IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.173 of 2009 1. Chinnammal 2. Janaki .. Appellants vs. Amritham .. Respondent This second appeal is filed against the judgment and decree dated 01.04.2008 passed by the Subordinate Judge at Mannargudi in A.S.No.23 of 2007 which preferred by the appellant herein against the decree and judgment dated 28.08.2007 in O.S.No.233 of 2004 on the file of District Munsif Court, Mannargudi. For Appellants : No appearance For Respondent : No appearance - - - J U D G M E N T
This second appeal is focussed by the original plaintiffs, animadverting upon the judgement and decree dated 01.04.2008 passed in A.S.No.23 of 2007 by the Subordinate Judge, Mannargudi, confirming the judgment of the trial Court, namely, District Munsif Court, Mannargudi, in O.S.No.233 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus:
The second appellants/plaintiffs herein filed the suit seeking the relief of permanent injunction so as to retrain the defendant from any manner interfering with the peaceful possession and enjoyment of the suit property comprised of six survey numbers. The defendant resisted the suit by taking various pleas.
3. During trial, on the side of the plaintiffs, Veerachamy was examined as P.W.1 and Exs.A1 to A4 were marked. The defendant examined himself as D.W.1 on his side and Exs.D1 to D3 were marked.
4. Ultimately, the trial Court dismissed the suit, as against which the first appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds as set out in the memorandum of appeal and also suggesting the following proposed substantial questions of law:
“1. Whether the trial Court was right in refusing to grant the relief of injunction in respect of suit properties in the admitted circumstances that title and possession of suit property established by the plaintiff both by documentary and oral evidence?
2. Whether it is proper to reject the plea of the plaintiff on the ground that schedule of the property for each and every item of property not properly given?
3. Whether the decree and judgment dismissing the suit by the trial Court as well as the order of confirmation by the first appellate court is proper without any proof or documentary evidence to show that there is a irrigation canal in existence hat too in and through the property of the plaintiff?
4. Whether the dismissal of the First appeal and the suit merely based on the ground there was canal in S.No.86/2 and the same being not specified in the plaint is sufficient?
5. Whether the dismissal of the suit and the first appeal without making any observation and conclusion with regard to that the alleged canal is running adjoining the properties of he plaintiff and in case of granting the injunction as prayed for will affect the respondent and his cultivation?”
5. Despite printing the names concerned, none appeared.
6. A bare perusal of and poring over the relevant records including the typed set of papers and the certified copies of judgments of both the Courts below would display and demonstrate that the plaintiffs are guilty of suppression of materials facts in the sense that they have not chosen to highlight the fact that the channel in S.No.86/2 is running in between the plaintiffs’ property bearing S.No.86/3A3 (now 86/3A2) and 86/3A1. In the schedule of property appended to the plaint, the following six survey numbers
rh;nt ek;gh; 86/3V3 (jw;nghJ 86/3V2) 0.49 (0.20.0)
86/3V1 0.12 (0.05.0)
86/4V 0.44 (0.18.0)
86/VV 0.25 (0.10.0)
87/2V 1.16 (0.47.0)
97/2gp 0.32 (0.13.0)
have been found set out as the suit property belonging to the plaintiffs and for all the said six survey numbers, one set of boundaries are given as under:
To the south and east of Mariappa Lingathar property;
To the west of cart track and C.M.P. canal; and
To the north of land belonging to Rangasamy Thondan.
As such, the schedule of property conveys the idea as though the aforesaid six survey numbers are lying within the said boundaries referred to.
7. Whereas, the trial Court after correctly analysing the relevant facts held that in between the said two S.Nos.86/3A3 (now 86/3A2) and 86/3A1,the channel S.No.86/2 is running which does not exclusively belong to the plaintiffs and in fact, the real intention of the plaintiffs is to prevent the defendant from enjoying the said channel. P.W.1 in his deposition artificially deposed and expatiated as though the defendant was attempting to take a canal across the plaintiffs’ suit property. In fact, the said channel in S.No.86/2 has been in existence long prior to the filing of the suit onwards. Both the Courts below in order to arrive at the conclusion, relied on the public document. P.W.3, Tahsildar produced the sketch and highlighted and spotlighted before the trial Court that the channel S.No.86/2 is running in between the plaintiffs’ property, namely S.No.86/3A3 (now 86/3A2) and 86/3A1 and that happens to be the poromboke channel. Ex.X1 dated 08.09.2004, the proceedings of the Tahsildar would reveal that the said poromboke channel in S.No.86/2 was ordered to be restored and the trial Court correctly based on the evidence held that the plaintiffs at one point of time demolished such channel. As such, both the Courts below found out the ulterior and illegal motive of the plaintiffs in filing such a suit suppressing the material facts as against the defendant.
8. The proposed substantial question of law Nos.1,2,4 and 5 are distorted ones for the reason that the plaintiffs attempted to obtain injunction in respect of the poromboke channel bearing S.No.86/2 which is running across the land situated within the four boundaries set out in the plaint and such an approach on the part of the plaintiffs is highly untenable and condemnable legally.
9. The proposed substantial question of law No.3 is a misconceived one for the reason that both the Courts below placing reliance on the evidence of Tahsildar as well as the public records produced, arrived at the conclusion that there is a poromboke channel in S.No.86/2.
10. In view of the ratiocination adhered to in rejecting the substantial question of law, the question of finding fault with the judgment of the First Appellate Court does not arise.
11. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon’ble Apex Court reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it would run thus:-
(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) One other decision of the Hon’ble Apex Court could also be cited as under:
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.”
It is therefore crystal clear that without any substantial question of law, second appeal cannot be entertained. Here my discussion supra would evince that absolutely there is no question of law, much less substantial question of law, involved in this matter. Accordingly, the Second Appeal is dismissed. No costs.
gms
To
1. Subordinate Judge at Mannargudi
2. District Munsif Court,
Mannargudi
