Madras High Court

Natarajan vs Thangaraju on 8 April, 2021

                                                                                S.A.No.309 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 08.04.2021
                                                      Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                               S.A.No.309 of 2021
                                                      and
                                              C.M.P.No.6144 of 2021

                  1. Natarajan
                     S/o.Srinivasan

                  2. Rathnakala
                     W/o.Natarajan                                             .. Appellants

                                                         Vs.
                  1. Thangaraju
                     S/o.Nagi Chettiar

                  2. Dhanabagyam
                     W/o.Nagi Chettiar

                  3. Arul
                     S/o.Nagi Chettiar                                   .. Respondents

                            Second Appeal under Section 100 of CPC to set aside the judgement
                  and decree dated 28.06.2019 made in A.S.No.54 of 2015 on the file of
                  Additional Subordinate Judge at Namakkal reversing the Judgment and
                  decree dated 19.08.2015 made in O.S.No.553 of 2011 on the file of Principal
                  District Munsif Court, Namakkal.
                            For Appellants        :     Mr.M.Ashwin Kumar
                                                      ----

                 1/20
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                                                                                     S.A.No.309 of 2021




                                                 JUDGMENT

Mr.M.Ahswin Kumar learned counsel of M/s.Sarvabhauman

Associates (Law Firm) on behalf of two appellants (to be noted, two

appellants are spouses) is before this Virtual Court.

2. In about 8 months from now, this litigation will be one decade old as

it commenced on 13.12.2011 when the appellants before this Court as

plaintiffs presented a suit in O.S.No.553 of 2011 on the file of the 'District

Munsif Court at Namakkal' [hereinafter 'trial Court' for the sake of

convenience and brevity]. This suit is for declaration of title and

consequential injunction with regard to 3 items of properties and for an

injunction restraining three defendants qua what according to plaintiffs is a

'Paathai' (ghij). To be noted, the three defendants are one Thangaraju, his

spouse Dhanabagyam and their son Arul.

3. For better appreciation of crux and gravamen of the lis this Court

deems it appropriate to extract and reproduce the sketch appended to plaint

which is as follows:

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4. Learned counsel for appellants points out that properties shown as

P1, P2 & P3 in above sketch comprised in S.Nos.550/22, 550/21, 550/15 &

16 respectively belong to plaintiffs, property marked as 'D' belongs to

defendants, private lane (Pathai) qua which injunction limb of the suit prayer

has been made is comprised in S.No.550/19 and has been shown as 'A' 'B'

running North to South. To be noted, all survey numbers are survey numbers

in N.Kosavampatti Village within the jurisdiction of Namakkal Joint

Registrar and Namakkal Registration District.

5. Defendants entered appearance in the trial Court and completed

pleadings by filing written statement dated 18.07.2012. Issues were framed.

To be noted, four issues were framed. It is not necessary to dilate on this and

suffice to say that before the trial Court, on the side of plaintiffs 2 witnesses

were examined namely, P.W.1 & P.W.2. First plaintiff i.e., Natarjan

examined himself as P.W.1 and the Village Administrative Officer of

Kosavampatti Village was examined as P.W.2. On the side of defendants, 3rd

defendant i.e., Arul examined himself as D.W.1 and one Muthukumar was

examined as D.W.2. On the side of plaintiffs 4 documents, namely Ex.A1 to

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Ex.A4 were marked, on the side of defendants 1 document, namely Ex.B1

was marked and certain documents were marked as Ex.C1 to Ex.C3. In the

course of trial, Advocate Commissioner was appointed. This Advocate

Commissioner made local inspection and submitted a report together with

sketch. The report of Advocate Commissioner and sketch have been marked

as Ex.X1 & Ex.X2 respectively. The trial Court on appreciation of oral and

documentary evidence before it returned a finding that what according to

plaintiffs is a private lane comprised in S.No.550/2019 is a Government

Poromboke. This factual finding returned by trial Court is contained in

Paragraph No.21 of trial Court judgement, which reads as follows:

