Madras High Court
V.Selvaraj vs S.Devarajan on 16 July, 2021
S.A.No.524 of 2021 and
CMP.No.10642 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.07.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
S.A.No.524 of 2021
and
CMP.No.10642 of 2021
V.Selvaraj
S/o.Varadappa Naicker
... Appellant
Vs.
1. S.Devarajan
S/o.Sadayandi
2. Pachaiyammal
W/o.Devarajan
3. N.Uvaraj Kumar
S/o.Nanjundaiyyer
... Respondents
Prayer: Second Appeal has been filed under Section 100 of Code of Civil
Procedure, 1908 against the Judgment and Decree of the learned
Subordinate Judge, Kanchipuram dated 28.09.2018 made in A.S.No.33 of
2014 confirming that of the learned Principal District Munsif,
Kanchipuram dated 28.08.2014 made in O.S.No.111 of 2009.
For Appellant : Mr.S.Saravanakumar
For Respondents : Mr.P.Chandrasekar
***
JUDGMENT
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Age of the lis, which has led to the captioned Second Appeal is more
than twelve years, as a plaint was presented by 'sole appellant in this
Second Appeal Court' [hereinafter 'plaintiff' for the sake of convenience and
clarity] on 31.03.2009 and the same was taken on file as O.S.No.111 of
2009 on the file of 'Principal District Munsif's Court, Kanchipuram'
[hereinafter 'trial Court' for the sake of convenience and clarity].
'Respondents 1 to 3' in the captioned Second Appeal were arrayed as
'defendants 1 to 3' respectively in the trial Court and therefore, 'respondents
in the captioned second appeal' shall hereinafter be collectively referred to
as 'defendants' and as 'first defendant, second defendant and third
defendant' wherever appropriate and deemed necessary for the sake of
convenience and clarity.
2. Aforementioned suit in the trial Court was filed with a prayer for
bare injunction qua possession with regard to plaint schedule property
which is 'vacant land admeasuring 37 feet East to West and 215 feet North
to South [7955 sq.ft in all] being Gramanatham land comprised in Survey
No.238/1 A1 in Sevilimedu Village, Brahmin Street, Kanchipuram Taluk,
Kanchipuram District' [hereinafter 'suit property' for the sake of
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convenience and clarity].
3. It is seen from the pleadings in the plaint that it is plaintiff's case
that the suit property is his ancestral property and that his predecessors in
title were in possession and enjoyment of the suit property using the same
as cattle shed besides using it for parking two wheelers and tractors. It is
also the specific pleading of plaintiff that predecessors in title and plaintiff
are in possession of the suit property for well over the statutory period qua
perfecting title by adverse possession and it is also the pleading of the
plaintiff that plaintiff's property is adjacent to, abutting and contiguous with
the suit property on the Western side. Plaintiff was visited with a caveat
lodged by defendants and this caveat became a trigger for the
aforementioned suit. The defendants entered appearance, a written
statement was filed in August of 2009 and the suit was contested primarily
on the pleadings that suit property originally absolutely belonged to Late
A.Veeraraghava Achariyar (Son of V.Rajagopala Achariyar) who are
natives of Sevilimedu Village, there was a exchange deed dated 13.08.1946
being registered exchange deed (document No.3807/1946 on the file of
jurisdictional Sub Registrar being Sub Registrar, Kanchipuram) pursuant to
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which Veeraraghava Achariyar was in peaceful possession and enjoyment
of the suit property until his demise. It is the further case of the defendants
that the said Veeraraghava Achariyar died intestate on 09.02.1966 leaving
behind his wife, son and three daughters as legal heirs and the suit property
devolved on his son Krishnan and three daughters, they were in peaceful
possession and enjoyment by putting up a thatched superstructure thereon
and as per oral partition and allotment between the sharers suit property fell
to the shares of son Krishnan, who along with his sisters jointly sold the
front portion of the same with a narasam and thatched shed in favour of
first defendant vide a registered sale deed dated 08.12.2008, middle portion
in favour of second defendant vide another sale deed of even date and the
remaining portion in favour of third defendant vide another registered sale
deed. To be noted, registered sale deeds in favour of first defendant,
second defendant and third defendant have been marked as Exs.B7, B8 and
B23 respectively.
4. Trial Court framed three issues and parties went to trial on the
three issues framed by trial Court. Three issues framed by trial Court are
captured in paragraph 4 of the judgment of trial Court and the same reads
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as follows:
'4. The following issues are framed for trial:
1. Whether the plaintiff is in possession and enjoyment of the
suit property?
