N.Rengarajan vs S.Eswaran
2021 Latest Caselaw 9479 Mad

                                                                                S.A.No.363 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 15.04.2021
                                                      Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                S.A.No.363 of 2021
                                                       and
                                              C.M.P.No. 6756 of 2021
                                                        in
                                                S.A.No.363 of 2021

                  N.Rengarajan
                  S/o.Late Narasimma Naidu                                     .. Appellant

                                                        Vs.

                  S.Eswaran
                  S/o.Late Subramaniam                                   .. Respondent


                            Second Appeal under Section 100 of CPC to set aside the judgement

                  and decree of the learned Principal Subordinate Judge, Namakkal dated

                  05.08.2019 made in A.S.No.63 of 2016 in reversing the judgment and decree

                  of the learned Additional District Munsif Court, Namakkal dated 20.09.2016

                  made in O.S.No.470 of 2012.

                            For Appellant         :     Mr.S.Saravanakumar
                                                      ----




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                                                                                       S.A.No.363 of 2021




                                                    JUDGMENT

Captioned Second Appeal is listed under the cause list caption 'FOR

ADMISSION' today.

2. Mr.S.Saravanakumar learned counsel on record for sole appellant is

before this Virtual Court.

3. Suit property is land admeasuring 364¼ sq.ft in its entirety situate in

Old Natham S.No.71/1, New Natham S.No.422/1, Old Ward No.4, New

Ward No.5, Kottai Naicken Street, Kalappanaickenpatty, four boundaries

have also been set out in plaint schedule and this 364¼ sq.ft land shall

hereinafter be referred to as 'suit property' for the sake of convenience and

clarity. Suit is for bare injunction to protect purported possession of suit

property by plaintiff who is appellant in the captioned Second Appeal. Suit

was filed on 25.09.2012 i.e., O.S.No.470 of 2012 on the file of 'Additional

District Munsif Court, Namakkal' [hereinafter 'trial Court' for the sake of

convenience and clarity]. Sole defendant entered appearance and filed a

written statement dated 03.01.2013. A reply statement dated 02.09.2015 was

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also filed by plaintiff. Pleadings were thus completed. There was full

contest in the suit before trial Court. To be noted, full contest includes 3

witnesses on the side of plaintiff (P.W.1 to P.W.3) and 2 witnesses on the side

of defendant (D.W.1 and D.W.2). It is further to be noted, that plaintiff

examined himself as P.W.1 and defendant examined himself as D.W.1. On

the side of plaintiff as many as 8 documents namely, Ex.A1 to Ex.A8 were

marked and on the side of defendant 2 documents namely, Ex.B1 to Ex.B2

were marked. Besides this, Ex.X1 to Ex.X3 being Revenue records i.e.,

Chitta, Adangal and Field map qua suit property were marked. An Advocate

Commissioner for local inspection was appointed and a report as well as 2

sketches filed by Advocate Commissioner were marked as Ex.C1 to Ex.C3.

After full contest, trial Court decreed the suit in and by judgment and decree

dated 20.09.2016. A perusal of judgment of trial Court brings to light that

trial Court judgment is primarily predicated on a factual finding that Ex.A1

dated 24.08.1993 being patta given to plaintiff's father and Advocate

Commissioner's report in terms of extent match. Trial court has also (on the

basis of/appreciation of evidence before it) taken the view that plea of

defendant that the measurements qua suit property have been wrongly

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mentioned by the plaintiff is unacceptable. In this regard, most relevant

paragraph of judgment of trial Court is Paragraph No.13 and the same reads

as follows:

'13/ th/rh/M/1 gl;lhtpd; ,uz;lhk; gf;fj;jpy; cs;s gug;gst[ mst[fs; ePjpkd;w Mizah; jhf;fy; bra;Js;s mst[ tiuglj;jpYk; mst[fs; rhpahf cs;sJ/ gpujpthjp jug;gpy; thjp jug;gpdh; mst[fs; jtwhf Fwpg;gpl;Ls;shh;fs; vd;W TWk; Tw;wpid Vw;Fk;goahf ,y;iy/ thrh/r/3y; thjpa[k; mjidj; bjhlh;e;J Vw;gl;l th/rh/M/2 ghf Mtzj;jpd; goa[k; thjpf;F jhth brhj;jpy; chpik cs;sJ vd;Wk;. jhth brhj;jpy; j';fSf;F KG chpik cs;sJ vd;W epUg: zk; bra;Js;shh;fs;/ Mfnt jhth brhj;jpid thjp mDgtpg;gij gpujpthjpnah mtuJ Ml;fnsh ,il";ry; bra;af;TlhJ vd tHf;Fiuapy;

