be

summarised thus :

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.

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 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.

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. A decision based on no evidence, does not refer only to

https://www.mhc.tn.gov.in/judis/ cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

19. In the present case the appellants have claimed that the suit second

schedule property is their absolute property by virtue of the sale deeds Ex.A1,and

Ex.A2 dated 7.12.1946 and 11.4.1930 respectively. The appellants also relied

upon Ex.A3 to Ex. A6, the mortgage deed, cash receipts for discharging the

mortgage in the name of the vendor of the appellants. Through Ex.A1 the husband

of the deceased first appellant”s husband had purchased the second schedule

property which is the third item of Ex,A1 sale deed. Ex. A2 is the sale deed in

favour of the vendor of the appellants. The suit second schedule property is

mentioned as “ sontha nadai pathai”.

20.The point to be decided in the appeal is whether the Courts below have

misconstrued the term common lane in the documents and negatived the prayer of

declaration.

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21. There is no dispute with regard to the identity of the disputed second

schedule property which lies east west in T.S. no. 2399. It is the admitted fact that

the respondents' property lies North of the suit second schedule property.

According to the respondents the disputed second schedule property is not the

absolute property of the appellants, but is the common path way. Ex. A7 is the

sale deed of the respondents dated 30,3 1928 in the name of Sulaiman khan who

is the grand father of the respondents 2 to 6. In Ex. A7 the disputed property is

mentioned as “kilamel muduku” only and not as” common pathway”. Ex.A8 is

the mortgage deed dated 16.11.1940 executed by the above said Sulaiman

khan. In Ex.A 8 the respondents” property ie.,T.S no. 2397 which is the northern

boundary of the disputed second schedule property had been mortgaged. Even in

Ex. A 8 the southern boundary is mentioned as “kilamel mudukku” only and not

as “ common lane”. The courts below have not considered the same . Whereas the

courts below have considered Ex B1,B3 to Ex. B9 all self serving documents like

motgage deeds, othi deeds , gift deed by Sulaiman khan to his wife, deeds

redeeming the mortgage and oth i by obtaining cash receipts. In all the above self

serving documents the disputed second schedule property T.S.no. 2399 is

mentioned as “Kilamel Pothu Muduku” instead of “Kilamel Muduku” as in the

original sale deed of Sulaiman khan Ex.A7 dated as early as on 30.3 1928.

22. As contended by the appellants since because there is a mentioning of

https://www.mhc.tn.gov.in/judis/ common lane in Ex.B2 sale deed dated 6.8.1953. in the name of the father of the

appellants 2 to 4, the respondents cannot claim claim right over the disputed

second schedule as common lane for them also. When admittedly the vendors of

the appellants and respondents are third parties the respondents are not entitied

to claim the disputed second schedule property as common lane for them also. As

discussed earlier, when the respondents cannot claim any right over the disputed

second schedule property as a common lane based on their self serving document

especially when the father of the appellants 2 to 4 had purchased the same as per

Ex.A2 based on his vendor’s document the Ex A1 which is of the year 1930, the

courts below ought to have granted the relief of declaration. But by misconstrued

the documents went wrong in declining the declatory prayer as against the

appellant, which would definitely affect the right of the appellants and this Court

is of the view that the appellants/plaintiffs are entitled to the absolute right over

the second schedule property based on their title deeds and in consequent entitled

for the declatory relief.

23. Since it is held that the suit second schedule property is the absolute

property of the appellants/plaintiffs,

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(i) the appellants/plaintiffs are entitled for the declaration and

permanent injunction restraining the respondents 2 to 6 from in any manner

interfering or trespassing with the appellants'/plaintiffs possession and enjoyment

of the plaint second schedule property;

(ii) the appellants/plaintiffs are also entitled for permanent injunction

restraining from having the door way facing towards the suit second schedule

property;

(iii) the appellants/plaintiffs are also entitled for permanent injunction

from letting out any waste or drainage water towards south so as to fall into the

plaint second schedule property.

(iv) the appellants/plaintiffs are also entitled for mandatory injunction by

removing the doorways facing the second schedule property and also by removing

the encroachmnts in the second schedule property as mentioned in the

Commissioner's report and plan.

(v) the appellants/plaintiffs are also entitled for mandatory injunction to

remove all the outlets put up by the respondents to let out rain water and drainage

water in the second schedule property.

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24. In the result, this Second Appeal is allowed. The order of the Courts

below are set aside and the suit is decreed as prayed for by the

appellants/plaintiffs. Two months time granted to the respondents for removing

the doorway and encroachments as mentioned in the Commissioner's report. No

costs.

                                                                                                 30.04.2021

                     Index : Yes/No
                     Internet    : Yes/No
                     mpa

Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis/ To

1.The Principal Sub Court, Tirunelveli.

2.The First Additional District Munsif Court, Tirunelveli.

3. The Section Officer, V.R Section, Madras High Court, Chennai.

Note: Copy to respondents too.

https://www.mhc.tn.gov.in/judis/ S.KANNAMMAL,J.

mpa

Pre-delivery Judgement made in S.A.(MD).No.09 of 2005

30.04.2021

https://www.mhc.tn.gov.in/judis/