U.M.Deivasigamani v. T.K.Kuppusamy Gounder

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:30.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1036 of 2008and M.P.No.1 of 2008 U.M.Deivasigamani.. Appellantvs.1. T.K.Kuppusamy Gounder2. T.K.Karuppusamy3. T.K.Periyasamy.. RespondentsThis second appeal is filed against the judgment and decreedated 28.04.2008 made in A.S.No.88 of 2007 on the file of thePrincipal District Court, Erode confirming the judgment and decreedated 15.12.2006 made in O.S.No.464 of 2004 on the file of theDistrict Munsif Cum Judicial Magistrate, Perundurai (TransferredO.S.No.650 of 1999 First Addl. Sub Court, Erode).For Appellant : Mr.N.ManokaranFor Respondents : Mr.T.MurugamanickamORDERThis second appeal is focussed by the original plaintiff,animadverting upon the judgement and decree dated 28.04.2008 passedin A.S.No.88 of 2007 by the Principal District Judge, Erode,confirming the judgement and decree of the trial Court, namely,District Munsif cum Judicial Magistrate, Perundurai, in O.S.No.464 of2004, (Transferred O.S.No.650 of 1999 First Addl. Sub Court, Erode).For convenience sake, the parties are referred to hereunder accordingto their litigative status before the trial Court.2. The plaintiff/appellant filed the suit O.S.No.464 of 2004seeking the following reliefs:"(a) Declaring the plaintiff's absolute right, title,interest and possession of suit property; (b) granting permanent injunction restraining thedefendants, their men, agents, assignees from interferingwith plaintiff's peaceful possession and enjoyment of thesuit property either by trespass or by any other manner https://hcservices.ecourts.gov.in/hcservices/ whatsoever;(c) awarding cost of the suit; and(d) grant such other further reliefs as this Hon'bleCourt may deem fit and proper in the circumstances of thecase and render justice."The defendants entered appearance and filed the written statement andresisted the suit. 3. The trial Court framed the relevant issues. During trial, theplaintiff examined herself as P.W.1 and one Ramasamy Gounder wasexamined as P.W.2 and Exs.A1 to 16 were marked. On the side of thedefendants, Karuppusamy/D2 examined himself as D.W.1 and Exs.B1 toB21 were marked. Exs.C1 to C3 were marked as Court documents.4. Ultimately, the trial Court dismissed the suit as againstwhich an appeal was filed, for nothing but to be dismissed by theFirst Appellate Court, confirming the judgment and decree of thetrial Court. Being disconcerted and aggrieved by the judgments ofboth the Courts below, this Second Appeal is sought to be filed onvarious grounds and also by suggesting the following allegedsubstantial questions of law:"(a) Whether the Courts below are correct in law indismissing the suit for declaration and permanentinjunction particularly when the plaintiff has establishedhis title under Ex.A2 (05.10.1999), more so, his claim issupported by the parent document Ex.A1 dated 16.07.1911which requires no proof under Sec.90 of the Evidence Act?(b) Whether the Courts below committed an error indismissing the suit on the ground of resjudicata especiallywhen the plaintiff was not a party to the earlier suit andthat the subject matter of the suit properties are totallydifferent and distinctive in nature?(c) Whether the Courts below are right in law in notconsidering the plea of adverse possession when theplaintiff and his predecessors-in-title have proved andestablished the title by adverse possession over the suitproperty beyond the period prescribed under the Statute?"5. Heard both sides.6. A plain poring over and perusal of the records woulddemonstrate and display that the present suit filed by the appellantin the Second appeal before the trial Court is for the reliefs statedsupra, citing the following schedule of property: https://hcservices.ecourts.gov.in/hcservices/ "SCHEDULE OF PROPERTY<nuhL gjpt[ khtl;lk;. Cj;Jf;Fsp rhh; gjptfk; Cj;Jf;Fsp ngU:uhl;rpvy;iyf;Fs;gl;l bgUe;Jiw tl;lk; g[";;ir Cj;Jf;Fsp fpuhkk; g[jpa vz;/f/r/201-2be/g[/ bcw/ 2/94/0f;F j/U:/8/14 (,jd; giHa vz;/f/r/176V) 178. 