Madras High Court

K.C.Vellaiyangiri vs K.M.Palanisamy on 7 April, 2021

                                                                                 S.A.No.287 of 2021



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 07.04.2021
                                                        Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                S.A.No.287 of 2021


                  K.C.Vellaiyangiri
                  Son of Chennaimalai Gounder                              .. Appellant

                                                           Vs.

                  1.        K.M.Palanisamy
                            Son of Muthusamy Gounder

                  2.        Prithivraj
                            Son of K.M.Palanisamy                          .. Respondents


                            Second Appeal under Section 100 of CPC against the judgment and
                  decree passed in A.S.No.2 of 2018 dated 21.02.2019 on the file of the
                  Subordinate Court at Perundurai, in modifying the judgment and decree
                  made in O.S.No.342 of 2010 dated 24.01.2018 on the file of the District
                  Munsif cum Judicial Magistrate Court at Perundurai, Erode District.


                            For Appellant           :    Mr.M.Guruprasad

                            For Respondents         :    Mr.S.Kaithamalaikumaran

                                                        ----



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                                                                                      S.A.No.287 of 2021




                                                   JUDGMENT

This litigation between the adversaries commenced more than one

decade ago, to be precise, it commenced on 30.11.2010 when a suit in

O.S.No.342 of 2010 was filed on the file of the 'District Munsif Cum Judicial

Magistrate Court at Perundurai' [hereinafter 'trial Court' for the sake of

convenience and clarity], with a prayer for declaration that plaintiff is

entitled to use a cart track. This cart track is described as 'B' schedule

property in the plaint but 'B' schedule of the plaint does not give the length

of cart track though it gives four boundaries and it mentions that breadth

(East - West) is 15 feet.

2. A perusal of the plaint brings to light that the suit is predicated on

easementary right but it has not pleaded whether it is easement by grant,

easement of necessity or easement by prescription.

3. Defendants 1 and 2 are father and son respectively. The defendants

entered appearance, filed written statement dated 29.04.2011 and additional

written statement dated 11.09.2016. The trial Court, after full contest,

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decreed the suit vide judgement and decree dated 24.01.2018. Full contest

inter-alia but necessarily means Ex.A1 to Ex.A11 on the side of plaintiff,

Ex.B1 & Ex.B2 on the side of defendants, two Court exhibits Ex.C1 &

Ex.C2 (both dated 28.01.2011) being Advocate Commissioner's reports. In

the trial Court, 3 witnesses namely P.W.1 to P.W.3 were examined on the side

of plaintiff and 2 witnesses namely D.W.1 & D.W.2 were examined on the

side of defendants. To be noted, the plaintiff examined himself as P.W.1 and

first defendant examined himself as D.W.1.

4. 2 defendants i.e., father and son duo, aggrieved by the suit being

decreed by the trial Court carried it in appeal by way of a regular First

Appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for

brevity) vide A.S.No.2/2018 on the file of the 'Sub-Court, Perundurai, Erode

District' [hereinafter 'First Appellate Court' for the sake of convenience and

clarity].

5. The sole plaintiff who was arrayed as lone respondent in the First

Appellate Court entered appearance and contested regular first appeal under

Section 96 of CPC. The First Appellate Court, after full contest, confirmed

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the decree in all aspects except modifying the decree qua breadth of suit cart

track (15 feet was reduced to 10 feet). To be noted, plaint prayer includes a

injunction limb also.

6. Be that as it may, the plaintiff in trial Court stating that he is

aggrieved by First Appellate Court order dated 21.02.2019 modifying the

width/breadth of cart track (15 feet to 10) feet has presented the captioned

second appeal in this Court on 27.11.2019.

7. In captioned second appeal which is listed under the caption 'For

Admission' today, Mr.M.Guruprasad learned counsel on record for appellant

is before me in this Virtual Court. The name of Mr.S.Kaithamalai Kumaran

and his co-counsel has been shown in cause list and therefore learned

counsel has also joined the video conferencing hearing though Second

Appeal is listed for admission. This Court is informed that Mr.S.Kaithamalai

Kumaran and his co-counsel were on record for respondents at the

condonation of delay [COD] in filing stage and therefore, their names are

shown in cause list. Out of deference, learned counsel is before this Court as

the second appeal is listed for admission. Learned counsel for appellant, as

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protagonist of captioned Second Appeal which is obviously under Section

100 of CPC, drew the attention of this Court to memorandum of grounds of

Second Appeal and more particularly, questions adumbrated therein which

according to the learned counsel for protagonist of captioned Second Appeal

are substantial questions of law. Though five questions have been

adumbrated under the caption 'Substantial Questions of Law' though several

grounds have been raised i.e., as many as 19 grounds, submissions were

projected on two questions namely, question Nos.2 & 3 which read as

follows:

'ii. Whether the Lower Appellate Court is right in overlooking the report of the Advocate Commissioner filed before the trial Court, without having any evidence superseding the said report in order to prove the width of the Suit Cart Track 'B' Schedule property?

iii. Whether the Lower Appellate Court is right in ignoring the report of the Advocate Commissioner which forms the part of evidence on record, as per Order XXVI Rule 10 of CPC, 1908?'

