Madras High Court
G.Rangasamy vs S.Kaaliyappan on 8 April, 2021
S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
S.A.No.321 of 2021
&
C.M.P.No.6304 of 2021
in
S.A.No.321 of 2021
G.Rangasamy ... Appellant
Vs.
1. S.Kaaliyappan
2. The Tashildar
Taluk Office
Vandavasi
Tiruvanamalai District
3. Venkatesan ... Respondents
Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree in A.S.No.14 of 2018 on the
file of the Subordinate Judge, Cheyyar, Tiruvannamalai District dated
30.07.2020 confirming the judgment and decree made in O.S.No.124 of
1/13
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
2013 on the file of the Principal District Munsif, Cheyyar, Tiruvannamalai
District dated 18.12.2015.
For Appellant : Mr.K.A.Ravindran
JUDGMENT
Mr.K.A.Ravindran, learned counsel on record for lone appellant in
captioned main second appeal is before this Virtual Court.
2. This litigation commenced more than 17 years ago, to be precise on
23.09.2003 when the appellant before this Court presented a suit on the file
of District Munsif Court, Vandavasi, which was later transferred to
'Principal District Court, Cheyyar, Thiruvannamalai District' (hereinafter
'trial Court' for the sake of brevity) and it was assigned the number
O.S.No.124 of 2013.
3. Facts are fairly simple. For appreciating the facts it needs to be
noticed that second defendant is the jurisdictional Tahsildar qua suit
property. The prayer in the suit is to restrain the second defendant
(jurisdictional Tahsildar) from transferring the patta qua suit property in
favour of third defendant . What is of significance is, the extent of suit
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
property as mentioned in the plaint is, 0.26.5 ares. Learned counsel for
appellant submits that this translates to 88 cents and this 88 cents, according
to the plaint, is situate in Punjai Survey No.17/6A in Kizhsathamangalam
Village, Vandavasi Taluk, Thiruvannamalai District. The defendants filed
separate written statements and completed pleadings. From the pleadings of
the defendants, it come to light that burden of song qua defendants'
pleadings is that the plaintiff is entitled to only 22 cents and not 88 cents as
claimed. The most relevant part of the pleadings as contained in Paragraph 6
of the written statement of the first respondent reads as follows:
'8/ jhth brhj;Jf;fspy; 0/22 brd;l; epyk; kl;Lnk
chpikbfhz;l thjp. ,jpy; 3-4 gFjpfis fpuak; bgw;w
,e;jpuh gl;lh khw;wk; bra;a Kw;gl;ljhf Fiw TwtJ
thjpapd; nkhroj;jdj;ij btspg;gLj;JfpwJ/ nkw;fz;l
MW g';fhspfspy; Ie;J egh;fsplk; 0/66 brs;l; epyk;. 12-16
ghfk; fpzW ,tw;iw fpuak; bgw;w ,e;jpuhtpyd; fpua
Mtz';fspyd; mog;gilapy; 2k; gpujpthjpapd; mYtyf
gjpntLfspy; 1410. 1411. 1413?Mk; grypfspy; ,e;j jhth
brhj;Jf;fSf;fhd ml';fspy; ,e;jpuh kw;Wk;
nfhtpe;juh$pgps;is Mfpnahhpd; bgah;fs; khw;wg;gl;ld/
nkYk; 13/01/2004 njjpapl;l jhth brhj;Jf;fspd; 'm'
gjpntL efypYk; ,e;jpuh. g{';fhtdg;gps;is.;
nfhtpe;juh$pgps;is Mfpnahrpd; bgah;fs; Tl;lhf
gjpag;gl;Ls;sd/ 1?Mk; gpujpthjp nkw;go ,e;jpuhtplkpUe;J
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S.A.No.321 of 2021 &
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jhth brhj;Jf;fspy; 0/66 brd;l; epyj;ija[k;. 12-16
fpzw;W ghfj;ija[k; fpuak;; bgw;w gpd;dh; gl;lh
vz;/729?d;go 1k; gpujpthjpapd; bgaUf;F gl;lh. rpl;lh
khw;wg;gl;lJ/ nkYk; gl;lh vz;/884d;go jhth bc&oa{y;
fpzW r/vz;/17-7y; 1k; gpujpthjp. g{';fhtdg;gps;is. thjp
kw;Wk; gyuhkd; bgaupy; Tl;Lgl;lh rpl;lh khw;wg;gl;lJ.
