IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2009 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.373 of 1998 Manicka Padayachi .. Appellant Vs. R.Vaithilingam (died) 1. V.Arul 2. V.Kalaiselvan 3. V.Jyothi 4. V.Tamilselvi 5. V.Muthamilselvi .. Respondents Second Appeal filed as against the judgment and decree dated 17.04.1996 in A.S.No.163 of 1993 before the Principal Sub Court, Cuddalore, preferred against the judgment and decree dated 17.06.1993 before the Distict Munsif's Court, Panruti. For Appellant : Mrs.Hema Sampath,S.C. for Mrs.R.Meenal For R1 and R2 : Mr.G.Rajagopal, S.C. for G.R.Associates J U D G M E N T
This second appeal is focussed by the original first defendant, animadverting upon the judgement and decree dated 07.04.1996 passed by the learned Principal Subordinate Judge, Cuddalore in A.S.No.163 of 1993 confirming the judgement and decree dated 17.06.1993 passed by the learned District Munsif, Panruti in O.S.No.794 of 1986, which was a suit for declaration and permanent injunction. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. The original plaintiff Vaithilingam filed the suit O.S.No.794 of 1986 as against two defendants including the second appellant/D1 herein for declaration of his title over the suit property and for obtaining injunction, so as to restrain the defendants from interfering with his right over the suit property. The defendants entered appearance and D1 filed the written statement resisting the suit. D2 remained absent and hence she was set exparte.
3. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1, Kothandapani was examined as P.W.2, Vetrivel was examined as P.W.3 and Kuppusamy was examined as P.W.4 and Exs.A1 to A26 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B9 were marked.
4. Ultimately the trial Court decreed the suit, as against which First Appeal was filed, for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court. Being disconcerted and aggrieved by the judgment and decree of both the Courts below, this Second Appeal is focussed on various grounds and also setting out the following alleged substantial questions of law:
“1. Whether in the law the Courts below are right in over looking the presumption under the Evidence Act with regard to Ex.A1 which is a registered sale deed?
2. Whether in law the Courts below are right in ignoring that the onus was on the plaintiff to rebut the presumption that possession was handed over to Rajavannia Padayachi on the date of sale?
3. Whether in law the Courts below are right in holding that the plaintiff had prescribed title by adverse possession?
4. Whether in law the Courts below are right in concluding that Exs.A3, A6, A22 and B21 as well as the settlement deed dated 19.02.1996 as invalid when there is no prayer and when Court fee had not been paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act?”
5. Heard both sides.
6. A plain poring over and perusal of the relevant records and consideration of the arguments of both sides would display and demonstrate that the plaintiff filed the suit on the ground that he is the only surviving descendant of the original owner, namely Chinnathambi Padayachi having interest over the suit property; and that the female heirs and one Thangarasu had not claimed any right over it. It is also the case of the plaintiff that Kullan, one of the sons of Chinnathambi Padayachi allegedly sold as per Ex.A1, the sale deed dated 11.03.1941, the suit property to one Rajavannia and in order to purchase peace, the plaintiff got executed from Rajavannia Ex.A24, the sale deed dated 01.09.1986 in respect of the suit property.
7. The nitty-gritty, the gist and kernel, the pith and marrow of the case of the first defendant is that Rajavannia who purchased the property under Ex.A1, had some family arrangements with his brother Kasi and Vaithilingam orally and in that Kasi and Vaithilingam were allotted with the suit property and they in turn sold the suit property as per Ex.A21, the sale deed dated 15.02.1966, in favour of one Thangarasu, who as per Ex.B3, the sale deed dated 29.03.1966, sold the suit property in favour of one Saminathan, who as per Ex.B6 dated 18.07.1981, executed the sale deed in favour of D1, Manickam Padayachi and as such, D1 would claim absolute right over the suit property.
8. Whereas, the plaintiff further contended that by way of avoiding and averting, warding off and preventing unnecessary title dispute, the plaintiff also purchased as per Ex.A22 dated 17.01.1977, the suit property from Jayaraman, S/o Saminathan and according to him, the said Saminathan was infirm and hence he got the sale deed from the son.
9. At this juncture, I would like to highlight and spotlight that peculiarly in this case, the parties entered into various transactions which would make any reasonable man to raise his eyebrows. Be that as it may, this Court has to apply strictly the law and find out as to whether there is any substance in the Second Appeal. The trial Court as well the Appellate Court correctly after considering the pros and cons of the matter found out that there is nothing to indicate and exemplify that Rajavannia, handed over or released his interest in the suit property in favour of Kasi and Vaithilingam, so as to enable those two persons to execute Ex.A21, the sale deed in favour of Thangarasu. Unless the said fact of Rajavannia who acquired right over the suit property as per Ex.A1 is proved to have parted with his right in favour of Kasi and Vaithilingam, the validity of Ex.A21 cannot be upheld.