'21/ r/vz;/550-19 murh';fj;Jf;F ghj;jpag;gl;l rh;f;fhh; g[wk;nghf;F vd;W thjpfs; TWfpd;wdh;/ ,jid gpujpthjpfs; kWf;fpd;wdh;/ rk;kg;ejg;gl;l fpuhk eph;thf mYtyh; jd;Dila ePjpkd;w rhl;rpaj;jpy; r/vz;/550-19 ml';fy; gjpntl;oy; rh;f;fhh; g[wk;nghf;F vd;W tifghL bra;ag;gl;Ls;sjhf TWfpwhh;/ rh/rh/M/2 ml';fy; gjpntl;il ghprPypf;ifapy; r/vz;/550-19 rh;f;fhh; g[wk;nghf;F re;J vd;W tifghL bra;ag;gl;Ls;sJ/ vdnt fpuhk eph;thf mYtyhpd; rhl;rpak; kw;Wk; tUtha; Mtzkhd ml';fy; gjpntL Mfpatw;iw itj;J ghh;f;Fk;

nghJ r/vz;/550-19 jw;bghGJk; muR g[wk;nghf;F re;J vd;nw

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tifghL bra;ag;gl;Ls;sjhf bjhpfpwJ/ vdnt mJ murh';fj;jpw;F ghj;jpag;gl;l gFjpahFk;/ nk;wgo r/vz;/550-19d; cz;ikahd chpikahsh; murh';fkhFk;/ mjpy; thjp. gpujpthjpfs; cl;gl ve;jbthU jdp egUf;Fk; ghj;jpakpy;iy thjj;jpw;fhf gpujpthjpfs; fHptiw fl;o 550-19y; mDgtpj;J te;jdh; vd;W vLj;Jf;bfhz;lhYk; mth;fSila mDgtk; rl;l Kiwaw;w Mf;fpukpg;gghfnt fUjg;gLk;/ r/vz;/550-19y; mike;Js;s jhth ghij ePjpkd;w Mizah; mwpf;ifgoa[k;. fpuhk eph;thf mYtyhpd; rhl;rpag;goa[k; ePz;l fhykhf cgnahfg;gLj;jg;glhky; g[y;. g{z;L ku';fs; tsh;e;J fhzg;gLtjhf bjhpfpwJ/ mit cgnahfg;gLj;jg;glhky; ,Ue;jhYk; murh';f tUtha; Mtz';fspy; g[wk;nghf;F re;J vd;W tifghL bra;ag;gl;oUg;gjhy; mjid ghijahfnt fUj ntz;Lk;/ muRf;F ghj;jpag;gl;l gFjpia cgnahfg;gLj;Jtjw;F midj;J Fokf;fSf;Fk; chpik cz;L/ me;j ghijapy; ve;jbthU jdp egUk; chpikanah. mDgtnkh bfhz;lhl KoahJ/ thjpfs; mDgtj;ij gpujpthjpfnsh. gpujpthjpfs;

                            mDgtj;ij        thjpfnsh          jLf;f         KoahJ/               ,UtUf;Fk;
                            rkchpika[k;        mDgtKk;              cz;L/       ePz;lfhykhf           ghij

cgnahfg;gLj;jglhj fhuzj;jpdhy; thjpfSf;F mg;ghijia gad;gLj;Jtjw;F chpik ,y;iy vd;W fUjKoahJ/ vdnt nkw;fz;l tpthj';fspd; mog;gilapy; ghh;f;Fk;nghJ r/vz;/550-

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19y; mike;Js;s jhth AB ghijahdJ muRf;F ghj;jpag;gl;l g[wk;nghf;F re;J vd;gjhy; mjpy; nghftu thjpfSf;F chpik cs;sJ vd;Wk;. thjpfspd; ghij ghj;jpaj;ij jil bra;tjw;F gpujpthjpfS;fF vt;tpj chpika[k ,y;iybad;Wk;; ePjpkd;wk; fUJfpwJ/ mt;thnw thjpfs; nfhUk; K:d;whtJ ghpfhuk; mth;fSf;F fpilf;fj;jf;fJ vd;W ,e;j vGtpdhtpw;F ,e;ePjpkd;wk; jPh;t[ fhz;fpwJ/' (Underlining made by this Court to supply emphasis, high light and for the ease of reference)

