IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.166 & 177 of 2009 and M.P.No.1 of 2009 Sellakumarasamy ... Appellant in both the Second Appeals vs. 1.P.Swaminathan 2.Rasa Gounder 3.Palanisamy 4.Kandasamy 5.Kaliappan ... Respondents 1 to 5 in both the S.As.
6.State of Tamil Nadu,
rep.by District Collector,
Perundurai Road,
Erode-11 …. 6th Respondent in S.A.166 of 2009
These second appeals are filed against the judgements and decrees dated 29.9.2005 passed by the First Additional Subordinate Judge, Erode, in A.S.Nos.56 of 2004 and 56 of 2005, confirming the judgements and decrees dated 27.2.2004 passed by the District Munsif cum Judicial Magistrate, Perundurai, in O.S.Nos.130 of 1995 and 88 of 1995.
For Appellant : Mr.A.K.Kumaraswamy For Respondents : No appearance COMMON JUDGMENT The appellant in S.A.No.166 of 2009, namely, Sellakumarasamy, filed the suit O.S.No.88 of 1995 seeking the following relief:
“to grant permanent injunction restraining the defendants, their men, heirs, assigns from in any manner trespassing into the suit property or interfering with the plaintiff’s exclusive possession and enjoyment of the suit property; or in any manner preventing the plaintiffs from cutting the standing trees in the suit property”
The respondents 1 to 5 in S.A.No.166 of 2009 filed the suit O.S.No.130 of 1995 seeking the following relief:
“To direct the first defendant, by way of mandatory injunction, to rectify all the revenue records including filed Map with regard to suit B Schedule property R.S.BNo.107/1 of Virumandampalayam Village either excluding the portion of 0-531/2 acres of old Survey Number 386/1 that is southern portion of suit ‘A’ schedule property including in the same or to include the name of plaintiffs also as proprietors of the same.”
As such, both the suits were interrelated and interlinked, interconnected and entwined with each other, which necessitated the lower Court to correctly conduct the joint trial and pronounce the common judgement.
(b) In both the suits, the defendants concerned resisted the suit. During the trial, on the side of the plaintiffs, the first plaintiff in O.S.No.130 of 1995, examined himself as P.W.1 apart from examining one Maruthachalam as P.W.2 and marked Exs.A1 to A7. The second defendant in O.S.No.130 of 1995 examined himself as D.W.1 apart from examining Palanisamy as D.W.2 and Easwaramurthy as D.W.3 and Ex.B1 to Ex.B8 were marked. Ananthakrishnan-Advocate Commissioner, was examined as C.W.1 and Exs.C1 to C5 were also marked.
(c) Ultimately the trial Court dismissed the suit O.S.No.88 of 1995 filed for injunction by Sellakumarasamy-the appellant in S.A.No.166 of 2009 and decreed the suit O.S.No.130 of 1995 filed by Swaminathan et al.
(d) Being dissatisfied with the said common judgement, A.S.Nos.56 of 2004 and 56 of 2005 were filed by Sellakumaraswamy for nothing but to be dismissed by the appellate Court confirming the judgement and decree of the lower Court.
2. Being unhinged and disconcerted by the said judgements and decrees, these second appeals have been filed by Sellakumarasamy on various grounds and also suggesting the following substantial questions of law:
“a) Is not the suit barred under Section 14 of Tamil Nadu Survey and Boundaries Act, 1923?
b) Whether the courts below are justified in decreeing the suit for mandatory injunction directing the Government to rectify the resurvey and revenue records, without the respondents 1 to 5/plaintiffs establishing their title to the suit property?”
3. A bare perusal of and poring over the typed set of papers, including the copies of the judgements of both the Courts below, would display and demonstrate, expatiate and evince that the plaintiffs in O.S.No.130 of 1995, namely, Swaminathan and four others impugning and remonstrating the procedure adopted by the Revenue officials, filed the suit seeking comprehensive relief, as set out supra. Whereas the second appellant in both the appeals, namely, Sellakumarasamy, in O.S.No.88 of 1995 sought for injunction.
4. The main thrust of the contention of the second appellant-Sellakumarasamy would be to the effect that the Civil Court has got no jurisdiction to entertain the suit O.S.No.130 of 1995 filed by Swaminathan and others on the ground that the fixation of boundaries by the Revenue authority concerned, under the Tamil Nadu Survey and Boundaries Act, 1923(hereinafter referred to as the ‘Act’ in short), could be challenged within three years from the date of publication in the gazette. Hence, it is just and necessary to extract hereunder Section 14 of the Act:
“14. Institution of a suit in civil Court within three years to establish rights claimed in respect of the boundary of the property surveyed. – Any person deeming himself aggrieved by the determination of any boundary under Section (9, 10, 11, 12-A or 12-B) may, subject to the provisions of Parts II and III of the Indian Limitation Act, 1963 (Central Act 36 of 1963) institute a suit within three years from the date of the notification under Section 13s to set aside or modify the said determination and the survey shall if necessary, be altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the record.
