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2009 DIGILAW 702 (MAD)

Devaraji v. Poonurangam & Others

2009-03-11

G.RAJASURIA

body2009
Judgment This second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 211. 2007 passed in A.S.No.30 of 2006 by the Sub Court, Thiruppathur, confirming the judgment of the trial Court, namely, District Munsif Court, Thiruppathur, Vellore District, in O.S.No.210 of 1997, which was a suit for partition. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus: The plaintiff filed the suit for partition to an extent of 1 acre 84 cents in S.No.136/4 Kadirimangalam Village, Thirupattur Taluk on the ground that the suit property along with 14 cents of land, totally measuring 1 acre 98 cents originally belonged to the mother of the plaintiff Krishnammal as per sale deed dated 20.03.1936; during her life time, she permitted D2, the brother of the plaintiff to raise construction in 14 cents of land in S.No.136/4; after the death of Krishnammal, D3 the sister of the plaintiff relinquished her right over the suit property; as such, Krishnammals three sons, namely, the plaintiff, D2 and deceased D1 represented by his legal representatives D4 to D10, were entitled to one-third share each in the suit property and they have been in possession and enjoyment of the same jointly. Pleading as above, the plaintiff filed the suit for partition for allotting his one-third share in the suit property. 3. D2 filed the written statement virtually accepting the case of the plaintiff for partition and for allotment of D2s one-third share in the suit property. 4. D3 filed the written statement contending that she already relinquished her one-fourth share in the suit property. 5. Per contra, remonstrating and refuting, denying and disputing, the averments/allegations in the plaint, D4 to D7 filed the written statement which was adopted by D8 to D10; the gist and kernel of it would run thus: Krishnammal was not the owner of the suit property as per the sale deed dated 20.03.1936 in fact, Krishnammal was entitled to an extent of 1 acre 21 cents in S.No.136/4 and the remaining extent in that Survey Number belonged to one Ramasamy. However, Krishnammal was also entitled to an extent of 69 cents in S.No.135/3 and an extent of 70 cents in S.No.139/4. D2 is not in occupation of 14 cents in S.No.136/4 on the permission of Krishnammal. The suit property is not under the joint possession of the plaintiff, D1 and D2. Around the year 1960, there was oral partition among the plaintiff, D1, D2 and D3 and in that the land bearing S.No.135/3b was allotted to the share of the plaintiff and the land bearing S.No.139/4 was allotted to the share of D2 and those are all income yielding fertile lands. However, an extent of 1 acre 21 cents in S.No.136/4 was allotted to D1 taking into consideration various factors. Ever since that time, the sharers have been in possession and enjoyment of their respective portions. Accordingly they prayed for the dismissal of the suit. 6. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A30 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and Exs.D1 to D54 were marked. 7. Ultimately, the trial Court dismissed the suit, as against which appeal in A.S.No.30 of 2006 was filed before the Sub Court, Tirupattur, Vellore District, for nothing to be dismissed by the appellate Court, confirming the judgment of the lower Court. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal is sought to be filed on various grounds and also by suggesting the following substantial questions of law: "1. Are the Courts below right in holding that the suit property is hit by the rule of partial partition especially when the respondents 3 to 9 contend that the entire family properties were already partitioned? 2. Whether the Courts below are right in holding that the suit property was already partitioned and allotted to the father of the respondents 3 to 9 especially when the patta (Exh.A2) still stands in the names of appellants and respondents?" 8. Despite printing the names concerned, none appeared. 9. 2. Whether the Courts below are right in holding that the suit property was already partitioned and allotted to the father of the respondents 3 to 9 especially when the patta (Exh.A2) still stands in the names of appellants and respondents?" 8. Despite printing the names concerned, none appeared. 9. A bare poring over and perusal of the typed set of papers including the copies of the judgments of both the Courts below would evince and expatiate, project and portray that the plaintiff contended as though the suit property described in the schedule of the plaint belonged to his mother/deceased Krishnammal as per sale deed Ex.A1 dated 20.03.1936, but both the Courts below looked askance at it for the reason that the said deed is bereft of any details relating to the suit property. However, in the absence of any rival claim or rival contentions, the Court below took it for granted that it might have belonged to Krishnammal, however, both the Courts below categorically gave a finding to the effect that absolutely there is no iota or shred, shrad or miniscule, molecular or pint-sized extent of evidence to demonstrate that in the said oral partition which was admitted by both sides, the suit property was kept unpartitioned for joint enjoyment. The lower Court correctly considering the pro et contra observed that the plaintiff examining himself as P.W.1 had not chosen to adduce any evidence much less reliable evidence to display and evince that at the time of the oral partition the suit property was set apart for joint enjoyment of all the co-sharers and that simply because patta might stand in the name of the plaintiff, even after such oral partition, there is no presumption that the suit property was under the joint enjoyment of the parties to the suit as claimed by the plaintiff. Whereas D4 to D10, the legal representatives of D1 came forward with a categorical version that in the admitted oral partition of the suit property, so to say, an extent of 1 acre 21 cents in suit S.No.136/4 was allotted to the share of D1. 