6. Notwithstanding such a factual finding the trial Court decreed the

suit. 3 defendants arrayed as appellants 1 to 3 respectively, carried the matter

by way of a regular First Appeal under Section 96 of 'The Code of Civil

Procedure, 1908' ('CPC' for brevity) to the Additional Subordinate Judge's

Court at Namakkal [herienafter 'First Appellate Court' for the sake of

convenience and clarity] vide A.S.No.54 of 2019. Plaintiffs 1 & 2 have been

arrayed as respondents in regular first appeal. The respondents in first appeal

entered appearance and contested the first appeal. After full contest, in and

by judgment/decree dated 28.06.2019 First Appellate Court allowed

A.S.No.54 of 2019 primarily on the ground that though the plaintiffs have

filed parent documents as Ex.A1 to Ex.A3, it is clear from the parent

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documents that respondents in first appeal i.e., plaintiffs had full knowledge

that what according to them is private lane is actually a Government

Poromboke. The First Appellate Court also came to the conclusion that this

A, B in the sketch is not the lone access to P3 property. It is not in dispute

that there is another access to P3 property which is evident from report of

Advocate Commissioner as well as field sketch which were filed as exhibits

before trial Court. Most relevant findings of First Appellate Court in this

regard are contained in sub-paragraph Nos.vii, viii & ix of Paragraph No.10

which reads as follows:

'vii) thjp ePjpkd;wj;jpy; ghijahdJ xd;W ,Ug;gjhft[k; mJ muR ghijahf g[wk;nghf;fpy; muR fl;Lg;ghl;oy; ,Ug;gjhft[k; thjp. gpujpthjpahf nrh;f;fhky; ,Ug;gJk; jthit epuhfhpf;ff;Toa epiyia Vw;gLj;Jk; vd;W Tw jtwptpl;lhh; vd;nw ,e;j ePjpkd;wk; fUJfpwJ/ th/rh/M1 Kjy; th/rh/M/3 tiuapyhd Mtz';fis thjp jug;gpy; jhf;fy; bra;jpUe;j nghJk;. nkw;go Mtz';fSf;fhd K:y gj;jpu';fisa[k; jhf;fy; bra;ahky; ,Ug;gJ nkYk; re;njfj;jpw;F ,lk; mspf;fpwJ/ nkYk; nky;KiwaPl;L thjpahdth; tprhuiz ePjpkd;wj;jpy;

gpujpthjpahf thjpahy; FWf;F tprhuiz bra;jnghJ ePjpkd;wj;jpy; V. gp re;J vd;gJ muR g[wk;nghf;F re;J vd;gij

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bjhpa[kh vd;W nfl;L ,Ug;gij itj;J ghh;j;jhy; nkw;KiwaPl;L vjph;kDjhuUf;F Vw;fdnt nkw;go re;jhdJ ,Ue;J vd;gJ bjhpe;Jjhd; ,Ue;jJ vd;gJ bjspthfpwJ/ MdhYk; re;J vd;gij kiwj;J tprhuiz ePjpkd;wj;jpy; thjpahd mth; Vgp re;ij ghij vd;W Fwpg;gpl;L me;jg; ghijf;F cgnahfg;gLj;Jtjw;F epue;ju cWj;Jf;fl;lis ntz;Lk; vd;Wk; nfhhp ,Uf;fpwhh;/