8. This Court, pointed out that it may be more appropriate to refer to

Sub-Rule (2) in question No.2 or in other words, Order XXVI Rule 10 Sub-

Rule (2) of CPC. Learned counsel requested this Court to consider question

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No.3 as one turning on Order XXVI Rule 10 Sub-Rule(2) i.e., Order XXVI

Rule 10(2) of CPC.

9. A perusal of the trial Court judgment reveals that trial Court has

adverted to 2 Court Exhibits namely, Ex.C1 & Ex.C2 both being reports of

Advocate Commissioner (both dated 28.01.2011). This is in paragraph No.27

of judgement of trial Court which reads as follows:

'27/ ,ilepiy kD vz;/1185-2010d; go ePjpkd;w Mizah; jhth brhj;Jf;fis ghh;itaplL ; Mizah; mwpf;if kw;Wk; tiuglk;

jhf;fy; bra;Js;shh;/ mit eP/k/r/h/M/1 kw;Wk; eP/k/rh/M/2 Mf FwpaPL bra;ag;gl;Ls;sd/ nkw;go Mtz';fspd; go jhth tz;og;ghij epiyapy; ,Ug;gjhftk;. mjd; tHpahf thjp g{kpfSf;Fs; bry;tjhft[k; brhy;yg;gl;Ls;sJ/ gp/th/rh/1 thjp jug;gpgy; FWf;F tprhuiz bra;ag;gl;lnghJ.

"v';fs; g{kpapd; giHa f/r/197 vd;why; rhpjhd;/ thjp g{kpapd; giHa f/r/196 vd;why; rhpjhd;/ me;j tz;oj;jlk; bjw;nf cs;s gl;lf;fhud; ghisaj;jpYs;s v';fs; g{kpfSf;Fs; bry;y eh';fs;

Vw;gLj;jpfb; fhz;lJ/ gl;lf;fhud; ghisaj;jpYs;s g{kpfs; 4. 5 ngUf;F Tl;lhf cs;sJ/ me;j g{kpfspy;

tptrhak; bratjpyi ; y/ vdJ g{kpia xl;ona gl;lf;fhud;ghisak; fpuhkk; tUtjhy; jlk; tpl

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ntz;oa mtrpak; ,y;iy vd;why; ghff;fwhh; bra;jnghJ vdJ rpj;jg;gh g';fpwf; hf jlk; xJf;fg;gl;lJ/ mij ehd; th';fpfb; fhz;nld;/ vdJ rpj;jg;gh g';fpypUe;J jhth tz;oj;jlk; tUtjw;F vdJ g{kpapd; fpHf;nf 18 yp';!; mstpy; bjd;tly; tz;oj;jlk; cs;sJ/ bjd;tly; tz;oj;jlj;jpd; tHpahfnt gl;lf;fhud; ghisaj;jpw;F bry;yyhk; vd;Wk; fpHnyhf jhth tz;oj;jlk; nghl ntz;oa mtrpak; ,y;iy vd;why; rhpay;y/"

vd;Wk; rhl;rpak; mspj;Js;shh;/ Mdhy; ePjpkd;w Mizah;

mwpf;if kw;Wk; tiuglj;jpy; thjp gpujpthjpfs; g{kpfSf;F ,ilna bjd;tly; caph;ntyp ,Ug;gjhf fhl;lg;gl;Ls;sJ/ jhth tz;og;ghijapy; cs;s fpHnky; gFjpapy; ntyp ,Ug;gjhf fhl;lg;gltpyi ; y/ me;j ghij tHpahf thjp g{kp tiu 15 moapy;

jlk; bry;tjhfnt brhy;yg;gl;Ls;sJ/'

10. Learned counsel for appellant drew the attention of this Court to

Paragraph No.27 of the judgement of trial Court and submits that the reports

of Advocate Commissioner have been considered by trial Court. Learned

counsel for appellant submits that reports of Advocate Commissioner are

evidence in the suit and it shall form part of records. This submission is

made by predicating the same on Sub-Rule (2) of Rule 10 of Order XXVI of

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CPC. It is the case of learned counsel that reports of Advocate

Commissioner have not been looked into and if the reports of Advocate

Commissioner have been looked into, it would have come to light that suit

cart track is 15 feet wide.

