Madras High Court

Rajeswari vs K.Jayaraj on 21 June, 2021

                                                                                          S.A.No.84 of 2019



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                      Dated : 21.06.2021
                                                           Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                      S.A.No.84 of 2019
                                                            and
                                                    C.M.P.No.1914 of 2019

                  Rajeswari
                  W/o.V.Munusamy                                                        .. Appellant

                                                                  Vs.
                  K.Jayaraj
                  S/o.Kundu                                                             .. Respondent

                            Second Appeal under Section 100 of CPC to set aside the judgement
                  and decree dated 25.09.2018 passed in A.S.No.21 of 2016 on the file of the
                  Court of Principal Sub-ordinate Court, Mayiladuthurai in confirming the
                  judgment and decree passed in O.S.No.38 of 2013 dated 29.02.2016 on the
                  file of the Court of Additional District Munsif, Mayiladuthurai.
                                    For Appellant             :         Mr.A.Muthukumar
                                    For Respondent            :         Mr.S.Sounthar
                                                            ----

                                                      JUDGMENT

Captioned Second Appeal i.e., S.A.No.84 of 2019 is listed under the

cause list caption 'FINAL HEARING CASES' today.

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2. Mr.A.Muthukumar, learned counsel on record for sole appellant and

Mr.S.Sounthar, learned counsel on record for lone respondent are before this

Court and both counsel requested that the captioned main Second Appeal

may please be heard out in this Virtual Court.

3. Case file placed before this Court brings to light that the captioned

Second Appeal was admitted on as many as four questions (substantial

questions of law) on 28.01.2019. The records of two Courts in the District

Judiciary i.e., trial Court and First Appellate Court have since been received

and the same have also been placed before this Court along with the case file.

4. In the above setting, captioned Second Appeal was taken up and

heard out.

5. The lis which has given rise to the captioned Second Appeal is more

than 8 years old as the original suit being O.S.No.38 of 2013 on the file of

the 'Additional District Munsif's Court, Mayiladuthurai' [hereinafter 'trial

Court' for the sake of convenience and clarity] was presented on 12.02.2013.

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The suit was for bare injunction qua suit property which is 40 cents of

agricultural land comprised in T.S.No.1522 in Appachavadi Village,

Thiruindalur Vattam, Mayiladuthurai Taluk, in what is now Mayiladuthurai

District [hereinafter 'suit property' for the sake of convenience and clarity].

6. After full contest i.e., after trial, the trial Court dismissed the suit

albeit without any costs in and by judgment and decree dated 29.02.2016.

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' [hereinafter

'CPC' for the sake of brevity, convenience and clarity] vide A.S.No.21 of

2016 on the file of the 'Principal Subordinate Judge's Court, Mayiladuthurai'

[hereinafter 'First Appellate Court' for the sake of convenience and clarity],

which after full contest dismissed the first appeal (confirming the dismissal

of the suit by the trial Court) vide judgment and decree dated 25.09.2018. As

against these two concurrent judgments and decrees in the aforementioned 8

year old lis, the lone plaintiff has filed the captioned Second Appeal

obviously under Section 100 of CPC.

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7. The facts are fairly simple and facts essential for appreciating this

judgement will suffice.

8. It is the case of the plaintiff that the suit property, which is

cultivable nanja lands, is in her possession, her spouse is abroad, possession

is in cultivating tenant capacity under a trust which goes by the name of AVC

Charities; that the defendant, who according to the plaintiff is a stranger qua

suit property has nothing to do with the suit property; that with the active

connivance of the persons inimical towards plaintiff's family, defendant

made an attempt to interfere with the plaintiff's peaceful possession and

enjoyment of the suit property on 04.02.2013; that this was the immediate

trigger for presenting the plaint qua aforementioned suit in the trial Court on

12.02.2013; that the sole defendant on being served with suit summons

entered appearance through counsel and filed a written statement in July of

2013; that in the written statement, pleadings of sole defendant or in other

words the burden of song regarding pleadings of the sole defendant is that

the suit property was originally cultivated by one Karunanithi (S/o.