10. In this context, I call up and recollect the famous maxim ‘Nemo dat qui non habet – He who hath not cannot give.
11. By way of torpedoing the very contention of D1, the plaintiff produced Ex.A24, the sale deed executed by Rajavannia himself in favour of the plaintiff. It is therefore crystal clear that Rajavannia did not authorise or empower Kasi and Vaithilingam to execute the sale deed, Ex.A21 in favour of Thangarasu, who is claimed to be the D1’s predecessor’s predecessor in title. As a sequel, Ex.B3 the sale deed executed by Thangarasu in favour of Saminathan and Ex.B6, the sale deed executed by Saminathan in favour of D1 are all having no legs to stand and they did not have the back up of the law.
12. The learned Senior Counsel for the first defendant would advance her argument to the effect that the very fact that the plaintiff purchased the suit property from Jayaraman S/o Saminathan as per Ex.A22 would non suit him, as by Ex.A22 he impliedly admitted that the sale deed Ex.B3 dated 29.03.1966 executed by Thangarasu in favour of Saminathan, the father of Jayaraman was true and in turn, the plaintiff also admitted that Ex.A21 the sale deed dated 15.02.1966 executed by Kasi and Vaithilingam in favour of Thangarasu was true.
13. However, the learned Senior Counsel for the plaintiff would torpedo the argument as put forth on the side of the first defendant by setting forth and putting forth his points that the very conduct of the plaintiff Vaithilingam would consistently show that even though he happened to be the legal heir of Chinnathambi Padayachi, the original owner of the property, he, for the purpose of purchasing peace thought fit to purchase the property from Rajavannia as per Ex.A24 dated 01.09.1986 as well as from Jayaraman as per Ex.A22, the sale deed dated 17.01.1977, so that there would not be any problem at all for his possession and enjoyment of the suit property as owner, continuously without any interruption all along as the legal heir of the original owner Chinnathambi Padayachi. Such an argument as put forth by the learned Senior Counsel for the plaintiff carries conviction with this Court for the reason that Vaithilingam by his own conduct clearly demonstrated and displayed, exemplified and evinced that he wanted to retain the property without any trouble and for that he without insisting upon any technicalities, did choose to get executed in his favour the sale deeds from two rival faction. No doubt, the said Thangarasu on the strength of Ex.A21 the sale deed, executed Ex.B3, the sale deed only in favour of Saminathan, who himself did not execute the sale deed in favour of Vaithilingam, but Vaithilingam obtained the sale deed Ex.A22 from only Jayaraman S/o Saminathan. The question would arise as to whether Ex.A22 would serve the purpose of the plaintiff’s intention to purchase peace when he had not chosen to purchase the property from Saminathan himself by way of purchasing peace.
14. At this juncture, it has to be held undoubtedly that when Saminathan was alive, the sale deed executed by his son Jayaraman would not enure to the benefit of the plaintiff Vaithilingam. However, the initial question looms large, so to say, whether Kasi and Vaithilingam, the brothers of Rajavannia had the right to execute the sale deed in favour of Thangarasu, the father of Saminathan.
15. To the risk of repetition, without being tautologous, I would like to highlight that absolutely as per the analysis of facts, both the Courts below found that as per the evidence available, nothing could be culled out legally that Kasi and Vaithilingam had the right to execute the sale deed Ex.A21, which according to D1 is the bedrock of his defence. However, the fact remains that Rajavannia himself executed the sale deed in favour of the plaintiff as per Ex.A24. It should not be forgotten that D1 admits the validity of Ex.A1, the sale executed by Kullan in favour of Rajavannia. Hence, I could see no flaw in the claim of the plaintiff over the suit property.
16. My learned predecessor admitted the Second Appeal and framed the following substantial questions of law:
“1. Whether in the law the Courts below are right in over looking the presumption under the Evidence Act with regard to Ex.A1 which is a registered sale deed?
2. Whether in law the Courts below are right in holding that the plaintiff had prescribed title by adverse possession?
3. Whether in law the Courts below are right in concluding that Exs.A3, A6, A22 and B21 as well as the settlement deed dated 19.02.1996 as invalid when there is no prayer and when Court fee had not been paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act?”