2. Whether the plaintiff is entitled for permanent injunction
from in any way interfering with his possession as prayed
for?
3. To what relief?'
5. In the considered view of this Court, issue no.1, which turns on
whether plaintiff is in possession and enjoyment of the suit property is the
most critical and clinching issue as in a suit for bare injunction, a plaintiff
has to necessarily establish that he/she was in possession of the suit
property on the date of the suit which is 31.03.2009 in the case on hand.
6. After full contest, trial Court in and by judgment and decree dated
28.08.2014 dismissed the suit. Defendants 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] vide A.S.No.33 of 2014 on
the file of 'Subordinate Judge's Court, Kanchipuram' [hereinafter 'First
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Appellate Court' for the sake of convenience and clarity] and the First
Appellate Court, after full contest, dismissed the appeal confirming the
judgment and decree of trial Court. This is vide judgment and decree dated
28.09.2018 made by the First Appellate Court.
7. A careful perusal of judgment of trial Court reveals that two
witnesses were examined on the side of plaintiff [plaintiff examined himself
as PW1], likewise two witnesses were examined on the side of defendants
[first and third defendants examined themselves as DW1 and DW2
respectively], five documents were marked on the side of plaintiff [Exs.A1
to A5] and on the side of defendants, Exs.B1 to B24 were marked.
8. Five exhibits marked on the side of plaintiff are as follows:
'List of exhibits on plaintiff's side:
Ex.A1/9.3.2009 Copy of notice issued by plaintiff to
defendants
Ex.A2/-- Returned cover by 1st defendant
Ex.A3/-- Returned cover by 2nd defendant
Ex.A4/-- Returned cover by 3rd defendant
Ex.A5/7.8.1995 Xerox copy of the sale deed in favour of the
plaintiff '
9. It is clear that the Ex.A5 alone is a sale deed and if at all and if
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that be so, this document can be title deed, but that pertains to another
property. There will be discussion about this infra elsewhere in this
judgment. On the side of the defendants, as already alluded to supra
Exs.B7, B8 and B23 would need appreciation and there will be a
discussion about this infra.
10. Trial Court on appreciation of evidence returned a finding of fact
that Ex.A5 does not pertain to the suit property but it pertains to plaintiff's
property lying on the eastern side of suit property and came to the
conclusion that plaintiff has not established that he was in possession of
suit property on the date of suit. Four paragraphs of judgment of trial
Court in running page 19 of the paper book is of relevance and the same
reads as follows:
'Whereas, the sale deeds of the defendants under Ex.B7, B8
and B23 shows that east to west measurement is 27 feet + 9 feet
common passage. Therefore the east to west measurement in
Ex.B7, B8 and B23 does not tally with the exchange deed. On the
other hand, the boundaries given in the exchange deed under
Ex.B1 and also the plaintiff sale deed under Ex.A5 tallies and
from the boundaries mentioned in the exchange deed under Ex.B1
and the boundary under Ex.A5, this Court is able to understand
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that the suit property is situated on the eastern side of Ex.A5
property.
It is settled law that when there is dispute with regard to
measurement the boundaries would prevail. Therefore the
documents Ex.B11 to B22 cannot be discussed or looked in to the
present case because it has been obtained by the 1 st defendant
after the filing of the present suit.
As stated earlier, P.W.1 in his evidence has clandestinely
admitted that there is dispute with regard to the tile between the
plaintiff and defendant even as prior to the filing of the suit. The
plaintiff even in his plaint has stated that the defendants are
claiming wrongful title over the suit property, it is the duty of the
plaintiff to file the suit for declaration of title. On that ground,
also the present suit fails.
Therefore, in view of the foregoing reasons and
discussions, this Court holds that the plaintiff has miserably failed
to prove his possession and enjoyment of the suit property, by way
of producing an acceptable oral and documentary evidence.
Hence issue No.1 to 3 are answered against the plaintiff and in
favour of the defendants.'
11. Above articulation of judgment of trial Court speaks for itself
there is nothing before this Court to demonstrate perversity regarding the
above and it is unexceptionable.
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12. Thereafter, when the non suited plaintiff 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], the First Appellate
Court also returned findings regarding title and the articulation of First
Appellate Curt runs as follows:
'......... Plaintiff has not been able to establish the ancestral
nature of the property through revenue documents. When he
pleads that the property is his ancestral property, he cannot rely
upon sale deed in his name. Further, he admits before this Court
that Ex.A5 pertains to Plot No.6 and the suit property is in Plot
No.7.'