Somasundaram) who had transferred his rights to one Kaliyammal (mother-

in-law of the plaintiff) vide document dated 11.05.1999 (Ex.B1); that post

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demise of Kaliyammal, the plaintiff's husband Munusamy had been in

cultivation; that he transferred his rights to defendant and this transfer was

for consideration; that this transfer is vide Ex.B1 which is supported by

Ex.B2 dated 21.06.1999 wherein Karunanithi had written to the trust

regarding this transfer; that on this rival pleadings, the trial Court framed two

simple issues; that parties went to trial on these issues and the plaintiff was

non suited by two successive concurrent decrees in two tiers as alluded to

supra.

9. Learned counsel for appellant opening the submissions argued that

the surrender of possession by plaintiff's husband is defendant's case and

therefore, the burden of proof was on the defendant to establish such

surrender. Learned counsel went on to submit that once this burden is not

discharged by the defendant it follows as a sequitur that the plaintiff was in

possession owing to the specific pleading of the defendant that their case is

surrender of possession by plaintiff's husband. Learned counsel also

highlighted that the depositions of DW1 and DW2 run into each other. To be

noted, this Court is informed that the sole defendant examined himself as

D.W.1 and his brother-in-law Murugan deposed as D.W.2. Learned counsel

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submitted that the Courts below erred in not holding that the burden of proof

in a case of this nature shifts to the defendant owing to the stated position of

defendant i.e., pleadings of the defendant.

10. In response to the above submissions, learned counsel for

respondent argued that the plaintiff was non-suited on three grounds and they

are (a) plaintiff failed to prove possession qua suit property (b) plaintiff has

not come to the Court with clean hands and (c) Ex.B3 to Ex.B9, which were

marked without any objections, clearly proved the rights of the defendant

K.Jayaraj. Learned counsel also went on to submit that the onus of proof

would have shifted to the defendant only on the plaintiff discharging their

initial burden regarding possession on the date of suit.

11. By way of reply, learned counsel for appellant submitted that the

exhibits being marked without objections cannot buttress the case of the

defendant as the documents by themselves cannot prove any thing.

12. This Court also had the benefit of perusing the relevant parts of the

records that have been received from the Courts below.

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13. This Court now proceeds to discuss the rival submissions,

judgments of the Courts below and give its dispositive reasoning.

14. In the trial Court, as already mentioned supra, plaintiff examined

herself as P.W.1, defendant examined himself as D.W.1, one Mani, a third

party was examined as P.W.2. As already mentioned supra, the defendant's

brother-in-law one Murugan was examined as D.W.2. One Chandrasekar,

Manager of AVC Charities was examined as D.W.3. One Srinivasan, agent of

the Trust, was examined as D.W.4 and this Court is informed that one of the

witnessess to Ex.B3 was examined as D.W.5 (Ravichandran). However, on a

perusal of the records of the Courts below (by this Court) it came to light that

Ravichandran is not a witness to Ex.B3 dated 14.07.2012 which is an

agreement between plaintiff's spouse Munusamy and defendant K.Jayaraj.

15. Trial Court on a sifting of documentary and oral evidence before it

came to the conclusion that the plaintiff has not proved that she was in

possession of the suit property on the date of filing of the suit, held Ex.B3 to

Ex.B9 stood proved and non-suited the plaintiff. The unsuccessful plaintiff,

as already mentioned supra, carried the matter in appeal by way of a regular

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first appeal under Section 96 of CPC to the First Appellate Court. In the First

Appellate Court, plaintiff took out an application in I.A.No.63 of 2016 which

is essentially under Order XLI Rule 27 CPC with a prayer to mark additional

documents which are receipts for payment of lease amount for cultivation.

