Manicka Padayachi v. R.Vaithilingam (died) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.03.2009C O R A MTHE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.373 of 1998Manicka Padayachi ..Appellant/1st DefendantVs.R.Vaithilingam (died)1. V.Arul2. V.Kalaiselvan3. V.Jyothi4. V.Tamilselvi5. V.Muthamilselvi ..RespondentsSecond Appeal filed as against the judgment and decree dated17.04.1996 in A.S.No.163 of 1993 before the Principal Sub Court,Cuddalore, preferred against the judgment and decree dated 17.06.1993before the Distict Munsif's Court, Panruti passed in O.S.No.794/1986.For Appellant: Mrs.Hema Sampath,S.C. for Mrs.R.MeenalFor R1 and R2 : Mr.G.Rajagopal, S.C. for G.R.AssociatesJ U D G M E N TThis second appeal is focussed by the original first defendant,animadverting upon the judgement and decree dated 07.04.1996 passedby the learned Principal Subordinate Judge, Cuddalore in A.S.No.163of 1993 confirming the judgement and decree dated 17.06.1993 passedby the learned District Munsif, Panruti in O.S.No.794 of 1986, whichwas a suit for declaration and permanent injunction. For conveniencesake, the parties are referred to here under according to theirlitigative status before the trial Court.2. The original plaintiff Vaithilingam filed the suit O.S.No.794of 1986 as against two defendants including the second appellant/D1herein for declaration of his title over the suit property and forobtaining injunction, so as to restrain the defendants from https://hcservices.ecourts.gov.in/hcservices/ interfering with his right over the suit property. The defendantsentered appearance and D1 filed the written statement resisting thesuit. 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 asP.W.2, Vetrivel was examined as P.W.3 and Kuppusamy was examined asP.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 whichFirst Appeal was filed, for nothing but to be dismissed by theappellate Court, confirming the judgment and decree of the trialCourt. Being disconcerted and aggrieved by the judgment and decreeof both the Courts below, this Second Appeal is focussed on variousgrounds and also setting out the following alleged substantialquestions of law:"1. Whether in the law the Courts below are right inover looking the presumption under the Evidence Act withregard to Ex.A1 which is a registered sale deed?2. Whether in law the Courts below are right inignoring that the onus was on the plaintiff to rebut thepresumption that possession was handed over to RajavanniaPadayachi on the date of sale?3. Whether in law the Courts below are right inholding that the plaintiff had prescribed title byadverse possession?4. Whether in law the Courts below are right inconcluding that Exs.A3, A6, A22 and B21 as well as thesettlement deed dated 19.02.1996 as invalid when there isno prayer and when Court fee had not been paid underSection 40 of the Tamil Nadu Court Fees and SuitsValuation Act?"5. Heard both sides.6. A plain poring over and perusal of the relevant records andconsideration of the arguments of both sides would display anddemonstrate that the plaintiff filed the suit on the ground that heis the only surviving descendant of the original owner, namelyChinnathambi Padayachi having interest over the suit property; andthat the female heirs and one Thangarasu had not claimed any rightover it. It is also the case of the plaintiff that Kullan, one ofthe sons of Chinnathambi Padayachi allegedly sold as per Ex.A1, thesale deed dated 11.03.1941, the suit property to one Rajavannia andin order to purchase peace, the plaintiff got executed from https://hcservices.ecourts.gov.in/hcservices/ Rajavannia Ex.A24, the sale deed dated 01.09.1986 in respect of thesuit property.7. The nitty-gritty, the gist and kernel, the pith and marrow ofthe case of the first defendant is that Rajavannia who purchased theproperty under Ex.A1, had some family arrangements with his brotherKasi and Vaithilingam orally and in that Kasi and Vaithilingam wereallotted with the suit property and they in turn sold the suitproperty as per Ex.A21, the sale deed dated 15.02.1966, in favour ofone 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.B6dated 18.07.1981, executed the sale deed in favour of D1, ManickamPadayachi and as such, D1 would claim absolute right over the suitproperty.8. Whereas, the plaintiff further contended that by way ofavoiding and averting, warding off and preventing unnecessary titledispute, the plaintiff also purchased as per Ex.A22 dated 17.01.1977,the suit property from Jayaraman, S/o Saminathan and according tohim, the said Saminathan was infirm and hence he got the sale deedfrom the son.9. At this juncture, I would like to highlight and spotlightthat peculiarly in this case, the parties entered into varioustransactions which would make any reasonable man to raise hiseyebrows. Be that as it may, this Court has to apply strictly thelaw and find out as to whether there is any substance in the SecondAppeal. The trial Court as well the Appellate Court correctly afterconsidering the pros and cons of the matter found out that there isnothing to indicate and exemplify that Rajavannia, handed over orreleased his interest in the suit property in favour of Kasi andVaithilingam, so as to enable those two persons to execute Ex.A21,the sale deed in favour of Thangarasu. Unless the said fact ofRajavannia who acquired right over the suit property as per Ex.A1 isproved to have parted with his right in favour of Kasi andVaithilingam, 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, theplaintiff produced Ex.A24, the sale deed executed by Rajavanniahimself in favour of the plaintiff. It is therefore crystal clearthat Rajavannia did not authorise or empower Kasi and Vaithilingam toexecute the sale deed, Ex.A21 in favour of Thangarasu, who is claimedto be the D1's predecessor's predecessor in title. As a sequel,Ex.B3 the sale deed executed by Thangarasu in favour of Saminathanand Ex.B6, the sale deed executed by Saminathan in favour of D1 areall having no legs to stand and they did not have the back up of thelaw. https://hcservices.ecourts.gov.in/hcservices/