13. Articulation of First Appellate Court regarding evidence reads as
follows:
'........ The plaint schedule property lies to the east of Kandasamy
Chettiar's property. P.W.1 admits that he does not have any
document to prove that his ancestors enjoyed the property. He
admits that he does not have tax receipts to establish that he is in
possession of the property. He has stated that he has dispute
with the defendants with respect to the suit property for 10 years.
He has stated that the defendants are attempting to enjoy the suit
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property for 6 years, but he has not given complaint in the police
station. The suit property has been shown as vacant site in the
schedule, the plaintiff has stated in the evidence before this court
that there is a cow shed in the schedule property.'
14. Captioned Second Appeal is listed today under the cause list
caption 'FOR ADMISSION'. Mr.S.Saravanakumar, learned counsel for
appellant and Mr.P.Chandrasekar, learned counsel, who has lodged caveat
on behalf of three defendants are before this virtual Court.
15. The submissions of learned counsel for appellant were twofold
and the same are as follows:
(a) Courts below should have noticed that Ex.A5 title
deed has been produced by plaintiff.
(b) Suit property is Gramanatham land and this cannot
be put against the plaintiff qua title to suit property.
16. This Court carefully considered the submissions made by learned
counsel for appellant. A careful perusal of judgements of trial Court and
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First Appellate Court bring to light that Ex.A5 pertains to another property
of plaintiff lying on the Eastern side of suit property and it does not pertain
to suit property.
17. Regarding Gramanatham argument, this Court reminds itself that
captioned suit is a bare injunction suit and as already alluded to supra, the
most critical point is whether the plaintiff was in possession of suit property
on the date of suit, (31.03.2009 in the case on hand). Therefore, except
Ex.A5, there is no other document regarding possession of the plaintiff on
the date of the suit qua suit property, which is a vacant land where
possession follows title principle applies and lone exhibit in this regard i.e.,
Ex.A5 pertains to some other property (not suit property). This draws the
curtains on Gramanatham classification point as there is no need to dilate
or delve any further into this.
18. As there is no disputation that the suit property is vacant land,
the well settled principle that possession follows title would operate.
Plaintiff should have established possession by establishing his title. To be
noted, in this regard, defendants have in their pleadings raised the issue
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that plaintiff ought to have filed a title suit, but it is not necessary to delve
into those aspects of the matter considering that this is a legal drill under
Section 100 of CPC, which turns on substantial question law.
19. This Court, having dealt with the aforementioned submissions of
learned counsel for appellant, now turns to the questions which have been
proposed as substantial questions of law by protagonist of captioned
Second Appeal and the same as culled out from the Memorandum of
Grounds of Appeal read as follows:
'SUBSTANTIAL QUESTIONS OF LAW
(a) Whether the courts below were right in dismissing the
suit for injunction, when the appellant had established his
possession, and the possession of the suit property by the
appellant had been admitted by the defendants?
(b) Whether the Courts below are right in ignoring the
Exhibit A-5 produced by the appellant while considering the
question of granting injunction?
(c) Whether the Courts below are right in holding that the
suit for bare injunction is not maintainable without seeking relief
of declaration of title when the title itself is admitted by the
defendants?'
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20. To test whether the above are substantial questions of law and as
to whether they are substantial questions of law arising in the case on hand,
this Court reminds itself about the celebrated Sir Chunilal Mehta's
judgment, which is otherwise Century Spinning Mills case being Sir
Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and
Manufacturing Co., Ltd., reported in AIR 1962 SC 1314, wherein a
Constitution Bench of Hon'ble Supreme Court elucidatively explained the
expression 'substantial question of law' occurring in Section 100 CPC. In
this Constitution Bench judgment of Hon'ble Supreme Court, the view
taken by a Full Bench of this Court in Rimmalapudi Subba Rao's case
[Rimmalapudi Subba Rao Vs. Noony Veeraju and others reported in AIR
1951 Mad 969 (FB)] was reiterated.
21. Thereafter, the same principle was reiterated in a long line of
authorities vide (i) Santosh Hazari case [Santosh Hazari Vs.
Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179];
(ii) Hero Vinoth case (Hero Vinoth Vs. Seshammal reported in (2006) 5
SCC 545); (iii) Syda Rahimunnisa Vs. Malan Bi (dead) by legal
representatives and another reported in (2016) 10 SCC 315 and
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ultimately Nazir Mohamed Vs. J.Kamala and others, which was rendered
as recently as 27.08.2020 and reported in (2020) SCC OnLine SC 676.
Most relevant paragraphs in Nazir Mohamed's case are 29 to 37 and the
same read as follows:
'29. 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
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.”
30. In Hero Vinoth v. Seshammal , this Court referred
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to and relied upon Chunilal v. Mehta and Sons (supra) and
other judgments and summarised the tests to find out whether
a given set of questions of law were mere questions of law or
substantial questions of law.
31. The relevant paragraphs of the judgment of this Court
in Hero Vinoth (supra) are set out herein below:-
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- 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
2(2006) 5 SCC 545 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,
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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 fact of the case it
would not be a substantial question of law.
32. 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.
33. 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.
34. Where no such question of law, nor even a mixed
question of law and fact was urged before the Trial Court or the
First Appellate Court, as in this case, a second appeal cannot be
entertained, as held by this Court in Panchagopal Barua v.
Vinesh Chandra Goswami.
35. 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 Tiwari.
36.In a Second Appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact is
not open to challenge in second appeal, even if the appreciation
of evidence is palpably erroneous and the finding of fact
incorrect as held in Ramchandra v. Ramalingam . An entirely
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new point, raised for the first time, before the High Court, is not
a question involved in the case, unless it goes to the root of the
matter.
37. The principles relating to Section 100 CPC relevant
for this case may be summarised thus:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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
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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 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.'
22. If the above principles are applied qua determinants as to what
the expression 'substantial question of law' occurring in Section 100 CPC
means, it is clear that nothing that is res integra, nothing that is debatable
arises. Likewise, there is nothing to demonstrate that any well settled
principle of law has been disregarded. On the contrary, this Court is of the
view that well settled principles regarding proving possession qua vacant
land and well settled principles regarding bare injunction suits have been
strictly adhered to and followed. Like wise there is nothing to demonstrate
that law has been misapplied in appreciating any piece of evidence. To be
noted, there is already discussion regarding Ex.A5 and the finding that the
trial Court has come to conclusion that Ex.A5 pertains to a property other
than suit property elsewhere supra in this judgment, but there anything
before this Court to demonstrate that there is anything perverse or so
perverse that the conclusion would have been a bipolar opposite absent
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such error. Therefore, this Court has no hesitation in coming to the
conclusion that no substantial question of law arises in the captioned
Second Appeal.
23. This Court reminds itself of Kanailal principle being law laid
down by Hon'ble Supreme Court in Kanailal and others Vs. Ram
Chandra Singh and others reported in (2018) 13 SCC 715, wherein, it
was held that principles of Order XLI Rule 31 of CPC stand telescoped into
a Section 100 legal drill. Therefore, this Court deems it appropriate to set
out and say that the sole point for determination which arises in the case on
hand is whether the principles for establishing possession qua a bare
injunction suit where the suit property is vacant land have been followed
and if the answer is not in the affirmative whether any substantial question
of law arises in the case on hand. With regard to first limb of point for
determination, the answer is clearly in the affirmative for various reasons
delineated supra. Therefore, second limb of point for determination is
flattened. However, second limb of point for determination has also been
examined and answered in the negative supra.
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24. This takes us to Kirpa Ram principle being law reiterated by
Hon'ble Supreme Court in the recent judgment in Kirpa Ram Vs. Surendra
Deo Gaur reported in 2020 SCC OnLine SC 935. Kirpa Ram principle is
to the effect that a second appeal can be dismissed at the admission stage
without formulating a substantial question of law if none arises. Drawing
inspiration from the Kirpa Ram principle, in the light of the narrative
discussion and dispositive reasoning thus far, this Court is of the view that
captioned second appeal deserves to be dismissed saying no substantial
question of law arises.
25. As a sequitur to the narrative thus far, captioned Second Appeal
is dismissed at the admission stage. Considering the nature of the matter
and considering the submissions made at the virtual hearing, there shall be
no order as to costs. Consequently, connected CMP being CMP.No.10642
of 2021 is also dismissed.
16.07.2021
Speaking order: Yes/No
Index: Yes/No
kmi
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To
1. The Subordinate Judge,
Kanchipuram.
2. The Principal District Munsif,
Kanchipuram.
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M.SUNDAR.J.,
kmi
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and CMP.No.10642 of 2021
16.07.2021
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