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2009 DIGILAW 779 (MAD)

Elumalai v. Hemavathy & Others

2009-03-24

G.RAJASURIA

body2009
Judgment This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 18. 2008 passed in A.S.No.3 of 2007 by the Sub Court, Chengalpet, confirming the judgement and decree dated 26. 2006 passed by the District Munsif cum Judicial Magistate, Thirukalukundram, in O.S.No.2 of 2001, which was filed for permanent injunction restraining the defendants from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus: The plaintiff/second appellant herein filed the suit seeking the following relief: "to grant permanent injunction restraining the defendants, their men, agents and servants from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property." As against which, the defendants entered appearance and filed the written statement. 3. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 along with one Nataraj as P.W.2 and Rajagopal as P.W.3 and Ex.A1 to Ex.A3 were marked. The second defendant examined himself as D.W.2 and Exs.B1 to B3 were marked on the defendants side. 4. Ultimately, the trial Court dismissed the suit. As against which, the first appeal A.S.No.3 of 2007 was filed by the plaintiff for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, the plaintiff filed this second appeal on various grounds, including the following proposed substantial questions of law: "1) Whether the Courts below are correct in dismissing the suit without considering the evidence of D.W.1 who has categorically admitted that both the appellant and the defendant are in possession and enjoyment of their respective portions purchased by them and more particularly when Ex.B2, Sale Deed reflects the suit property as the boundary on the Eastern side? 2) Whether the Courts below are correct in dismissing the suit when Ex.B2-Sale Deed has come into existence after the passing of the Final Decree in O.S.No.26 of 89 wherein the recitals and the boundaries of the schedule themselves show that the Eastern portion has been purchased by the defendants and when particularly the defendants have not proved that the lie of the lands are North-South? 3) When the courts below have got the power to modify the relief whether they are correct and just in not doing so? 4) Whether the finding of the Courts below that the relief of permanent injunction without seeking a prayer for declaration for dismissing the suit is not against the judgement reported in AIR 2007 SC 900 ?" 5. Heard the learned counsel for the appellant. 6. A bare poring over and perusal of the typed set of papers, including the judgements of both the Courts below and also the arguments of the learned counsel for the appellant would display and demonstrate, evince and expatiate that the plaintiff purchased the suit property-vide Sale Deeds-Ex.A1-dated 5. 1991, 1. 1992, 5. 1992 and 22. 1992, from one of the co-sharers of a larger extent of property, of which the suit property formed the Western portion, and he started enjoying the same exclusively. However, the defendants purchased from one other co-sharer Vide sale Deed-Ex.B2-dated, 110. 1992, the remaining Eastern portion of the undivided property. While so, between those respective vendors, viz., brother and sister, a partition suit emerged and in that suit, ultimately the Northern portion was allotted to the share of the vendor of the plaintiff and the Southern portion was allotted to the share of the defendants vendor. The fact also remains that the plaintiff happens to be one of the parties in that final decree proceedings in the said partition suit. 7. The grievance of the plaintiff herein is that the Court, in the partition suit, the Court did not divide the property by metes and bounds, on equitable grounds, incommensurate with the actual enjoyment of the respective portions by the parties concerned. Hence, the plaintiff separately filed the present suit O.S.2 of 2001 seeking injunction as against the defendants. 8. 7. The grievance of the plaintiff herein is that the Court, in the partition suit, the Court did not divide the property by metes and bounds, on equitable grounds, incommensurate with the actual enjoyment of the respective portions by the parties concerned. Hence, the plaintiff separately filed the present suit O.S.2 of 2001 seeking injunction as against the defendants. 8. The learned counsel for the second appellant/plaintiff would submit that there is a supine submission on the part of the defendants that in accordance with their respective sale deeds alone the parties to the lis have been enjoying the properties all along. 9. I am at a loss to understand as to how the metes and bounds, as found set out in the respective sale deeds Ex.A1 and Ex.B2 could be pressed into service after the emergence of the final decree in the partition suit. If at all the plaintiff was aggrieved by the allotment of the Northern portion, instead of the Western portion, he should have agitated it by preferring appeal etc. But that was not done do. Hence, I am of the considered opinion that both the Courts below, cannot be labelled as one having been unable to see the wood of the tree, but they understanding the real implications of Ex.A1 and Ex.B2 and the final decree, passed the judgement. Put simply, in view of both the Courts below au fait with law and au courant with facts decided the lis, I do not find any question of law much less substantial question of law involved in this second appeal. 10. The first proposed substantial question of law is based on the evidence of D.W.1 as well as Ex.B2. My discussion supra would highlight and spotlight that Ex.B2 is always subject to the final decree and it cannot have overriding effect on the final decree. As such, the first proposed substantial question of law does not arise. 11. The second proposed substantial question of law is concerned, it is an attempt to ignore the final decree in O.S.No.26 of 1989, as though it emerged subsequently. It is a common or garden principle of law that Ex.B2 is subject to the final decree only and it is obvious and axiomatic. Hence, the proposed second substantial question of law does not arise. 12. The 3rd and 4th proposed substantial questions of law are formal in nature. 13. It is a common or garden principle of law that Ex.B2 is subject to the final decree only and it is obvious and axiomatic. Hence, the proposed second substantial question of law does not arise. 12. The 3rd and 4th proposed substantial questions of law are formal in nature. 13. At this juncture, my mind is redolent and reminiscent of the following decisions of the Honourable Supreme Court: (i) (2006) 5 Supreme Court Cases 545 – Hero Vinoth (Minor) Vs. Seshammal, certain excerpts from its 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. . . . . . . ." 18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth 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. . . . . . 21. . . . . 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. 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. 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. 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." (ii) 2008(4) SCALE 300 – Kashmir Singh Vs. Harnam Singh And Another, an excerpt from it would run thus- 9. 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. 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." A plain reading of the above judgments would leave no doubt that unless there is substantial question of law involved in a matter, no second appeal would lie. 14. My discussion supra would connote and denote that here absolutely there is no merit in the second appeal and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.