10. Trite proposition of law is that the onus of proof is on the plaintiff to prove his case. The trial Court correctly commented upon the fact that the plaint is silent as silence could be relating to the oral partition. 10. Trite proposition of law is that the onus of proof is on the plaintiff to prove his case. The trial Court correctly commented upon the fact that the plaint is silent as silence could be relating to the oral partition. In the cryptic plaint, the case of the plaintiff stood projected as though the suit property described in the schedule of the property belonged to Krishnammal as per sale deed Ex.A1, that she died intestate and that it devolved upon her legal heirs. 11. It is a common or garden principle of law that any amount of evidence without pleadings should be eschewed. Here, there are neither pleadings nor evidence in support of the fact that the suit property was kept as such for common enjoyment in the oral partition. Relating to Ex.A2, the patta, the lower Court would correctly observe that simply because in the patta it was stated as a joint one, there is no presumption that the suit property continued to be in joint enjoyment despite such oral partition. The plaintiff also candidly and categorically admitted during cross examination that relating to S.No.135/3B, he has been in possession and enjoyment of that Survey Number exclusively as per patta and chitta. In fact, such admission on the part of the plaintiff supports the contention of D4 to D10 that in the oral partition the said S.No.135/3B was allotted to the share of the plaintiff. 12. The trial Court also in its judgments correctly commented upon the fact that absolutely there is no reason found set out in the evidence of the plaintiff as on what grounds the suit property alone was left out without being partitioned. The plaintiff as P.W.1 would contend that his mother Krishnammal bequeathed the land in S.No.135/3B as per a Will executed by her in consideration of he having allegedly maintained her. In this regard, his deposition would run thus: TAMIL If that be so, it is not known as to why the same Krishnammal who was claimed to be the owner of the suit property, had not chosen to allot any share in the suit property also. The preponderance of probabilities would govern the adjudication in civil cases, but here the incongruities in the plea of the plaintiff had not been clarified at all by him. The preponderance of probabilities would govern the adjudication in civil cases, but here the incongruities in the plea of the plaintiff had not been clarified at all by him. As such, both the Courts below correctly dealt with all the factual aspects and rendered their judgments warranting no interference by this Court in this Second Appeal. 13. At this juncture, my mind is redolent and reminiscent of the following decision of the Honble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it would run thus:- "17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons, Ltd., v. Century Spg.& Mfg.Co.Ltd.held that (SCR pp.557-58) "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." 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. 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 sufficing 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. Ram Ditta 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 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(Sir Chunilal case, SCR p.557) "When 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 fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "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 call 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. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving 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 court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely 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. An entirely 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. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari). 24. . . . (iii) 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 applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." One other decision of the Honble Apex Court could also be cited as under: 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd. ( AIR 1962 SC 1314 ) held that: "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." 14. It is therefore apparent and axiomatic that in the absence of any question of law, much less substantial question of law, the probability of entertaining the Second Appeal does not arise. In this case, the judgments of both the Courts below were passed on factual appreciation of the facts and figures involved in this case and in such a case, there is no scope for Second Appeal at all. Accordingly this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.