thjp nfhhpa ghpfhuk; mtUf;F fpilf;ff;ToaJ vd;W ,e;j vGtpdhtpw;F ,e;ePjpkd;wk; jPh;t[ fhz;fpwJ/'

4. Defendant carried the matter in appeal by way of regular first appeal

under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity]

vide A.S.No.63 of 2016 on the file of 'Principal Subordinate Court,

Namakkal' [hereinafter 'First Appellate Court' for the sake of convenience].

First Appellate Court, after full contest allowed the appeal in and by

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judgment and decree dated 05.08.2019.

5. Factual findings returned by First Appellate Court which is pivotal

basis for allowing the appeal is captured in Paragraph No.13(vi) of the

judgement of First Appellate Court and the same reads as follows:

'13(vi) In such circumstances the plaintiff relied upon Ex.A2 and A3 alone to prove their case. But the Ex.A1, Ex.X1 and Ex.X2 reveals a different story. The plaintiff was not in the possession and enjoyment of entire suit property viz., 38 square meter. Therefore, the suit for permanent injunction to an extent of 38 square meter is not maintainable that too without the relief of declaration of title and cancellation of patta in the name of defendant. Therefore, this Court comes to conclusion that as plaintiff was not in possession and enjoyment of entire suit property with an extent of 38 square meter and he is not entitled for the relief sought for. Therefore, the suit is liable to be dismissed. Thus, Point No.1 is answered accordingly.'

6. Learned counsel for appellant, submitted that 1941 sale deed

(Ex.A3) to be precise registered sale deed dated 21.05.1941, has not been

assailed by defendant in trial Court and therefore, it cannot be gainsaid that

the reduced area shown in patta can be a ground to negative the plea of

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plaintiff to protect possession qua suit property. It was also argued that

defendant has admitted that there is a compound wall and once there is a

compound wall i.e., boundary wall, it cannot be gainsaid that the extent is

different.

7. Learned counsel adverting to memorandum of grounds of appeal,

notwithstanding very many grounds and 3 questions proposed as Substantial

questions of law therein, submitted that he would project his case on 2 out of

the 3 questions namely, A and B which read as follows:

'A.Whether the lower appellate Court was right in dismissing the suit for injunction, when the plaintiff had established his possession and enjoyment based on Ex.A3 registered sale dated 21.051941, wherein the said sale deed was not objected till date?

B. Whether the lower appellate Court was right in dismissing the suit for injunction that extent of suit property has been subsequently reduced based on patta without looking into law that title documents will always prevail over the revenue records?

8. Learned counsel submits that the above 2 are substantial questions

of law which arise in the captioned Second Appeal.

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9. This Court carefully considered the submissions made by learned

counsel and perused the case file that has been placed before this Court.

10. Hon'ble Supreme Court, in Kanailal case being Kanailal and

Others Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715

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

legal drill Section 100 CPC also. Thereafter, Hon'ble Supreme Court in

Kirpa Ram case being Kirpa Ram Vs. Surendra Deo Gaur and others

reported in 2020 SCC Online SC 935, has held that if no substantial

question/s of law arise, a second appeal can be dismissed straight away at the

admission stage without formulating substantial question/s of law. A careful,

combined and conjoint reading of Kanailal case and Kirpa Ram principles

leaves this Court with the considered view that the lone point for

determination that arises in this Second Appeal is whether any substantial

question of law arises from the facts, findings, trajectory the matter has taken

and arguments advanced all of which have been captured supra. This point

for determination will be decided and the decision thereon will be set out

herein infra giving reasons for the decision.

