J.Sivakami v. R.Xavier

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.12.2010Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos.1705 & 1706 of 2008andM.P.No.1 of 2008(in both)J.Sivakami... Appellant in S.A.No.1705 of 20081.M.Jayaraman2.Meena3.J.Sivakami4.Lilly5.J.Dinakaran... Appellants in S.A.No.1706 of 2008vs.R.Xavier... Respondent in both the S.As.These second appeals are filed against the judgements anddecrees dated 31.10.2008 passed by the II Additional Judge, CityCivil Court, Chennai, in A.S.Nos.130 and 131 of 2008 confirming thejudgments and decrees dated 19.11.2007 passed by the 4th AssistantJudge, City Civil Court, Chennai, in O.S.Nos.2955 of 2004 and 6495 of2005.For Appellants : Mr.G.Krishna Kumar For Respondent : Mr.K.P.GopalakrishnanCOMMON JUDGMENTThese second appeals are focussed animadverting upon thejudgements and decrees dated 31.10.2008 passed by the 2nd AdditionalJudge, City Civil Court, Chennai, in A.S.Nos.130 and 131 of 2008confirming the judgments and decrees dated 19.11.2007 passed by the4th Assistant Judge, City Civil Court, Chennai, in O.S.Nos.2955 of2004, which was the suit for permanent injunction filed by theappellant in S.A.No.1705 of 2008 and 3rd appellant in S.A.No.1706 of2008 and O.S.6495 of 2005, which was the suit for eviction andobtaining delivery of possession of the suit property, by therespondent in both these second appeals. https://hcservices.ecourts.gov.in/hcservices/

2. A summation and summarisation of the relevant factsabsolutely necessary and germane for the disposal of these secondappeals would run thus:(i) Sivagami-the sold appellant in S.A.No.1705 of 2008 and 3rdappellant in S.A.No.1706 of 2008 happened to be the plaintiff inO.S.No.2955 of 2004, which was one for seeking injunction, so as torestrain the respondent-Xavier-the respondent in both the secondappeals, from evicting her.(ii) Xavier-the respondent in both the second appeals hereinfiled the suit O.S.No.6495 of 2005 before the IV Assistant Judge,City Civil Court, Chennai, seeking eviction and for obtainingdelivery of possession of the suit property, which is founddescribed in the schedules appended to in both the plaints concerningthe aforesaid two suits. In other words the suit property is commonin both the suits.(iii) Xavier/the plaintiff in O.S.No.6495 of 2005 would contendthat earlier the entire property referred to in the schedule of theplaint was allotted to his father-Joseph Raja by the Slum ClearanceBoard. After his death, the property devolved upon him and hissister-Prema. While so, the said Prema, on receipt of a sum ofRs.25,000/- from Xavier, issued 'no objection certificate' forissuing Sale Deed in favour of Xavier, by the Slum Clearance Board. (iv) Whereupon, Xavier also paid the entire sale considerationin favour of the Slum Clearance Board and obtained the sale deeddated 22.9.2000 from the Slum Clearance Board. (v) Sivagami-the appellant in S.A.No.1705 of 2008 (plaintiff inO.S.No.2955 of 2004) along with others, namely, Jeyaraman, Tmt.Meena,Tmt.Lalli and Dinakaran, who are also appellants in S.A.No.1706 of2008, happened to be residing in a portion in the property referredto in the plaint and it appears, bad blood started running in therelationship of the said Xavier on the one side and the appellantsherein on the other side and as such, Xavier revoked the permissionto occupy given to them and sought for eviction. (vi) Inasmuch as there was non-compliance on the part of theappellants therein, the aforesaid two suits emerged, one at theinstance of Sivagami for injunction and another at the instance ofXavier for obtaining delivery of possession of the suit property.Both the suits were resisted by the respective defendants.(vii) Whereupon issues were framed and a joint trial wasconducted. On the side of Sivagami, she examined herself as P.W.1 andmarked Exs.A.1 to A5. On Xavier's side, he examined himself as D.W.1along with D.W.2 and marked Exs.B.1 to B11. https://hcservices.ecourts.gov.in/hcservices/ (viii) Ultimately, the trial Court by a common judgmentdismissed the injunction suit (O.S.No.2955 of 2004) filed by Sivagamiand decreed the suit (O.S.No.6495 of 2005) filed by Xavier.(ix) Being aggrieved by and dissatisfied with the commonjudgment and decrees rendered by the trial Court, two appeals werefiled before the II Additional Judge, City Civil Court, Chennai, fornothing but to be dismissed by the appellate Court, confirming thecommon judgment and decree of the trial Court.3. Challenging and impugning the common judgment and decrees inboth the appeals, these two second appeals have been filed on variousgrounds, the gist and kernal, the piths and marrow of them would runthus:(a) The Courts below fell into error in not considering the factthat Prema had no necessity to obtain a sum of Rs.25,000/- from herbrother-Xavier, in connection with the alleged marriage of herdaughter. (b)The alleged borrowal is stated to have taken place during theyear 1996, whereas, the marriage of the daughter of Prema took placeonly in the year 2003 and these facts were not taken intoconsideration by the Courts below. (c) The Slum Clearance Board was not added as a party and that apartition suit also has been filed by Sivagami and others as againstXavier and as such, the appellants would pray for setting aside thejudgments of the Courts below and for decreeing the injunction suitfiled by Sivaghami and for dismissing the suit filed by Xavier.4. Reiterating the aforesaid grounds, the learned counsel forthe appellants would submit that substantial questions of law areinvolved in this case as found set out in the memoranda of thegrounds of appeals. 5. By way of torpedoing and pulverising the arguements as putforth and set forth on the side of the appellants in the secondappeals, the learned counsel for the respondent in both the appealswould advance his arguements, the gist and kernal of them would runthus:(i) The Slum Clearance Board issued the sale Deed Ex.B.8 dated22.9.2000 in favour of Xavier, even during the life time of Xavier'ssister-Prema, who happened to be the mother of Sivagami.(ii) The impleadment of the statutory authority, namely, theSlum Clearance Board, in these proceedings does not arise at all forthe reason that the Sale Deed was already executed by the statutory https://hcservices.ecourts.gov.in/hcservices/ authority and only in respect of a portion of the area covered by theSale Deed, eviction was sought for and in such a case, there is noillegality or infirmity in the suit filed by Xavier.(iii) There is no substantial question of law involved in theseappeals.Accordingly, the learned counsel for the respondent prays for thedismissal of both the appeals.6. At this juncture, it is just and necessary to reproducehereunder the suggested substantial questions of law as found set outin the memoranda of grounds of appeals."(A) Whether the Courts below are right in dismissing thesuit filed by the appellant when it is admitted by therespondent that the appellants herein are the co-owners ofthe suit property.(B) Whether the courts below are right in held that theappellants are in permissive occupation when there is noevidence to the effect that about the date of possessionand date of permission?(C) Whether the courts below are right in held that merelyno reply to the Ex.B10 the legal notice issued by therespondent herein that the appellants were in permissiveoccupants?(D) Whether the Courts below are right in held that whenthe Tamil Nadu Slum Clearance Board not a party in the suitfiled by the respondents herein who is necessary party inthe suit?(E) Whether the lower appellate Court is right in held thatthe appellants were not entitled for the relief as prayedfor by them in O.S.No.2955 of 2004 when admittedly there isa suit filed by the appellants for partition anddeclaration of the sale deed executed in favour of therespondent as null and void on the file of Hon'ble IIAssistant City Civil Court, Chennai in O.S.No.4879 of 2008?(extracted as such)7. Before discussing the rival contentions put forth on eitherside, I fumigate my mind with the following decisions of theHonourable Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS.SESHAMMAL,certain excerpts from its would run thus:- https://hcservices.ecourts.gov.in/hcservices/ "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 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. . . . . . 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 the https://hcservices.ecourts.gov.in/hcservices/ decision 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. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below. https://hcservices.ecourts.gov.in/hcservices/ 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.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:A plain reading of those precedents would reveal and demonstratethat under Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved in the matter.8. The proposed substantial Question of Law (A) as suggested bythe appellants, is general in nature and it is quite obvious that itcannot be taken as a substantial question of law at all and no moreelaboration in this regard is required. However, the appellantswould try to put forth as though they happened to be the co-owner ofthe suit property. Both the Courts below, after analying the facts,arrived at the conclusion that Xavier is armed with the valid SaleDeed executed by the statutory authority and in such a case, thequestion of entertaining the plea of co-ownership and all would notarise. As against such clear finding of fact, there is not even anyremote possibility of formulating any substantial question of lawwould arise. As such, the proposed substantial question of law (A)does not arise.9. The proposed Substantial question of laws (B) and (C): Theseare based on factual findings rendered by the Courts below;accordingly no substantial question of law could be formulated. Thetrial Court found that the Slum Clearance Board executed a valid SaleDeed in favour of Xavier and accordingly proceed to decree the suitO.S.No.6495 of 2005 filed by Xavier. Whereas, the nature of pleatried to be canvased even before this Court was purely based onfactual points. The contention on the side of the appellants thatthe marriage of Prema's daughter took place only in the year 2003 andin such a case, Prema might not have occasion to borrow Rs.25,000/-from Xavier cannot be taken as a law point and as such, I am of theview that there is no perversity or illegality in the judgmentsrendered by the Courts below. https://hcservices.ecourts.gov.in/hcservices/