179vr; ,itfspd;ghfk;)f;F brf;Fge;jp tpguk;:Kd;g[ rilaehaf;fd; kfd; u';frhkp ehaf;fd;. rpjk;gu Kjypahh;vd;gth;fSf;F ghj;jpakhapUe;J jw;nghJ vk;/V/gp//yc&;kzd;. Rg;gpukzpa brl;oahh;.fUg;g[rhkp njth; Mfpath;fSf;F ghj;jpag;gl;l tPLfSf;Fk; fpHf;F/ g[";irCj;Jf;Fsp fpuhkk; (hp/r/199) Ch; ej;jj;jpypUe;J hP/r/203 be/ rhiyapy; bjw;Ff;nfhl;oy; fpHnkyhfr; bry;Yk; tz;og;ghijf;Fk; bjw;F. Kd;g[ r';fu ft[z;lh;.ifj;jkiyf;ft[z;lh;. Kj;Jrhkpf; ft[zlh; tifawhg;ngh;fSf;F ghj;jpakhapUe;Jjw;nghJ o/nf/Fg;g[rhkpf; ft[z;lh;/ nf/ifj;jkiyf;ft[z;lh; tifawh kw;Wk;o/rptrhkp Mfpath;fSf;Fg; ghj;jpag;gl;l fpzh; thhp. tha;ffhy; epyj;Jf;F nkw;Fk;.tlf;Fk; ,jd; rJh; kj;jpapYs;s bjd;tlyo fpHg[uk; 50 Ik;gJ nky;g[uk; 50 Ik;gJfpHnkyo tlg[uk; 50 Ik;gJ bjd;g[uk; 50 Ik;gJ ,e;j mst[fSf;F 2500 rJuo ,e;j tp!;jP;hz epyk; g{uht[k;. i& epyj;Jf;F b$aghy; brl;oahh; kw;Wk;vk;/V/gp/yl;Rkz;d tPl;Lf;Fk; ,ilapy; ,Uf;Fk; bghJ re;J tHpahft[k;. g[";irCj;Jf;Fsp fpuhkk; hP/r/199 Ch; ej;jj;jpypUe;J hP/r//203 be/rhiyapy; bjw;Ff;nfhl;oy; fpHnkyhfr; bry;Yk; tz;og;ghijapd; tHpahft[k; rfytpj tz;o. ouhf;lh;fhy;eilfSk; nghfust[k; ele;J bfhs;Sk; ghj;jpa';fs; rfpjk;/i& ,lj;jpy; thjpahy; nghlg;gl;Ls;s 10* X 10* bjd;id Xiy Tiurhiy 1k; mij xl;o bjd;gf;fkhf 10* X 40* f;F nghlg;gl;Ls;s bjd;id XiyTiu rhiy 1k; tlg[wKs;s Ks;ntyp rpfjk;/"As such, for an extent of 50 X 50 in re-survey No.201/2 the plaintifflaid the suit. 7. Both sides in unison would put forth the unassailable andincontrovertible, indubitable and indisputable facts to the effectthat earlier there were two suits emerged in respect of 176-A, 177-A,179-H and 178-B measuring a total extent of 8.26 acres. The detailsof those suits are not very much relevant for the disposal of thiscase. However, those suits are O.S.No.53 of 1976, O.S.No.71 of 1978and O.S.No.253 of 1976 of Principal Sub Court, Erode and a commonjudgment emerged there under, where upon first appeal, second appealand SLP emerged and disposed of. As such, finality has been achievedin those proceedings. The fact also remains that the presentappellant in this Second Appeal happened to be one of the defendantsin the earlier suit. It so happened that during the pendency of theSecond Appeal in the previous proceedings the plaintiff herein, i.e. https://hcservices.ecourts.gov.in/hcservices/ the appellant in the Second Appeal purchased the suit propertyreferred to supra from one Ramasamy, as per Ex.A2, the sale deeddated 05.10.1999.8. The learned counsel for the plaintiff/appellant herein wouldadvance his argument that the previous proceedings are having nothingto do with the present suit property as in stricto senso the presentsuit property is situated in S.No.178-A, whereas in the previousproceedings, along with other survey numbers, S.No.178-B alone wasthe subject matter, but here the litigation is relating to S.No.178-A; this subtle distinction has not been taken into account by boththe Courts below and simply they were carried away by therepresentation made by the respondents/defendants to the effect thatthe previous proceedings are squarely applicable to the present suit.Accordingly the defendants got the suit dismissed.9. Whereas, the learned counsel for the respondents/defendantswould develop his argument to the effect that it is not the case ofthe appellant/plaintiff before the trial Court or in his plaint thatS.No.178-A happens to be the subject matter of the suit; he haschosen to get incorporated only S.No.178 in the sale deed Ex.A2 aswell as in the schedule of property and thereby tried to grab theextent from out of the area covered under the earlier proceedings.He would also draw the attention of this Court by producing a copy ofthe Commissioner report filed before the lower Court and the learnedcounsel for the plaintiff also had a glance at it, which wouldreveal that the Commissioner appointed in those proceedings visitedthe suit property and located resurvey number 201/2, wherein helocated the suit property measuring 50' X 50'. According to himresurvey No.201/2 is not found sub divided or demarcated as 50' X50'.10. Whereas the learned counsel for the plaintiff/appellantherein would submit that in the earlier proceedings it was clearlypointed out that along with other survey numbers, S.No.178-B wasfound contemplated and that is described as one situated to the westof S.No.178-A. Precisely what I would understand from the submissionmade by the learned counsel for the plaintiff is that the presentsuit is only for S.No.178-A, whereas the learned counsel for thedefendant would submit that that is not the case at all of theplaintiff before the lower Court. If the plaintiff is claiming asurvey number over which the defendants are having no claim, thenthere could be no dispute at all. However in this case 50' X 50', asper the plaintiff, forms part of the land involved in theproceedings and in the present suit, a part of the said same propertyis sought to be litigated, which is not contemplated under law andboth the Courts below correctly held that the present suit is barredin view of the previous proceedings. https://hcservices.ecourts.gov.in/hcservices/