17. The substantial question of law No.1 is relating to Ex.A1, the registered sale deed. Ex.A1, the registered sale deed is an admitted sale deed by both sides and in fact, the trial Court in paragraph 12 visualised Ex.A1 as a valid sale deed in favour of Rajavannia, who in turn executed Ex.A24 in favour of the plaintiff. Hence, in such a case, it is crystal clear that both the Courts below have not simply ignored Ex.A1. The First Appellate Court in its collective discussion of several points, did not discard Ex.A1. However, aternis visibus arguments of the Courts below lead to cropping up of arguments from different angles. Clarity is the hall mark of Court judgments and hence I would expect judgments of lower Courts discussing distinctly on each point and alternatively the other views also. Accordingly, substantial question of law No.1 is decided that Ex.A1 is an admitted document by both sides, but placing reliance and giving weightage by the rival parties differs as discussed supra.
18. Regarding substantial question of law No.2, the trial Court framed additional issue No.4 relating to prescriptive title alleged to have been acquired by the plaintiff and additional issue No.1 was as to whether D1 acquired prescriptive title over the suit property. Both the Courts below on considering the various documents including the revenue records held that in addition to the title deeds speaking in favour of the plaintiff, he also by his long enjoyment acquired title over the property. The trial Court as well as the First Appellate Court referring to the revenue records discussed threadbare that it is the plaintiff who has been in possession and enjoyment of the suit property continuously and uninterruptedly and this Court, in Second Appeal is not called upon to re-appreciate such analysis of evidence by both the Courts below.
19. No doubt, I am fully aware of the fact that the concept prescriptive title would presuppose the prior title in favour of a third party, but in this case, the plea of prescriptive title has been put forth only as alternis visibus. In the plaint, the plaintiff would contend that by virtue of his right as legal heir of the original owner Chinnathambi Padayachi, he has been in possession of the suit property in his own capacity for a long time. Both the Courts below held that by virtue of the documents also he became absolute owner. However, by his long possession over the statutory period, none else other than the plaintiff can claim prescriptive title. However, the plaintiff clearly proved that Ex.A24, the sale deed, is by way of ex abundanti cautela in favour of the plaintiff. The First Appellate Court also in paragraph No.11 highlighted the said fact. As such, from the whole kit and caboodle of facts and figures made available as per records, it is clear that both the Courts below were satisfied about the evidence concerning documentary evidence also in favour of the plaintiff that he acquired title over the suit property by his continuous, long and uninterrupted possession as owner. Accordingly, substantial question of law No.2 is decided as against the second appellant and as such, the findings of both the Courts below cannot be found fault with.
20. In view of the discussion supra, it is clear that both the Courts below were right in holding that Exs.A3, A6, A22 and B21 are invalid and invoking Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act would not arise because the plaintiff Vaithilingam was not a party to those documents. Accordingly, substantial question of law No.3 does not arise.
21. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon’ble Apex 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.”
It is therefore apparent and axiomatic that in the absence of legally sustainable substantial question of law, the probability of entertaining the Second Appeal does not arise.
22. However, the learned Senior Counsel for the second appellant by citing the following two decisions of the Hon’ble Apex Court:
(i) 2008(10) SCC 697 [Laxmi Ram (Dead) by L.R. and others v. Bietshwar Singh and others]
(ii) 2001(4) SCC 262 [Kulwant Kaur and others v. Gurdial Singh Mann (dead) by L.Rs. and others],
would try to canvass the case of the defendants that when there is perversity in the findings of the Courts below, certainly the High Court under Section 100 of CPC could interfere with the findings of the Courts below. There could be no quarrel over such proposition as found enunciated and highlighted in those two decisions.
23. The decision 2008(10) SCC 697 (cited supra) is highlighting the point that when the finding of the trial Court is based on an error of record and misappreciation and non-appreciation of evidence on record, then substantial question of law would arise.
24. The decision 2001(4)SCC 262 (cited supra) is highlighting the point that if the finding of the lower Court is perverse, the High Court could interfere with it.
25. As such, the four decisions referred to supra would highlight the crucial points to the effect that if at all the Courts below are perverse in analysing the evidence and arriving at the conclusion, or if there is any material error in applying the law or in not applying the law, the question of interference by the High Court under Section 100 of CPC would arise. But in this case, absolutely no perversity in appreciation of the evidence by both the Courts below could be seen and they au fait with law and au courant with facts decided the lis and there is nothing to indicate or demonstrate that they were unable to see the wood from tree.
Accordingly, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
30.03.2009
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Index : Yes
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To
1. Principal Sub Court, Cuddalore.
2. Distict Munsif’s Court, Panruti.
G.RAJASURIA, J.
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Pre-delivery judgment in
S.A.No.373 of 2008
30.03.2009