12. The learned Senior Counsel for the first defendant wouldadvance her argument to the effect that the very fact that theplaintiff purchased the suit property from Jayaraman S/o Saminathanas per Ex.A22 would non suit him, as by Ex.A22 he impliedly admittedthat the sale deed Ex.B3 dated 29.03.1966 executed by Thangarasu infavour of Saminathan, the father of Jayaraman was true and in turn,the plaintiff also admitted that Ex.A21 the sale deed dated15.02.1966 executed by Kasi and Vaithilingam in favour of Thangarasuwas true. 13. However, the learned Senior Counsel for the plaintiff wouldtorpedo the argument as put forth on the side of the first defendantby setting forth and putting forth his points that the very conductof the plaintiff Vaithilingam would consistently show that eventhough he happened to be the legal heir of Chinnathambi Padayachi,the original owner of the property, he, for the purpose of purchasingpeace thought fit to purchase the property from Rajavannia as perEx.A24 dated 01.09.1986 as well as from Jayaraman as per Ex.A22, thesale deed dated 17.01.1977, so that there would not be any problem atall for his possession and enjoyment of the suit property as owner,continuously without any interruption all along as the legal heir ofthe original owner Chinnathambi Padayachi. Such an argument as putforth by the learned Senior Counsel for the plaintiff carriesconviction with this Court for the reason that Vaithilingam by hisown conduct clearly demonstrated and displayed, exemplified andevinced that he wanted to retain the property without any troubleand for that he without insisting upon any technicalities, did chooseto get executed in his favour the sale deeds from two rival faction.No doubt, the said Thangarasu on the strength of Ex.A21 the saledeed, executed Ex.B3, the sale deed only in favour of Saminathan, whohimself did not execute the sale deed in favour of Vaithilingam, butVaithilingam obtained the sale deed Ex.A22 from only Jayaraman S/oSaminathan. The question would arise as to whether Ex.A22 wouldserve the purpose of the plaintiff's intention to purchase peace whenhe had not chosen to purchase the property from Saminathan himself byway of purchasing peace. 14. At this juncture, it has to be held undoubtedly that whenSaminathan was alive, the sale deed executed by his son Jayaramanwould not enure to the benefit of the plaintiff Vaithilingam.However, the initial question looms large, so to say, whether Kasiand Vaithilingam, the brothers of Rajavannia had the right to executethe sale deed in favour of Thangarasu, the father of Saminathan.15. To the risk of repetition, without being tautologous, Iwould 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 hadthe right to execute the sale deed Ex.A21, which according to D1 isthe bedrock of his defence. However, the fact remains that https://hcservices.ecourts.gov.in/hcservices/ Rajavannia himself executed the sale deed in favour of the plaintiffas per Ex.A24. It should not be forgotten that D1 admits thevalidity of Ex.A1, the sale executed by Kullan in favour ofRajavannia. Hence, I could see no flaw in the claim of the plaintiffover the suit property.16. My learned predecessor admitted the Second Appeal and framedthe following substantial questions of law:"1. Whether in the law the Courts below are right inover looking the presumption under the Evidence Act withregard to Ex.A1 which is a registered sale deed?2. Whether in law the Courts below are right inholding that the plaintiff had prescribed title byadverse possession?3. Whether in law the Courts below are right inconcluding that Exs.A3, A6, A22 and B21 as well as thesettlement deed dated 19.02.1996 as invalid when there isno prayer and when Court fee had not been paid underSection 40 of the Tamil Nadu Court Fees and SuitsValuation 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 anadmitted sale deed by both sides and in fact, the trial Court inparagraph 12 visualised Ex.A1 as a valid sale deed in favour ofRajavannia, who in turn executed Ex.A24 in favour of the plaintiff.Hence, in such a case, it is crystal clear that both the Courts belowhave not simply ignored Ex.A1. The First Appellate Court in itscollective discussion of several points, did not discard Ex.A1.However, aternis visibus arguments of the Courts below lead tocropping up of arguments from different angles. Clarity is the hallmark of Court judgments and hence I would expect judgments of lowerCourts discussing distinctly on each point and alternatively theother views also. Accordingly, substantial question of law No.1 isdecided that Ex.A1 is an admitted document by both sides, but placingreliance and giving weightage by the rival parties differs asdiscussed