16. The First Appellate Court carefully perused the receipts which

were sought to be marked as additional documents and noticed that those are

receipts dated 28.01.2015 and 15.07.2016 which means that they are post

suit. The First Appellate Court therefore, noticed that these receipts are post

suit and as the burden for plaintiff in a suit for bare injunction is establishing

possession of the suit property on the date of suit which is 12.02.2013,

negatived the additional documents marking prayer and dismissed the Order

XLI Rule 27 CPC application along with the dismissal of main first appeal

on 25.09.2018. In other words I.A.No.63 of 2016 under Order XLI Rule 27

CPC also was dismissed vide judgment and decree dated 25.09.2018 as

captured in paragraph Nos.13 & 14 of the judgment of the First Appellate

Court. This Second Appeal Court cannot take any exception to this course

adopted by the First Appellate Court as this is the law laid down by the

Hon'ble Supreme Court in Ibrahim Uddin case [Union of India v. Ibrahim

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Uddin, (2012) 8 SCC 148]. This Court is also unable to find any infirmity in

the dismissal of interlocutory application under Order XLI Rule 27 of CPC

as the receipts are post suit as alluded to earlier in this judgment. This takes

us to the main judgment. In the main judgment, the First Appellate Court in

paragraph No.18 of its judgment has neatly captured the entire lis and as to

why trial Court judgment does not warrant any interference. This paragraph

No.18 reads as follows:

                                    ',e;j     NH;epiyapy;           jhd;     vjph;thjp     jug;gpy;
                             Kd;dpWj;jg;gl;Ls;s            v/th/rh/M/1         kw;Wk;      2       I
                             ghprPypf;Fk;nghJ        xU    fUzhepjp         vd;gth;     jhth     g[y
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                             khkpahuhd       fypak;khs;      vd;gtUf;F         vGjpf;    bfhLj;j
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                             tpLtpg;g[    fojk;      vd;gJk;      bjhpatUfpwJ/            mjhtJ
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                             Fj;jif         ghj;jpak;        cs;s        brhj;ij        fypak;khs;

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                             vd;gJk;        bjhpatUfpwJ/               nkw;fz;l         Mtz';fs;
                             Fwpj;J         thjp       jug;gpy;      vt;tpj         Ml;nrgiza[k;
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                                                                           ; vjph;thjp
                             jug;gpy; Kd;dpWj;jg;gl;Ls;s v/th/rh/M/3                    kw;Wk; 4I


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                                                                                             S.A.No.84 of 2019



                             ,e;ej
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thjpahy; kD bfhLf;fg;gl;Ls;sJ vd;gJ bjhpatUfpwJ/ me;j g[fhh; fhyf;fl;lj;jpy; jhth brhj;jpd; mDgtk; vjph;thjp trk; ,Ue;J tUfpwJ vd;gij xg;g[fb ; fhz;nl nkw;fz;l g[fhh;fs;

bfhLf;fg;gl;Ls;sJ vd;gJ fz;Tlhf bjhpatUfpwJ/ ,e;j NH;epiyapy; jhd; thjpahdth; jd;Dila rhl;rpaj;jpy; ,e;j vjph;thjpf;F vjpuhf fhty; Jiwapy; g[fhh; bfhLf;fg;gl;lJ vd;gij bjspthf xg;gf [ ; bfhz;Ls;shh;/ mt;thwhd NH;epiyapy; me;j g[fhUf;fhd eltof;iffs; vjida[k; ePjpkd;wj;jpd; Kd;g[ rkh;g;gpf;fj; jtwptpl;lhh;/ nkYk;. fhty; Jiw mYtyfj;jpy; cs;s g[fhh;fisa[k; ePjpkd;wj;jpd; Kd;g[ kD jhf;fy; bra;a tutiHf;ft[k; jtwptpl;lhh;/ thjpapd; ,e;j bray;ghlhdJ cz;ik tpgu';fis ePjpkd;wk; mwpe;JtpLk; vd;gjw;fhfnt me;j Mtz';fis jhf;fy; bra;tjw;Fk;. tutiHg;gjw;Fk;