10. Substantial Question of Law (D): Under this substantialquestion of law the non-impleadment of Tamil Nadu Housing Board hasbeen taken as a plea. I am of the view that in a suit for evictionbased on a Sale Deed executed by the Slum Clearance Board, the SlumClearance Board is not at all a necessary party and in such a casethat question also does not arise.11. Proposed Substantial Question of Law (E): The appellantscontended that the partition suit O.S.No.4879 of 2008 is pending atthe instance of Sivagami and others as against Xavier relating to thesame property. I am of the view that the said suit emerged pendentelite of the first appeal and so far this case is concerned, this hasto be considered independently taking into account the meritsinvolved. I am of the view that no counter claim also was made bythe appellants herein in the written statement filed in the suitfiled by Xavier. The Courts, from the available materials, decidedthe lis and there is no perversity or illegality in the findings, soas to warrant framing of any question of law, much less substantialquestion of law in this case. 12. In view of the ratiocination adhered to above in decidingthe substantial questions of law, I am of the view that there is nomerit in second appeals and accordingly, both the second appeals aredismissed. However, there is no order as to costs. Connectedmiscellaneous petitions are dismissed.13. The learned counsel for the appellants would make anextempore submission that five months' time may be granted forvacating the place. The learned counsel for the respondent/Xavier isalso having no objection for granting time. Accordingly, fivemonths' time is granted for vacaing the suit property by theappellants and an affidavit shall be filed by the appellants to thateffect within 10 days from this date.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarMsk https://hcservices.ecourts.gov.in/hcservices/ ToThe Registrar,City Civil Court,Chennai.1 cc to Mr.G.Krishnakumar, Advocate, Sr.No.899231 cc to Mr.K.P.Gopalakrishnan, Advocate, Sr.No.89862 S.A.Nos.1705 & 1706 of 2008KM {CO}TP/21.12.2010.