The plaintiff in such suit shall join as parties to it all persons whom he has reason to believe to be interested in the boundary which is the subject of suit.”
5. At this juncture, my mind is reminiscent and redolent of similar provisions as found set out in the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (T.N.Act.No.30 of 1963).
6. Based on the aforesaid provision, the following Full Bench decision of this Court emerged:
1998 (I) CTC 630 in Srinivasan and six others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others. Certain excerpts from it would run thus:
“The Supreme Court in the decision reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794 observed that the powers of the statutory authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and they cannot be equated with the Civil Courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the scheme underlying these abolition laws would go to show that the vesting on abolition under everyone of these legislations are subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basis and fundamental rights which entitle a person to preferentially get patta under these legislations and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intended to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claim, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794, R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and Sayyed Ali Vs. A.P.Wakf Board, Hyderabad, 1998(2) SCC 642 and that of a Division Bench of this Court in Ramanujam Kavirayar, T.K. Vs. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther and another Vs. Avvammal and 2 Others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has, as their objection and aim, to implement ryotwari settlement in the areas governed by them.
15.Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the principles of res judicata, does not have the effect of ousting the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved and existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Courts and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata, a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or Court of competent jurisdiction.
16.On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgement in this case was under preparation and it was ascertained that in Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal Vs. Smt.T.Parvathi Ammal & Ors., 1998 (I) CTC 585. Their Lordships of the Apex Court by a judgment dated 20.02.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker Vs. E.Elumalai Naicker, 1995(4) SCC 156 and set their seal of approval to the principles laid down therein, but has categorically held in unmistakable terms with the decision in Vatticherukuru Village Panchayat Vs. Nori Venkatarama Deekshithulu, 1991 Supp (2) SCC 228 has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
“The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondents. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the Civil Court’s jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the Civil Court’s jurisdiction was not barred.
The plea of exclusion of the Civil Court’s jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manickanaicker Vs. E.Elumalainaicker, 1995(4) SCC 156, has clearly held that the Civil Court’s jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned for the appellant placed reliance on the decision in Vatticherukuru Village Panchayat Vs. Nori Venkatarama Deekshithulu and Ors., 1991 (Supp.) 2 SCC 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manickanaicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manickanaicker, there is no merit in this appeal. The appeal and the contempt petition are dismissed.”
17.In view of the above unreported decision of the Supreme Court, the decision in A.Vanathan Muthuraja Vs. Ramalingam, 1997 (6) SCC 143, rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18.For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the Civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.”
As such, the said decision governs the field.
7. It is ex facie and prima facie clear that the ratiocination adhered to by the Full Bench in interpreting the provisions found in the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (T.N.Act.No.30 of 1963), can also be applied in respect of Section 14 of the Tamil Nadu Survey and Boundaries Act. Where ever substantial property right of a citizen is involved, the civil Court’s right cannot be taken away by the Special enactment and that too, when the Special enactment is only for preparation of Survey records and such like. Herein in this matter it is pellucidly and palpably, obviously and axiomatically clear that the aim of the O.S.No.130 of 1995 was to get asserted the plaintiffs’ property right, as owners of suit property based on their pre-existing ownership right de hors survey proceedings. As such, the aforesaid Full Bench decision squarely can be pressed into service as against the proposed suggested substantial question of law (a) as put forth by the second appellant in both the appeals.
8. The proposed suggested substantial question of law (b) is relating to the fact as to whether the Courts below are having right to mandate the Government Officials to rectify the resurvey and Revenue records.
9. I am fully aware of the fact that statutory authorities are expected to exercise their powers and perform their duties as per Rules. Here it is a peculiar case, in which the contention of the plaintiffs Swaminathan and others in O.S.No.130 of 1995 was to the effect that a portion of their land, during Survey, was shown as though it belongs to the defendants and in that connection, they adduced evidence before the trial Court.
10. When the matter was pending before the lower Court, Commissioner was appointed, who visited the suit property, measured the same and submitted his report and sketch. Exs.C1 to C3 are the relevant Commissioner’s report and sketch. The trial Court also under paragraph 15 highlighted as to how after annulment of Exs.C1 to C3 earlier by the District Court, once again the Commissioner was directed to visit the suit property and do the needful and accordingly the Commissioner submitted Ex.C4 and Ex.C5 and that no objections were filed by any one. The Commissioner also was examined.
11. In paragraph 16, the trial Court adverted to the Partition deed Ex.B1-dated 12.11.1935 relied on by D2 as a title deed, which contemplated Old S.F.No.386 measuring an extent of 12 acres 17 cents, in which the second defendant is entitled to 8 acres 11 cents. Ex.A1-the Partition Deed dated 1.3.1928 refers to old Survey No.386, measuring an extent of 2.03 acres, which was allotted to Varanavasi Gounder and an extent of 2.02= acres was allotted to one Marappa Gounder and those two lands were situated on the North of the land of the second defendant’s father-Karuppa Gounder. The lower Court held that an extent of 2.03 + 2.02= = 4.05= acres of land in old S.F No.386 was allotted to Varanavasi Gounder and Marappa Gounder-the predecessors in title of the plaintiffs and as such, after deducting that extent from 12 acres 17 cents, there remained 8.11= cents. There were no land dispute between the parties concerned prior to the survey undertaken by the officials concerned.