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jPh;g;g[ tH';fpa[ss ; J vd;Wk; mjpy; jiyapLtjw;F vt;tpj Kfhe;jpuKk; ,y;iy vd ,e;ej P pkd;wk; Kot[ bra;J. ,e;j nky;KiwapL mDkjpf;fj;jf;fjpy;iy vd ,e;ePjpkd;wk; ,e;j gpur;rpidf;F tpil fhz;fpwJ/'

17. Turning to dispositive reasoning of this Court, this Second Appeal

Court notices two settled legal principles. One settled legal principle is, in a

suit for bare injunction the burden of proof is on the plaintiff to establish that

the plaintiff was in possession of the suit property on the date of suit. The

second legal principle is, burden does not shift in a lis/suit but onus shifts

and at times it swings like a pendulum from one end of the lis to the other.

18. In this view of the matter, in considering the rival submissions

which have been captured supra, the onus if at all and if it be so would have

shifted to the defendant only on the plaintiff discharging the initial burden

qua possession of the suit property on the date of filing of the suit. The

narrative thus far reveals that the revenue receipts which have been pressed

into service are post suit and there is nothing to demonstrate possession of

the suit property by the plaintiff on the date of suit. More importantly, in the

pleading of the plaintiff, more particularly paragraph No.6 of the plaint, it

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has been averred that the Village Administrative Officer of the village in

which the suit property is situate has given Chitta and Adangal extracts and

that mentions that the plaintiff is a cultivating tenant in the suit property.

Paragraph No.6 of the plaint reads as follows:

'6. The plaintiff's husband is now in foreign shores and as such, the plaintiff is looking after and managing the suit property and she had also measured rent to the Trust. The VAO of the suit village has also given the Chitta and Adangal Extract and in that it has been clearly mentioned that the plaintiff is cultivating the suit property.' (Underlining made by this Court is for ease of reference)

19. However, these Chitta and Adangal extracts were never filed in the

Courts below. This would have clearly been the best pieces of evidence to

establish the possession of suit property in a case of this nature. Be that as it

may, the revenue receipts are post suit including revenue receipts which were

sought to be marked as additional documents/additional evidence by way of

an application under Order XLI Rule 27 CPC in the the First Appellate

Court. Therefore, when the plaintiff has not discharged her initial burden of

proof with regard to possession of suit property, the onus does not and did

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not shift in this case. Notwithstanding this position, the trial Court as well as

the First Appellate Court have also examined the documents which have

been filed on the side of defendant more particularly Ex.B3 to Ex.B9 and

have come to the concurrent conclusion i.e., returned findings that there has

been transfer of possession in favour of the defendant and therefore, non-

suited the plaintiff. Therefore, depositions of D.W.1 and D.W.2 running into

each other will not hold water and this being a Second Appeal Court, unless

it is demonstrated that appreciation of evidence is so perverse that absent

perversity the conclusion arrived at by the Courts below would have been the

polar opposite of the decision that has been arrived at, this Court will not

interfere. It follows that re-appreciation of evidence is forbidden in regular

cases of this nature is the rule with a few exceptions. In any event, such a

scenario does not arise owing to the reason alluded to supra and it is

nobody's case that this case falls in the exception category warranting

re- appreciation of evidence.

20. Regarding the submission that the documents being marked

without objections does not really carry the defendant much, as the

documents by themselves do not prove anything, though there can be no

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exception to the rule that the documents by themselves do not prove

anything, the fact is that there was no objection qua relevance to the marking

of the documents in the trial Court which after sifting oral and documentary

evidence held that these documents stand proved.

