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2013 DIGILAW 1098 (MAD)

Puttu @ Periyasamy v. Mudali @ Nanjappan

2013-02-25

G.RAJASURIA

body2013
JUDGMENT 1. This Second appeal is focused by the original defendants animadverting upon the judgment and decree dated 04.04.2008 passed in A.S.No.17 of 2000 by the Subordinate Judge, Dharmapuri, confirming the judgment and decree of the District Munsif cum Judicial Magistrate Court, Palakode in O.S.No.846 of 1995. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal at the entertaining stage itself would run thus: (a) The respondent herein filed the suit for declaration and for recovery of possession on the ground that earlier there was a suit filed by the same plaintiffs in O.S.No.276 of 1985 in the District Munsif Court, Krishnagiri for declaration and injunction; whereupon, in that the appellants herein also happened to be the defendants. The suit was decreed, as against which the appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court. Thereafter, E.P. was filed. In that E.P., the judgment debtors, so to say, the appellants herein made a supine endorsement that they would not violate the decree. However, quite antithetical to what they committed themselves in black and white, they did choose to barge into the suit property and occupy the same, which necessitated the plaintiff to file a regular suit for declaration and eviction. (b) The defendants resisted the suit by filing the written statement. (c) The trial Court framed the relevant issues. (d) Up went the trial, during which the plaintiff/Mudali examined himself as P.W.1 and Exs.A1 to A5 were marked; and the second defendant/Chinnasamy examined himself as D.W.1 along with D.Ws.2 to 4 and Ex.B1 was marked. 4. Ultimately the trial Court decreed the suit, as against which the appeal was filed by the same appellants herein, for nothing but to be dismissed, confirming the judgment and decree of the trial Court. 5. Being aggrieved by and dissatisfied with the said judgments and decrees of the Courts below, this Second Appeal is focused on various grounds and also suggesting the following substantial questions of law: "(1) Whether the Appellate Court is correct, in coming to the conclusion that the present suit is not affected by Res Judicata? 5. Being aggrieved by and dissatisfied with the said judgments and decrees of the Courts below, this Second Appeal is focused on various grounds and also suggesting the following substantial questions of law: "(1) Whether the Appellate Court is correct, in coming to the conclusion that the present suit is not affected by Res Judicata? (2) Whether it is fair and correct on the part of the Appellate Court, in not observing that the present suit is bad for non-joinder of necessary parties? (3) Whether it is fair and correct on the part of the Appellate Court in coming to the conclusion that, the plea of the plaintiff is proved upto the satisfaction of the trial Court? (4) Whether it is fair and correct on the part of the Appellate Court in ignoring a well established principle of law that, it is the plaintiff who has come to the Court, has to discharge the burden of proof? (5) Whether the Appellate Court and the Trial Court are correct in coming to the conclusion that defendants have not discharged their burden of proof? (6) Whether the burden of proof is duly discharged by the plaintiff? (7) Whether the Decree in O.S.No.276 of 1985 and in A.S.No.16 of 1990 have become not enforceable, infructuous, in view of the fact that the defendants were in possession and enjoyment of the suit property ever since the year 1978?" (extracted as such) 6. The learned counsel for the appellants would pyramid his argument, by contending that the earlier suit would operate as res judicata and over and above that, the vendors of the second appellants, namely the brothers of the plaintiffs, were not added and without even referring to the sale deeds in the name of D1 to D3 herein, so to say the second appellants, both the Courts below simply discarded, belittled and ignored the case of the defendants, warranting interference in the Second Appeal. 7. A mere running of the eye over the records available would connote and denote, exemplify and demonstrate that indubitably and indisputably, in the earlier suit a decree was passed declaring the title of the plaintiff and injunction as against the second appellants herein and also their vendors. 7. A mere running of the eye over the records available would connote and denote, exemplify and demonstrate that indubitably and indisputably, in the earlier suit a decree was passed declaring the title of the plaintiff and injunction as against the second appellants herein and also their vendors. When such was the position, there was some attempt on the part of the second appellants herein to violate the order of injunction, whereupon E.P. was filed by way of executing the injunction decree at that time. It is also clear that they made the endorsement that they would not violate the injunction order, however, quite contrary to that, they barged into the land and occupied it, which alone necessitated the plaintiff to file the suit for declaration and for recovery of possession and both the Courts below au fait with law and au courant with facts taking note of all aspects of the matter, held that absolutely there was no merit in the defense and accordingly, decreed the suit. I could see no substantial question of law involved in this matter. 8. I would like to fumigate my mind with the following decision of the Hon'ble Apex Court: 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N. Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) As such, applying the aforesaid dictum if the facts are analysed, it is clear that declaration of plaintiff's title is concerned, it had attained finality even in the previous litigation. In view of the fact that subsequently the second appellants barged into the suit property, it necessitated the plaintiff to file once again a suit for declaration and for recovery of possession, which cannot be found fault with. Accordingly, this Second Appeal is dismissed No costs. Consequently, connected miscellaneous petition is closed.