12. The property in dispute is situated in R.S.No.107/1, over which the defendants claim ownership right because of the recent wrong survey. Whereas the plaintiffs claim ownership right over old Survey No.386/1 and during resurvey part of the said number was shown in R.S.No.107/1. It is also the case of Swaminathan and others, who are the defendants in O.S.No.88 of 1995 that they came to know about this discrepancy only on receipt of the copy of the plaint. The trial Court also deeply discussed all those factual aspects and the Commissioner’s report and sketch and arrived at the conclusion that in respect of the parties’ title over the respective portions are concerned, there is no dispute and because of the wrong survey effected, there arose dispute.
13. Paragraphs 19 and 20 of the judgement of the lower Court are extracted hereunder for ready reference:
“19. The Commissioner had clearly reported in his report and plan that a part of the old Survey No.386/1 has been included in that R.S.No.107/1. The Commissioner has given the clear measurements of the portions of the land, which formed pat of the old Survey No.386/1 and which now formed part of the new R.S.No.107/1 and he has shaded it also in green and had shown in his plan Ex.C5. There is no dispute with regard to the fact that this green marked portion is the same as found by the Commissioner in his earlier Survey Report Ex.C3 also.
20. The Commissioner has also categorically stated that R.S.No.106/2 and 105/2 are also situated in the old S.F.No.386/2. The Commissioner has also averred in his evidence that these extent of lands in R.S.No.D6/2 and 105/2 is also situated on the west of the demarcating fence. The Commissioner’s Survey plan Ex.C5 clearly shows that the old S.F.No.386/2 is given the new R.S.F.Nos.107/1, 107/2 and 106/2 and 105/2. The Commissioner’s plan-Ex.C5 also clearly shows that the corresponding R.S.No.107/3 relates to the old S.F.No.389. This fact tallies with the A.Regr. Extract Ex.A5 relied upon by the plaintiffs. As such, there is no truth in the document Ex.B2 relied on by the second defendant.”
14. Once, based on documentary evidence and actual measurement, the lower Court has arrived at the conclusion that the second defendant is entitled to, according to his version, 8.11 acres in old S.F.No.386/2, as per the Partition Deed-Ex.B1, and as such, the question of disputing the claim of the plaintiffs over their extent does not arise and all trouble erupted because of wrong survey, which is also found discussed under paragraph 21 of the judgement of the lower Court.
15. At this juncture my mind is reminiscent and redolent 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. 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. 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. 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.”
16. A plain reading of the above judgements would leave no doubt that unless there is substantial question of law involved in a matter, no second appeal would lie. Understanding the implications of those judgements only, the appellant in both the second appeals tries to make out a case only based on Section 14 of the Tamil Nadu Survey and Boundaries Act, which also, as discussed supra, is not tenable in view of the Full Bench decision of this Court.
17. The contention of the appellants in both the appeals that the civil Court will not have jurisdiction to direct the officials to rectify the records is neither here nor there. Once the civil Court, which is competent to decide on the property right of the parties concerned, comes to a definite conclusion of ownership right, as a natural corollary directions should follow to the authorities to make necessary corrections incommensurate with the necessary findings of the civil Court and any distinction sought to be made between the power of the civil Court to declare title of the parties with that of the civil Court’s power to direct the Revenue official to correct the Revenue records correspondingly, is one that of tweedledum and tweedledee. Once the civil Court decides the substantive right of the parties, then it should all reflect in the Revenue records and survey records. As such, the proposed suggested substantial question of law (b) also is turned out to be a pococurante and insouciant one.
18. In respect of the injunction suit O.S.No.88 of 1995 filed by the appellant in the second appeals, the lower Court gave its finding based on oral and documentary evidence and that there was nothing to indicate that the appellant in second appeals herein is in possession and enjoyment of the said area. Such a finding is purely based of factual aspects, warranting no interference by this Court.
19. The trial Court disbelieved the oral evidence on the side of the second appellant herein relating to his alleged possession over the suit property and rendered its finding that the defendants in O.S.No.88 of 1995 have been in possession and enjoyment of the suit property and accordingly rejected the second appellant’s prayer for injunction.
G.RAJASURIA,J.
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20. To the risk of repetition without being tautalogous, I would highlight that the said finding relating to possession, based on analysis of facts, by both the Courts below cannot be re-appreciated by the High Court in Second appeal. Hence, I could see no perversity in the judgements and decrees of both the Courts below.
21. In the result, the second appeals are dismissed confirming the judgements and decrees of both the Courts below. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk 17.3.2009 Index:Yes/No Internet:Yes/No To 1.The First Additional Subordinate Judge, Erode 2.The District Munsif cum Judicial Magistrate, Perundurai S.A.Nos.166 & 177 of 2009 17.3.2009