viii) tprhuiz ePjpkd;wj;jpy; thjpahdth; nkw;go V. gp re;ij bghJg;ghij vd;W Fwpg;gpl;l nghJk; thjpahy; jhth re;J bghJg;ghij vd;gij epU:gpf;f Koatpy;iy vd;gnj ,e;j ePjpkd;wk; fUj;jhFk;/ mJ re;J g[wk;nghf;F vd;Wjhd; tif;ggLj;jg;gl;L ,Ug;gjhf kd;wj;jpy; thjp gpujpthjp FWf;F tprhuiz bra;jpUf;Fk; epiyia itj;J ghh;f;Fk; nghJ Vw;fdnt xU re;J vd;Wk;. re;J vd;gJ kpf kpf FWfyhd ghijiana Fwpf;Fk; vd;Wk; bjhpe;J ,Ug;gjhfnt ,e;j ePjpkd;wk; fUJfpwJ/ nkYk; nky;KiwaPl;lhsh;fs; tprhuiz ePjpkd;w gpujpthjpahd mth; jhf;fy; bra;jpUf;Fk; g[ifg;gl';fis thjp Ml;nrgpf;ftpy;iy vd;gJk;. me;j g[ifg;gl';fis cw;W nehf;fpdhy; g[ifg;gl';fspy; ghij vd;W xd;W ,Ug;gnj g[yg;gltpy;iy vd;Wk;. mjdhy; jhd; nky;KiwaPl;lhsh;fs; jhthtpy; ghijna ,y;iy vd;W gjpy; bra;jpUf;fpwhh; vd;Wk;. nkw;go jhthtpy; ghij ,Ug;gij vjph; nky;KiwaPl;lhsh;fs; epU:gpf;f jtwp tpl;ljhfnt ,e;j ePjpkd;wk;

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fUJfpwJ/

ix) nkYk; vjph; nky;KiwaPl;lhsh;fs; jd;Dila tHf;Fiuapy; rh;nt ek;gh; 550-15d; kw;Wk; r/vz;/550-1f;F jhth ghijapd; K:ykhfj;jhd; ngha; te;J bfhz;oUg;gjhf brhy;ypapUg;gJ Kw;wpYk; Vw;Wf; bfhs;sj;jf;fjhf ,y;iy/ nky;KiwaPl;lhsh;fs; bra;jpUf;Fk; g[ifg;gl';fis itj;J ghh;f;Fk; nghJk; gpujpthjp rhl;rp xd;wpd; FWf;F tprhuizapd; nghJ nkw;go 550 ,d; fPH; 15 kw;Wk; 16 Mfpa tPLfSf;F thry;goahdJ bjd;g[wj;jpy; jhd; ,Uf;fpwJ vd;Wk; g[ifg;gl';fspd; K:yk; g[yg;gLfpwJ/ nkYk; me;j ,uz;L tPLfSf;Fk; thry;go ,lg;g[wj;jpy; ,Ug;gjhf ,dk; Fwpg;gplhj epiyapy; g[ifg;glj;jpy; gpd;g[wkhdJ bjspthf bjhpatpy;iy vd;Wk;. thjp xU bgha;ahd Tw;iw ePjpkd;wj;jpd; Kd; itj;jpUg;gjhfnt ,e;j ePjpkd;wk; fUJfpwJ/ thrw;goia mUfpy; itj;Jtpl;L kpff; FWfyhd re;jpd; tHpna tPl;il miltjhf thjp Twp ,Ug;gJ nkYk; Vw;Wf; bfhs;sj;jf;fjhf ,y;iy/ nkYk; tprhuiz ePjpkd;wj;jpd; thjp Mdth; gpujpthjp jhf;fy; bra;jpUf;Fk; g[ifg;gl';fis Ml;nrgpf;ftpy;iy vd;gnj thjp ,e;j ePjpkd;wj;jpw;F Jha fu';fSld; tutpy;iy vd;gij epU:gzk; bra;fpwJ/ mjdhy; ,e;j ePjpkd;wk; rh;nt ek;gh; 550- 15 kw;Wk; r/vz;/550-16 fpHf;F thrg;go bjw;fpy; jhd; ,Ue;jJ vd;Wk; 550-18w;F fpH g[wk; ,Uf;Fk; bjd;tly; ghij te;J nkw;go ghij ghijahf nkw;g[wk; jpUk;g[k; vd;Wk;. me;jg; ghij

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jhd; rh;nt ek;gh; 550-15 kw;Wk; r/vz;/550-16 Mfpatw;wpd; thrg;gof;F bry;fpwJ vd;W rhl;rp rhd;whtzk; xd;wpd; K:yk; bjspthf g[yg;gLfpwJ/'

7. The First Appellate Court has come to the conclusion that plaintiffs

have not come to Court with clean hands and therefore, they are not entitled

to discretionary reliefs. First Appellate Court allowed the appeal.

