Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1537 (MAD)

P. Jayakodi v. V. P. Andamuthu S/o. Perumal

2021-04-29

M.SUNDAR

body2021
JUDGMENT : Lis out of which captioned Second Appeal arises commenced nearly a decade ago, to be precise on 17.05.2011 when two individuals (respondents in captioned Second Appeal) presented a plaint in 'District Munsif's Court, Perundurai' ['trial Court' for brevity]. This plaint was taken on file as O.S.No.148 of 2011 and in this suit, lone appellant in the captioned Second Appeal is the sole defendant. Prayer in the suit before trial Court is for bare injunction (possession) qua suit property admeasuring 1200 sq.ft or thereabouts (111.50 sq.mtrs. or thereabouts). A perusal of the plaint schedule brings to light that the suit property is vacant land. 2. From hereon, parties shall be referred to by their respective ranks in trial Court for the sake of convenience and clarity. Therefore, respondents in captioned Second Appeal shall be referred to as 'plaintiffs' and appellant in captioned Second Appeal shall be referred to as 'defendant'. 3. It is the specific case of plaintiffs that suit property was purchased by them under a registered sale deed dated 09.09.2008, registered as document No.1996/2008 on the file of Sub Registrar's Office, Thingalur. It is also the specific case of the plaintiffs that they jointly purchased the suit property, they were put in possession on the date of purchase i.e., 09.09.2008 and the plaintiffs had also filed the original sale deed dated 09.09.2008, (which came to be marked as Ex.A1 in trial). 4. On being served with suit summons, sole defendant entered appearance through an advocate, filed a written statement dated 21.09.2011 and completed pleadings. A perusal of the pleadings of sole defendant i.e., written statement, more particularly paragraph 7 of the written statement makes it clear that the defendant does not dispute that the plaintiffs have purchased suit property under Ex.A1-Sale Deed. The pleadings of the defendant is that plaintiffs vendor one S.K.Chinnappan had purchased the suit property nearly 6 ½ months prior to alienation by him, to be precise on 18.02.2008 but the suit property actually belongs to one Sakthivel and it is in the possession of defendant from 03.04.2002. There was also a pleading that at the time of purchase by Sakthivel, there was no conversion of suit property into house site. Be that as it may, central theme of the defendant's pleading is that they are in possession of suit property and that it originally belonged to one Sakthivel. There was also a pleading that at the time of purchase by Sakthivel, there was no conversion of suit property into house site. Be that as it may, central theme of the defendant's pleading is that they are in possession of suit property and that it originally belonged to one Sakthivel. In the trial Court, second plaintiff S.Shanmugam examined himself as PW1 and the sole defendant examined herself as DW1. One N.R.Subramaniam, neighbour deposed as PW2 and one G.Thiagarajan deposed as DW-2. On behalf of plaintiffs, four exhibits namely Exs.A1 to A4 were marked and on behalf of defendant, six exhibits namely Exs.B1 to B6 were marked. However, what is of significance is, in the course of proceedings before the trial Court, an Advocate Commissioner was appointed, Advocate Commissioner made local inspection and filed a report, sketch and surveyor's sketch, which were marked as Exs.C1, C2 and C3 respectively. 5. Trial Court, on appreciation of Ex.A1 as also Exs.A2, A3 and A4, which are Patta, Adangal and A-Register respectively, came to the conclusion that plaintiffs are in possession of suit property and that the defendant, who is a third party qua suit property, is interfering with the plaintiffs' possession of the suit property. 6. Trial Court has also noticed that a small water tank was built by the plaintiffs in the suit property and this factum was not denied by the defendant. In this view of the matter, trial Court disbelieved Ex.B5, which are water charges receipts and said this would not go to prove that the defendant has put up a water tank in the suit property. On this basis, trial Court disbelieved pleadings of the defendant that she is in possession of the suit property. In the result, the suit was decreed by trial Court by judgment and decree dated 26.11.2019. 7. Sole defendant 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 brevity] vide A.S.No.3 of 2020 on the file of 'Sub Judge's Court, Perundurai' ['First Appellate Court' for brevity]. First Appellate Court, after full contest, modified the decree of trial Court by holding that there will be an injunction only to the extent of 111.50 sq.mts [1200 sq.ft], which is blue shaded portion in Ex.C3. Ideally Ex.C3 should have been appended to the decree of First Appellate Court. First Appellate Court, after full contest, modified the decree of trial Court by holding that there will be an injunction only to the extent of 111.50 sq.mts [1200 sq.ft], which is blue shaded portion in Ex.C3. Ideally Ex.C3 should have been appended to the decree of First Appellate Court. However, a copy of Ex.C3 has been placed before me as part of case file and a colour scanned reproduction of the same is as follows: IMAGE 8. Though the decree of trial Court also talks about 1200 sq.ft., it says OTHER LANGUAGE which means entire vacant land, whereas First Appellate Court has localized the property for which injunction has been granted and made it clear that it is the blue shaded portion in Ex.C3. 