11. As already alluded to supra, learned counsel for respondent has

joined this video conferencing hearing only as a matter of deference as his

name is shown in cause list he having entered appearance in CMP at COD

stage, but learned counsel confirms that 2 defendants in trial Court have not

preferred any second appeal as of today against the aforementioned judgment

and decree of First Appellate Court dated 21.02.2019. This submission is

recorded.

12. This Court now examines the arguments predicated on reports of

Advocate Commissioner and evidence taken by Advocate Commissioner

together with the report becoming evidence in the suit and forming part of

the record. In the case on hand, as already alluded to supra, it has not been

pleaded by the plaintiff with clarity and specificity as to whether the

easementary right qua cart track that has been claimed is easement by grant,

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easement of necessity or easement by prescription. Under such

circumstances, parent documents i.e., documents under which the plaintiff

and defendants have purchased their respective properties which are

dominant and servient heritages, First Appellate Court has noticed that the

breadth of cart track has not been mentioned in the conveyance documents

namely Ex.A1 & Ex.A2 which are sale deeds of the year 1936. However,

there is a mention about the track and it has been described as 'fhy;ghij'.

13. Therefore, the First Appellate Court has proceeded on the basis

that 10 feet wide of cart track will suffice for enjoyment of plaintiff property

which has been described as 'A' schedule property in the plaint. The law is

well settled that Court will go by barest necessity principle in cases of this

nature and that is what the First Appellate Court has done.

14. This takes us to the question as to whether First Appellate Court

having completely ignored the evidence i.e., 2 reports of Advocate

Commissioner namely, Ex.C1 & Ex.C2 both dated 28.01.2011. A careful

perusal of judgment of First Appellate Court brings to light that First

Appellate Court has in fact looked into the report of Advocate Commissioner

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and has even noticed that in the reports of Advocate Commissioner, it has

been mentioned that cart track is 15 feet wide. This is in paragraph No.26 of

judgement of First Appellate Court which reads as follows:

'26/ jhth gp ml;ltizr; brhj;jpd; mfyk; 16 mo vd;W thjp tHf;Fiuapy; jpUj;jk; bra;J Fwpgg; plL ; s;shh;/ Mdhy;. gpujpthjpfs; nkw;go ghijapd; mfyk; 10 mo vd;W kl;Lnk fl;rp bra;Js;shh;fs;/ ePjpkd;w Mizahh; jdJ mwpf;ifapy; jhth tz;og;ghijapd; mfyk; Rkhh; 15 moahf fhzg;gl;lJ vd;W Fwpg;gplL ; s;shh;/ th/rh/M/1 kw;Wk; th/rh/M/2 Mf jhf;fy; bra;ag;gl;l. 1936k; tUlj;jpa thjp kw;Wk; gpujpthjpfs; Kd;ndhh;fspd; fpiuag; gj;jpu';fspy;. nkw;go ghijapd; mfyk; Fwpg;gplg;gltpy;iy/ th/rh/M/1y; mJ fhy;ghij vd;Wk;. mJ tz;o thfd';fs; Xl;of; bfhs;s ntz;oaJ vd;W Fwpg;gplg;gl;Ls;sJ/ mnj nghy; th/rh/M/2Yk; ,nj tptuk;jhd; cs;sJ/ vdnt 1936k;

Mz;oy; cs;s th/rh/M/1. 2 Mtz';fspy; fz;l xg;ge;jj;jpd; go tH';fg;gl;l trjpa[hpik mog;gilapy; kl;Lnk. thjpf;F gp ml;ltiz ghijapy; chpik cs;sJ vd;gjhy; mijtpl TLjyhd chpik nfhuKoahJ/' (Underlining made by this Court is for the ease of reference)

15. Thereafter, in paragraph No.27 of judgement of First Appellate

Court has gone on to hold as follows:

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'27/ vdnt 1936k; Mz;oy; cs;s tz;ofspd; mfyk;. 10 mof;F nky; ,Uf;f KoahJ vd;w gpujpthjpfs; jug;g[ thjk; Vw;g[ilajhfnt cs;sJ/ trjp jhf;fy; bra;j th/rh/M/3 1989k; tUlj;jpa thjp bgahpyhd mtuJ je;ij vGjp itj;j brl;oy;bkd;l; gj;jpuj;jpy; f/r/133-6 g{kpf;F 2tJ mapl;l g{kpapd; fpHf;F ntyp Xukhf 10 mo mfyj;jpy; tz;o thfdhjpfs; Xl;of; bfhs;st[k;. fhy;eilfSld; ele;J bfhs;st[k;. jlg;ghj;jpa';fs; cl;glt[k; vd;w thrfk; cs;sJ/ vdnt mJ ntW xU ghij bjhlh;ghdJ vd;whYk;. 1989k; Mz;onyna tz;o thfdk; Xl;l 10 mo ghij kl;Lnk tplg;gl;Ls;sJ vd;gJ. th/rh/M/3 Mtzj;jpy; cs;s r';fjpfspd; K:yk; bjhpa tUfpwJ/ vdnt 1936k; Mz;oy; tz;o thfd';fs; Xl;l 10 moia tpl TLjyhf 15 mo mfy ghij tplg;gl;lJ vd;w thjp jug;g[ thjk; Vw;g[ilajhf ,y;iy/ vdnt jhth gp ml;ltiz ghijapy; thjpfF ; tH';fg;gl;l trjpah[ pikapd; fPH; 1936k; tUlj;jpa th/rh/M/1. 2 Mtz';fspd;go. nkw;go chpik tH';fg;gl;l fhy fl;lj;jpy; cs;s tz;o thfd';fs; Xl;l 10 mo mfy ghijna nghJkhdJ vd;gjhy;. nkw;go 10 mo mfy ghijia bghWj;J kl;Lnk. thjp jdJ V ml;ltiz brhj;ij mila tpsk;g[if kw;Wk; mjd; bjhlh;rr; pahd epue;ju cWj;Jf; fl;lis ghpfhuk; tH';fj;jf;fJ vd;W gpur;rpid vz;fs; 1 Kjy; 6f;F Kot[ bra;ag;gLfpwJ//' (Underlining made by this Court is for the ease of reference)

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16. It is in the aforesaid manner that First Appellate Court has

modified the decree of the trial Court to the limited extent of modifying the

breadth/width of cart track from 15 feet to 10 feet.

17. This takes us to the question as to whether any substantial

questions of law arises in the captioned Second Appeal.

18. In Kanailal case being Kanailal and others Vs. Ram Chandra

Singh and others reported in (2018) 13 SCC 715, Hon'ble Supreme Court

has held that principles of Order XLI Rule 31 of CPC stand telescoped in a

second appeal legal drill and in Kirpa Ram case being Kirpa Ram Vs.

Surendra Deo Gaur reported in 2020 SCC OnLine SC 935, Hon'ble

Supreme Court has laid down the principle that a second appeal can be

dismissed at the admission stage without formulating substantial questions of

law if none arises.

19. This Court, on a combined and conjoint reading of Kanailal and

Kirpa Ram principles, has no hesitation in setting out that the sole point for

determination in captioned second appeal is whether substantial question of

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law arises from the facts, findings, trajectory and arguments captured supra.

This court before giving its decision on this point for determination with

reasons has reminded itself of the determinants qua substantial question of

law which expression occurring in Section 100 is not defined in CPC, but

has been explained by Hon'ble Full Bench of this court in Rimmalapudi

Subba Rao Vs. Noony Veeraju and others reported in AIR 1951 Mad 969

(FB). 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 case, affirming th view taken by Full Bench of this, was reiterated.

Relevant paragraph of Santosh Hazari case is paragraph 12 which 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

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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 question of law. On the other hand if the question was practically covered by the

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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.”'

20. This obtaining position has been subsequently reiterated by

Hon'ble Supreme Court in Malan Bi case being Syeda Rahimunnisa Vs.

Malan Bi reported in (2016) 10 SCC 315. In other words, to put it

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differently, the answer to sole point that arises for determination in the

captioned second appeal is in the negative, i.e., no substantial question of

law arises. The decision thereon is set out infra (answer in the negative) and

reasons for the decision is articulated supra.

21. This Court carefully considered the two questions that have been

projected by protagonist of Second Appeal as substantial questions of law.

To be noted, 2 out of 5 questions proposed which were projected in the

hearing have been extracted and reproduced elsewhere supra in this

judgment. This Court is unable to find that the 2 questions

projected/canvassed do not qualify as substantial questions of law as they do

not call for debate. It is not a res integra. It is not the case where settled

principle has been overlooked by Court. To be noted, this is applying

elucidation by Hon'ble Supreme Court qua the expression 'Substantial

Question of Law' occurring in Section 100 of CPC and the case laws in this

regard have been alluded to elsewhere supra in this judgment. This case

does not fall under any of 3 exceptions carved out in Hero Vinoth case