8. Plaintiffs 1 & 2 in trial court who are appellants 1 & 2 respectively

in captioned Second Appeal as protagonist of captioned Second Appeal have

suggested three questions. According to learned counsel for appellants, they

qualify as substantial questions of law. Three questions proposed by

protagonist of captioned Second Appeal as can be culled out from

memorandum of grounds read as follows:

'A. Having come to the conclusion that the property in S.F.No.550/19 is a Government lane, is the Lower Appellate Court justified in reversing the judgment and decree of the trial Court?

B. Is the Lower Appellate Court justified in reversing the judgment and decree for not showing Government as a party, more fully when no relief is claimed against Government, nor any issue is framed by the Trial Court regarding that?

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C. The Appellants having proved their title with reference to S.F.No.550/22, 550/21 and 550/15, 16 is the Appellate Court justified in not granting declamatory relief with respect to these properties?'

9. This takes us to the issue as to whether the above questions qualify

as substantial questions of law and as to whether any other substantial

question of law arise in captioned Second Appeal.

10. The expression 'Substantial Question of Law' occurring in Section

100 of CPC has not been defined in CPC and a Full Bench of this Court in

Rimmalapudi Subba Rao case [Rimmalapudi Subba Rao Vs. Noony

Veeraju And Others reported in AIR 1951 Madras 969 (FB)] went into the

question as to what exactly is connoted by the term 'substantial'. Full Bench

of this Court, held that substantial has two designated shades. It was held

that “essential, material” and in legal parlance, it often is understood as

'belonging to or involving an essential right or the merits of a matter'. This

judgement of a Full Bench of this Hon'ble Court was rendered on

22.03.1951. More than a decade later on 05.03.1962, a Constitution Bench

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of Hon'ble Supreme Court in oft-quoted Chunilal case [Sir Chunilal

V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co.

Ltd., reported in AIR 1962 SC 1314], which is also known as Century

Spinning Mills case, affirmed the view taken by Hon'ble Full Bench of

Madras High Court i.e., this Court. This is articulated in Paragraph No.6 of

Chunilal case law 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.'

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11. Thereafter, the expression 'Substantial Question of Law' occurring

in Section 100 of CPC was explained by Hon'ble Supreme Court in Santosh

Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs.,

reported in (2001) 3 SCC 179]. A three member Bench of Hon'ble Supreme

Court usefully referred to Constitution Bench judgement in Chunilal case

for explaining the expression 'Substantial Question of Law' and that portion

of Chunilal case which affirms the view taken by Hon'ble Full Bench of

Madras High Court has been referred to. This is articulated in paragraph

No.12 of Santosh Hazari case, 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 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

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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 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

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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.”'

12. Thereafter, this position has been reiterated in Malan Bi case

[Syeda Rahimunnisa Vs Malan Bi (dead) by legal representatives and

another reported in (2016) 10 SCC 315].

13. If the aforementioned parameters regarding what the expression

'Substantial Question of Law' occurring in Section 100 of CPC means is

applied, it comes to light that the aforesaid questions proposed by appellants

being projected/propounded as substantial questions of law do not qualify as

substantial questions of law as there is nothing debatable or contrary to any

settled principles. Hon'ble Supreme Court, very recently in Kirpa Ram case

[Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC

Online SC 935] rendered on 16.11.2020, reiterated that when no substantial

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question of law arises and when the High Court does not find any error in the

findings of the First Appellate Court, Second Appeal can be dismissed at the

admission stage without formulating substantial questions of law. Relevant

paragraphs in Kirpa Ram case are paragraph Nos.15, 21 & 23 which read as

follows:

'15. It has been argued that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue. It is, thus, said to have caused serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

21. In view of the above, we find that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

23. Sub-section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100

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of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.' (Underlining made by this Court to supply emphasis, high light and for ease of reference)

14. 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. On a combined and conjoint reading of Kanailal principle

and aforementioned Kirpa Ram principle, this Court holds that the sole point

for determination that arises in captioned second appeal is whether any

substantial question of law arises in the light of the facts, findings, trajectory

matters have taken in two courts and arguments. The decision thereon, i.e.,

decision on this point for determination is an answer in the negative which is

set out infra and reasons for this decision have been articulated supra.

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15. In the light of narrative thus far, the lane qua which plaintiffs'