supra.18. Regarding substantial question of law No.2, the trial Courtframed additional issue No.4 relating to prescriptive title allegedto have been acquired by the plaintiff and additional issue No.1 wasas to whether D1 acquired prescriptive title over the suit property.Both the Courts below on considering the various documents includingthe revenue records held that in addition to the title deeds speakingin favour of the plaintiff, he also by his long enjoyment acquiredtitle over the property. The trial Court as well as the FirstAppellate Court referring to the revenue records discussed threadbare https://hcservices.ecourts.gov.in/hcservices/ that it is the plaintiff who has been in possession and enjoyment ofthe suit property continuously and uninterruptedly and this Court,in Second Appeal is not called upon to re-appreciate such analysis ofevidence by both the Courts below.19. No doubt, I am fully aware of the fact that the conceptprescriptive title would presuppose the prior title in favour of athird party, but in this case, the plea of prescriptive title hasbeen put forth only as alternis visibus. In the plaint, the plaintiffwould contend that by virtue of his right as legal heir of theoriginal owner Chinnathambi Padayachi, he has been in possession ofthe suit property in his own capacity for a long time. Both theCourts below held that by virtue of the documents also he becameabsolute owner. However, by his long possession over the statutoryperiod, none else other than the plaintiff can claim prescriptivetitle. However, the plaintiff clearly proved that Ex.A24, the saledeed, is by way of ex abundanti cautela in favour of the plaintiff.The First Appellate Court also in paragraph No.11 highlighted thesaid fact. As such, from the whole kit and caboodle of facts andfigures made available as per records, it is clear that both theCourts below were satisfied about the evidence concerning documentaryevidence also in favour of the plaintiff that he acquired title overthe suit property by his continuous, long and uninterruptedpossession as owner. Accordingly, substantial question of law No.2is decided as against the second appellant and as such, the findingsof both the Courts below cannot be found fault with.20. In view of the discussion supra, it is clear that both theCourts below were right in holding that Exs.A3, A6, A22 and B21 areinvalid and invoking Section 40 of the Tamil Nadu Court Fees andSuits Valuation Act would not arise because the plaintiffVaithilingam 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 thefollowing decisions of the Hon'ble Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ." https://hcservices.ecourts.gov.in/hcservices/

18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58) https://hcservices.ecourts.gov.in/hcservices/ "The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere 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 haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but also https://hcservices.ecourts.gov.in/hcservices/ 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 ANDANOTHER, an excerpt from it would run thus-9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that:"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."It is therefore apparent and axiomatic that in the absence oflegally sustainable substantial question of law, the probability ofentertaining the Second Appeal does not arise. https://hcservices.ecourts.gov.in/hcservices/

22. However, the learned Senior Counsel for the second appellantby 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 SinghMann (dead) by L.Rs. and others],would try to canvass the case of the defendants that when there isperversity in the findings of the Courts below, certainly the HighCourt under Section 100 of CPC could interfere with the findings ofthe Courts below. There could be no quarrel over such proposition asfound enunciated and highlighted in those two decisions.23. The decision 2008(10) SCC 697 (cited supra) is highlightingthe point that when the finding of the trial Court is based on anerror of record and misappreciation and non-appreciation of evidenceon record, then substantial question of law would arise.24. The decision 2001(4)SCC 262 (cited supra) is highlightingthe point that if the finding of the lower Court is perverse, theHigh Court could interfere with it.25. As such, the four decisions referred to supra wouldhighlight the crucial points to the effect that if at all the Courtsbelow are perverse in analysing the evidence and arriving at theconclusion, or if there is any material error in applying the law orin not applying the law, the question of interference by the HighCourt under Section 100 of CPC would arise. But in this case,absolutely no perversity in appreciation of the evidence by both theCourts below could be seen and they au fait with law and au courantwith facts decided the lis and there is nothing to indicate ordemonstrate that they were unable to see the wood from tree. Accordingly, this Second Appeal is dismissed. No costs.Consequently, connected miscellaneous petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.Registrargms https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sub Court, Cuddalore.2. The Distict Munsif's Court, Panruti.3. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to Mr. R. Subrmanian, Advocate. S.R.No.10637. Judgment in S.A.No.373 of 1998SJ (CO)GSK 12.05.2009.