Mfnt jhth brhj;Jf;fspy; 1k; gpujpthjpf;F 0/66 brd;l;
12-16 fpzw;wpy; mDgtk; cs;sJ/ 1k; gpujpthjp mtuJ
fpua gj;jpug;go 0/66 brd;l; epyk; 12-16 fpzW ghfj;ij
mDgtpj;J tUfpwhh;/ Mdhy; btWk; 0/22 brd;l; epyk;. 4-
16 fpzW ghfk; cs;s thjp jhth bc&oa{y; bkhj;j
brhj;Jf;fis mDgtpg;gjhff;Twp ePjpkd;wj;ij Vkhw;wp
jhth bjhlh;e;J. cj;jut[ bgw;Ws;shh;/ mJ ePff
; g;gl
ntz;oaJ MFk;. jhtht[k; js;Sgo bra;ag;gl ntz;Lk;/'
4. Before the trial Court, as many as 28 documents were marked
(Exs.A1 to A28) and one witness (PW1) was examined. On the side of
defendants, 5 documents were marked (Exs.B1 to B5) and two witnesses
(DW1 and DW2) were examined. An Advocate Commissioner was
appointed. This Advocate Commissioner, post local inspection, filed a
report and a sketch, which have been marked as Exs. C1 and C2
respectively. The trial Court framed issues and after full contest dismissed
the suit in and by a judgment and decree dated 18.12.2015. To be noted,
this is a common judgment in O.S.No.123 of 2013 also (as would be evident
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
from the narrative thus far captioned main second appeal arises from
O.S.No.124 of 2013).
5. Be that as it may, O.S.No.123 of 2013 has been filed by the third
defendant. This Court also notices that third defendant was impleaded in
the appellant's suit on 10.03.2011 and as far as O.S.No.123 of 2013 filed by
the third defendant is concerned, that is for an injunction against alienation
qua 22 cents from and out of the aforementioned 88 cents. The prayer in
O.S.No.123 of 2013, as can be culled out from the judgment of the trial
Court, reads as follows:
'mry; tHf;F 123-2014 thjpahy;. Jhth @ [email protected]
bc&oa{y; brhj;jpy; 0/88 brd;oy; thjpapd; 0/33 brd;l;
ghfj;jij 1k; gpujpthjp vt;tpj $f;Fge;jp Fwpg;gplhky;
ahUfkFk; ghujpdKk; bra;af;TlhJ vd epue;ju
jila[j;jut[ ghpfhuj;jpw;fhft[k;. jhth brhj;J Fwpj;J
1k;//////// '
6. Learned counsel for appellant submitted that the prayer of the third
defendant in O.S.No.123 of 2013 is for entire 88 cents, but this Court is
unable to agree as the plain language is very clear. To be noted, there is no
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
disputation that vide the common judgment O.S.No.123 of 2013 has been
dismissed.
7.In so far as O.S.No.124 of 2013 filed by the plaintiff is concerned, it
was partly decreed i.e., decreed to the extent of 22 cents though the prayer
was for 88 cents (0.26.5 ares). The appellant in captioned second appeal
carried the matter in appeal by way of a regular first appeal under Section
96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) to
'Subordinate Judges Court, Cheyyar in Thiruvannamalai' ('first Appellate
Court' for the sake of brevity) and the first appeal has taken the same on file
as A.S.No.14 of 2018. After full contest, this regular first appeal was
dismissed by the first Appellate Court in and by a judgment and decree
dated 30.07.2020. It is in this backdrop that the lone plaintiff in O.S.No.124
of 2013 has come up with the captioned second appeal.