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11. Before proceeding further with this exercise, this Court deems it

appropriate to remind itself as to what the expression 'substantial question of

law' occurring in Section 100 of CPC means. This expression 'substantial

question of law' occurring in Section 100 of CPC was first explained by a

Hon'ble Full Bench of this Court in the celebrated Rimmalapudi Subba Rao

case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in

AIR 1951 Madras 969 (FB)] and this was approved by a Constitution Bench

of Hon'ble Supreme Court in oft-quoted 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 is also

known as Century Spinning Mills case. That this Rimmalapudi Subba

Rao elucidation was affirmed by a Constitution Bench of Hon'ble Supreme

Court was neatly captured and reiterated by Hon'ble Supreme Court

subsequently in Santosh Hazari case [Santosh Hazari Vs. Purushottam

Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179]. Relevant

paragraph in Santosh Hazari's case is Paragraph No.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

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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 : 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

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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.”'

12. The aforementioned principle continue to be the obtaining position

of law qua concomitants of the expression 'substantial question of law' as it

has been reiterated more than once post Santosh Hazari case including

Malan Bi case [Syeda Rahimunnisa Vs Malan Bi (dead) by legal

representatives and another reported in (2016) 10 SCC 315].

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13. Be that as it may, in the instant case on hand, the suit is for bare

injunction. In a suit for bare injunction, all too critical question is whether

plaintiff was in possession of suit property on the date of filing of suit. In

the instant case, the suit was filed on 25.09.2012. Furthermore, as would be

evident from the narrative thus far, suit property is a vacant land and law is

equally well settled that with regard to a vacant property possession follows

title. All these turn completely on facts and more particularly, on the basis of

oral and documentary evidence before trial Court.

14. Learned counsel for appellant very fairly submits that though

Ex.A3 is sheet anchor or bedrock for plaintiff's case, subsequently the extent

of suit land has been reduced to 22 square meters in the year 1994. This

Court is informed by learned counsel that 22 square meters translates to 236

square feet. As already alluded to supra, the suit property as per plaint is

364¼ sq.ft and that translates to 38 square meters. The crux and gravamen

of lis is whether plaintiff was able to discharge his burden by demonstrating

possession of 364¼ sq.ft vacant land (38 square meters) i.e., suit property on

the date of filing of suit. The fact that this has not been done by plaintiff

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conclusively for the purpose of being entitled to an injunction is captured by

First Appellate Court in Paragraph No.13(vi) of its judgment (extracted and

reproduced supra). Learned counsel submits that the whole issue is because

of reduction of extent in patta and plaintiff has already commenced

proceedings under 'The Tamil Nadu Patta Pass Book Act, 1983' [hereinafter

'said Act' for the sake of convenience and clarity] and proceedings are

underway. Law pertaining to the said Act and proceedings therein are clear

that if plaintiff is seeking remedy with regard to extent of land having been

erroneously shown in patta, it has to be canvassed and carried to its logical

end under the said Act. In other words, question of seeking bare injunction

qua possession of entire 364¼ sq.ft does not arise absent these proceedings.

15. With regard to 2 questions proposed as substantial questions of

law, Rimmalapudi Subba Rao case as captured in Santosh Hazari case

were applied to test the same. Result is it is clear that substantial questions

of law do not arise on the facts, findings and trajectory this matter has taken

as no question that is debatable, res integra arises and it is not a case of any

disregard of settled principles. Following Kirpa Ram case an allusion to

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which has already been made supra, this Court deems it appropriate to

dismiss the captioned Second Appeal at the admission stage holding that no

substantial question of law arises and it is made clear that this dismissal will

not come in the way of proceedings under said Act which this Court is

informed has already been initiated by plaintiff and is under way. In other

words, Revenue and/or authorities can proceed with those proceedings

uninfluenced by or untrammelled by observations made herein which are for

the limited purpose of disposal of captioned Second Appeal.

16. Captioned Second Appeal dismissed holding that no substantial

question/s of law arises. Consequently, CMP is also dismissed. In the light

of the nature of the matter and nature of submissions made, there shall be no

order as to costs.

15.04.2021

Speaking/Non-speaking order Index : Yes / No Internet : Yes / No

mk

https://www.mhc.tn.gov.in/judis/ S.A.No.363 of 2021

M.SUNDAR. J

mk

To

1. The Principal Subordinate Judge Namakkal.

2. The Additional District Munsif Court, Namakkal.

S.A.No.363 of 2021

15.04.2021

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