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2011 DIGILAW 2702 (MAD)

T. M. Sornam v. Kamalam

2011-06-09

G.RAJASURIA

body2011
JUDGMENT :- 1. This Second appeal is focussed by the original plaintiffs 2 and 3, animadverting upon the judgment and decree dated 31.01.2011 passed in A.S.No.179 of 2008 (A.S.No.16 of 2004-Sub Court, Namakkal, A.S.No.3 of 2007-District Court, Namakkal) by the learned Subordinate Judge, Tiruchengode, in partly allowing the judgment and decree of the learned District Munsif, Tiruchengode in O.S.No.280 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The appellants/plaintiffs 2 and 3 and also the deceased plaintiff, namely T.C.A.Manickam, filed the suit seeking permanent injunction as against Kamalam/R1 and the Commissioner/R2 on various grounds, virtually contending that the plaintiffs are entitled to the suit property as absolute owners by virtue of the codicil executed by their propositus, namely Pachiammal. (b) The trial Court felt that the plaintiffs should file a regular suit for declaration of the title and for injunction and after holding so it simply granted three months' time for it, which in my opinion was without any rhyme or reason. (c) Whereupon, the plaintiffs themselves preferred appeal and the appellate Court dismissed the appeal and also erased the said granting of three months' time by the trial Court. Being aggrieved by and dissatisfied with the judgments of both the Courts below, this Second Appeal has been focussed on various grounds suggesting the following substantial questions of law: "(a) Whether the plaintiffs' suit for permanent injunction without seeking declaration of title is maintainable under law? (b) Whether the First Appellate Court is correct in law in reversing the decree granted in favour of the plaintiff who has filed the appeal against the disallowed portion of the trial Court decree in the absence of any appeal/cross appeal at the instance of the defendants? (c) Whether the Courts below committed an error in exclusively deciding the disputes relating to title under Ex.A1 and Ex.B1 in the suit for permanent injunction particularly when there were no issues to decide the same?" (extracted as such) 4. At the outset, I fumigate my mind with the following decision of the Hon'ble Apex Court: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. At the outset, I fumigate my mind with the following decision of the Hon'ble Apex Court: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 5. A mere poring over and perusal of those excerpts including the whole judgment would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below failed to apply the correct law, the question of interference in the Second Appeal does not arise. 6. It is therefore, just and necessary to find out as to whether any substantial question of law is involved in this matter. 7. The learned counsel for the appellants would implore and entreat that even though the plaintiffs are under the necessity to file a suit for getting their title declared and also for consequential relief, yet the appellate Court was not justified in nullifying the limited relief granted by the trial Court, and that too despite the defendants did not choose to file any appeal. I would like to point out that the very granting of three months' time so as to enable the plaintiffs to file a regular suit for declaration and injunction on the part of the trial Court itself, is without jurisdiction and that is not contemplated under law. I would like to point out that the very granting of three months' time so as to enable the plaintiffs to file a regular suit for declaration and injunction on the part of the trial Court itself, is without jurisdiction and that is not contemplated under law. The appellate Court, when it was seized of the matter, of course at the instance of the unsuccessful plaintiffs themselves, still had the jurisdiction to rectify the mistake committed by the trial Court and there could be no quarrel over such a proposition. 8. A perusal of the records would reveal that there is some title dispute between the plaintiffs and the said Kamalam/R1 and understanding the same alone, the Courts below held that the proper course for the plaintiffs is to file a comprehensive suit seeking appropriate relief. Hence, in such a case, no substantial question of law is involved in this matter and there is no merit in the Second Appeal. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 9. The learned counsel for the plaintiffs would make an extempore submission that the intended suit for declaring the title and for injunction, should not be treated as one barred by res judicata. In view of the present submission, I would like to clarify that nowhere both the Courts below held in that manner and the present suit is entirely different from the intended suit for declaration and for injunction and even by phantasmagorical thoughts, one cannot say that the principle of res judicata could be invoked in such a case.