11. A plain reading of the plaint would be highlighting that thesuit property originally belonged to one Sankara Gounder, who sold itto Marappa Gounder S/o Muthu Gounder as per Ex.A1, the sale deeddated 16.07.1911. After Muthu Gounder, his son, namely KaithamalaiGounder and his grandson, namely Ramasamy Gounder inherited thesame. After the death of Kaithamalai Gounder, his son RamasamyGounder was in possession and enjoyment of the same and he leased outthe said suit property in favour of the plaintiff herein andthereafter alone he purchased it. The learned counsel for thedefendants herein would submit that no such lease deed was producedand nothing has been spotlighted that the plaintiff herein has beenin possession and enjoyment of the said suit property ever since 1987and as such, the present suit is nothing but an attempt to grab apart of the suit property which is covered under the earlierproceedings. 12. It is a trite proposition of law that the plaintiff whofiled the suit should prove his case. It is an admitted fact thatduring the pendency of the Second Appeal alone, this sale deedemerged and for that matter the alleged lease deed should have beenemerged, if true, during the pendency of the previous proceedingsand it is for the plaintiff to prove as to how the suit propertyinvolved in the previous proceedings is having nothing to do withthis property. However, both the Courts below after dealing with thematter came to the conclusion that the plaintiff has not proved thatthe present suit property is different from the earlier suitproperty. Put simply, the findings were purely based on analysis offactual evidence by the Courts below and as such, I could see noground to interfere with the finding of facts rendered by both theCourts below.13. The proposed substantial question of law No.1 is with regardto Ex.A2 sale deed. My above discussion supra would indicate andexemplify that both the Courts below after analysing the evidence onrecord arrived at the conclusion warranting no interference.14. The proposed substantial question of law No.2 is relating tores judicata and precisely after considering the previousproceedings, the Courts arrived at the conclusion that the previousproceedings operates as res judicata.15. The proposed substantial question of law No.3 is relating toadverse possession. In my considered opinion, the plea of adversepossession was not raised in the plaint. Hence that would not giverise to substantial question of law.16. At this juncture, my mind is redolent and reminiscent of thefollowing decisions of the Hon'ble Apex Court: https://hcservices.ecourts.gov.in/hcservices/ (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. . . .. . . ."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 the https://hcservices.ecourts.gov.in/hcservices/ question 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)"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. . . . https://hcservices.ecourts.gov.in/hcservices/ (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 alsorefers 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. HARNAMSINGH AND ANOTHER.It is therefore crystal clear that there should be substantialquestion of law for entertaining the second appeal. Here, mydiscussion supra would evince and spotlight that absolutely there isno question of law, much less substantial question of law is involvedin this matter. Accordingly, the Second Appeal is dismissed. Nocosts. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar gmsTo1. Principal District Court, Erode2. District Munsif Cum Judicial Magistrate, Perundurai+ 1 cc to Mr.N.Manokaran,Advocate,SR.10647+ 1 cc to Mr.T.Murugamanickam,Advocate,SR.10471S.A.No.1036 of 2008LA(CO)EM/10.6.09