8. Learned counsel submits that this Court should mould the relief
and protect the possession of the appellant with regard to 88 cents. This
Court finds this is unacceptable primarily because that would tantamount to
travelling beyond the scope of Section 100 CPC and more importantly, it
would tantamount to travelling beyond the prayer in the plaint. Prayer in
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
the plaint is for an injunction restraining the second defendant jurisdictional
Tahsildar from transferring patta in favour of the third defendant. Prayer in
the plaint as can be culled out from the case file placed before this Court
reads as follows:
'm/ thjpf;F jhth brhj;Jf;fspy; cs;s
chpikia tpsk;g[if bra;a[k;gof;Fk;. jhth
brhj;Jf;fs; thjpapd; RthjPd mDgtj;ij 3k;
gpujptjpnah my;yJ mtuJ Ml;fnsh jil bra;ahky;
,Uf;f xU epue;ju jil cj;jut[ gpwg;gpf;Fk;gof;Fk;.
M/ jhth brhj;Jf;fspd; kPjKs;s gl;lhit 3k;
gpujptjp bgaUf;F 2k; gpujptjp bgah; khw;wk; bra;af;
TlhJ vd xU epue;ju jil cj;jut[
gpwg;gpf;Fk;gof;Fk;,
,/ thjpf;F ,j;jhth brytpid gpujpthjpfs;
fl;og;bfhLf;Fk;gof;fk;.
</ ,d;Dk; fdk; nfhh;ll
; hh; mth;fSf;F njhd;Wk;
,ju ghpfhu';fs; midj;Jk; thjpna mila[k;gof;Fk;
xU jPh;g;g[ tH';f ntz;Lkha; thjp guk; tzf;fkha;
; pf;fg;gLfpwJ/'
gpuhh;jj
9. Under the aforesaid circumstances, this Court cannot examine the
possibility of granting injunction qua possession with regard to suit property
in a second appeal arising out of the aforementioned prayer. The first
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Appellate Court has also sustained the findings of the trial Court on the
basis of documentary and oral evidence before it.
10. In the light of the plea and in the light of the narrative thus far,
this Court has no difficulty or hesitation in coming to the conclusion that no
substantial question of law arises in the captioned second appeal. For
testing whether a substantial question of law arises in the captioned second
appeal, this Court has perused the 5 questions proposed in the memorandum
of grounds of appeal and applied the principles governing the expression
'substantial question of law' which is not defined in CPC, but explained by
Courts in long line of authorities. First of these authorities is Rimmalapudi
Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And
Others reported in AIR 1951 Madras 969] wherein a Hon'ble Full Bench of
Madras High Court explained the expression 'substantial question of law'.
A decade later this was affirmed by a Constitution Bench in Chunilal
V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co.
Ltd., reported in AIR 1962 SC 1314. Therefore the ingredients which go to
constitute substantial question of law and what is meant by substantial
question of law within the contours and confines of Section 100 CPC were
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first explained by Hon'ble Full Bench of this Court. Post Century Spinning
and Manufacturing case, Hon'ble Supreme Court in Santosh Hazari case
[Santosh Hazari Vs. Purushottam Tiwari (Deceased) By Lrs. reported in
(2001) 3 SCC 179] has affirmed this position and this is the obtaining
position of law as of today. 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 :
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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 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.'
11. Hon'ble Supreme Court in Kirpa Ram case [Kirpa Ram
(Deceased) through Lrs. Vs. Surendra Deo Gaur and Others reported in
2020 SCC Online Sc 935] has made the position clear that a second
Appellate Court while exercising powers under Section 100 can dismiss a
second appeal at the admission stage without formulating a substantial
question of law, if none arises in the matter.
12. 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 combine 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 (concurrent) and arguments. The decision
thereon i.e., decision on this point for determination is an answer in the
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S.A.No.321 of 2021 &
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negative which is set out infra and reasons for this decision have been
articulated supra.
13. In the light of the narrative thus far and more particularly in the
light of the plea that have been made there is no hesitation in coming to the
conclusion that no substantial question of law as proposed or in otherwise
arises in the case on hand and therefore the second appeal is dismissed.
C.M.P.No.6304 of 2021 is also consequently dismissed. There shall be no
order as to costs.
08.04.2021
Speaking order: Yes/No
Index: Yes/No
gpa
To
1.The Subordinate Judge
Cheyyar, Tiruvannamalai District
2. The Principal District Munsif
Cheyyar, Tiruvannamalai District
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S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
M.SUNDAR.J.,
gpa
S.A.No.321 of 2021 &
C.M.P.No.6304 of 2021
08.04.2021
https://www.mhc.tn.gov.in/judis/