21. This takes us to the four questions on which the Second Appeal

was admitted on 28.01.2019 being questions propounded by the protagonist

of the captioned Second Appeal i.e., appellant as substantial questions of law

and it read as follows:

'This Second Appeal is admitted on the following substantial questions of law:

"(1) Whether the Courts below erred in law in placing the burden on the plaintiff when the defendant admits possession of the plaintiff's husband but pleads that he surrendered possession to him?

(2) Whether the Courts below erred in law in accepting the case of surrender pleaded by the defendant when he does not know about the lie of the suit property and source of irrigation for the suit lands?

(3) Whether the Courts below erred in law in accepting the case of surrender of land by the plaintiff's husband to the defendant when D.W.2 says

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that he alone had paid Rs.60,000/- to the plaintiff's husband and he surrendered possession to him?

(4) Whether the lower Appellate Court erred in law in placing reliance upon Ex.B5, alleged lease deed in favour of the defendant when D.W.3 does not support it and D.W.2 admits that it is not valid one?"

Admit. Notice.'

22. Exercising his rights under sub-section (5) of Section 100 of CPC,

learned counsel for respondent submitted that the captioned Second Appeal

does not involve aforementioned questions. Be that as it may, in the light of

the narrative, discussion and dispositive reasoning this Court carefully

perused the questions. The first question turns on whether the Courts fell in

error in placing the burden on the plaintiff when the defendant admits

possession of the plaintiff's husband but predicates her case on surrender of

possession. This Court has already (in the discussion and dispositive

reasoning supra) made it clear that burden does not shift, but the onus would

shift and that is only when the initial burden is discharged by plaintiff. In

other words, the submission of the learned counsel for respondent in this

regard is sustained. Therefore, the first question is answered against the

appellant. The second question turns on defendant's deposition. Defendant

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who deposed as D.W.1 was not able to give details with specificity about the

suit land. This Court has no difficulty in agreeing with the learned counsel

for respondent that this would not qualify as a substantial question of law

and in any event, this question cannot but be answered against the

respondent as this hardly has any relevance when the burden is on the

plaintiff to prove that she was in possession of the suit property on the date

of suit. In this regard, this Court reminds itself as to what the expression

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

expression 'substantial questions of law' occurring in Section 100 of CPC has

been explained in a long line of authorities starting from Rimmalapudi

Subba Rao case [Rimmalapudi Subba Rao Vs. Noony Veeraju and others

reported in AIR 1951 Mad 969 (FB)] to Santosh Hazari's case [Santosh

Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179]. 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 Mehta's

case, affirming the view taken by Full Bench of this Court was reiterated.

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Relevant paragraphs of Chunilal Mehta's case and Santosh Hazari's case

are paragraph Nos.6 & 12 respectively, which read as follows:

'Paragraph No.6 of Chunilal Mehta's case:

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.' Paragraph No.12 of Santosh Hazari's case:

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

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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 decision of the highest court or if the general principles

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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.”'

23. This continues to be good law having been followed in Hero

Vinoth case [Hero Vinoth (minor) Vs. Seshammal (2006) 5 SCC 545] and

as recently as on 27.08.2020 in Nazir Mohamed case [Nazir Mohamed Vs.

J.Kamala, reported in (2020) SCC OnLine SC 676]. This Court deems it

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appropriate to not to burden this judgment with further extracts on the

expression 'substantial question of law' to avoid verbosity. Suffice to say that

no debatable question or nothing to demonstrate that any settled principle of

law has been violated has been made out in the case. This takes us to the

third question which turns on surrender of the suit property when D.W.2 has

deposed that he alone paid Rs.60,000/- to the plaintiff's husband who

surrendered possession to him. As rightly pointed out by the learned counsel

for respondent, this may not qualify as a substantial question of law on the

facts and circumstances of this case as it is not a question of to whom the

possession was surrendered. The issue is, when the possession was

surrendered and whether the plaintiff was in possession on the date of the

filing of the suit.