9. Learned counsel for appellant contended that the Courts below erred in decreeing the suit when the plaintiffs have not sought declaration of title. It was also contended that the defendant's exclusive possession has been overlooked. 10. A perusal of judgment of First Appellate Court reveals that the First Appellate Court has placed reliance on the Advocate Commissioner's report, Commissioner's sketch and Surveyor's sketch (Exs.C1 to C3) for localizing the area for which injunction is granted. 11. In the light of Ex.A1-Sale deed in favour of plaintiffs and in the light of defendant's not disputing Ex.A1 in the pleadings [paragraph 7 of written statement], which has been alluded to supra, the first argument that the plaintiffs sought for declaration pales into insignificance. With regard to the second argument, the suit property is vacant land and therefore the principle is possession follows title. Though the matter ends there, the pleading of defendant that she has put up a small water tank has also been gone into and the same has been disbelieved (inter-alia by appreciating evidence) by Courts below, which has been alluded to and delineated supra in this judgment. 12. Reverting to the judgment of First Appellate Court, the approach, appreciation and findings of First Appellate Court qua Advocate Commissioner's report, sketch and surveyor's sketch are captured in paragraphs 22 to 26 thereat, but this Court, for the purpose of avoiding this judgment being burdened with a extract of all five paragraphs, deems it appropriate to extract paragraphs 22 and 26 thereat, which read as follows: OTHER LANAGUAGE 13. Advocate Commissioner's report by itself becomes evidence in a suit by virtue of Order XXVI Rule 10 Sub Rule (2) CPC. This Court therefore finds no infirmity in the approach of First Appellate Court and First Appellate Court has also clearly proceeded on the first principle that for a vacant site possession follows title. 14. Points for determination : (a) Whether the Courts below have erred in their findings regarding absence of declaration prayer and possession? and (b) Whether any substantial question of law arises in the case on hand? 15. The first point for determination has already been answered supra [answered against the appellant] and the reasons for not finding fault with the Courts below regarding the findings returned qua possession and absence of declaration qua absence of declaration have already been delineated supra. With regard to second point for determination, this Court reminds itself that Second Appeal is a statutory right, it has to be regulated according to the law in force and conditions mentioned in Section 100 CPC must be fulfilled. Hon'ble Supreme Court has held that no Court can add or enlarge the conditions in Section 100 CPC. 16. This takes us to what the expression 'substantial question of law' occurring in Section 100 of CPC means. The expression 'substantial question of law' occurring in Section 100 of CPC has not been defined in CPC, but it was described elucidatively by a Hon'ble Full Bench of this Court in the celebrated Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)]. These principles in Rimmalapudi Subba Rao case were affirmatively reiterated by a Constitution Bench of Hon'ble Supreme Court in another celebrated case law i.e., Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co., Ltd., reported in AIR 1962 SC 1314 ] which has been neatly and nicely captured in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179 ]. Relevant paragraph in Santosh Hazari case law is paragraph 12 and the same reads as follows: '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. Relevant paragraph in Santosh Hazari case law is paragraph 12 and the same reads as follows: '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 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 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.”' 17. If the above determinants qua 'substantial question of law' expression occurring in Section 100 CPC are applied to the case on hand, this Court has no difficulty in coming to the conclusion that no substantial question of law arises or in other words, no question which is debatable, no question which is res integra or no issue of settled principles being disregarded arise in the case on hand. 18. Substantial question of law arising in a case is desideratum for a drill i.e., legal drill under Section 100 CPC and therefore this Court, following Kirpa Ram case being Kirpa Ram Vs. Surendra Deo Gaur reported in 2020 SCC OnLine SC 935, deems it appropriate to dismiss the captioned Second Appeal at the admission stage holding that no substantial question of law arises in the captioned Second Appeal. Owing to the nature of the matter, the trajectory the matter has taken and the nature of submissions made before this Court, there shall be no order as to costs.