Sellakumarasamy v. P.Swaminathan

plaintiff's exclusive possession and enjoyment of the suitproperty; or in any manner preventing the plaintiffs fromcutting the standing trees in the suit property"The respondents 1 to 5 in S.A.No.166 of 2009 filed the suitO.S.No.130 of 1995 seeking the following relief:"To direct the first defendant, by way of mandatoryinjunction, to rectify all the revenue records includingfiled Map with regard to suit B Schedule propertyR.S.BNo.107/1 of Virumandampalayam Village either excludingthe portion of 0-531/2 acres of old Survey Number 386/1 thatis southern portion of suit 'A' schedule property includingin the same or to include the name of plaintiffs also asproprietors of the same."As such, both the suits were interrelated and interlinked,interconnected and entwined with each other, which necessitated thelower Court to correctly conduct the joint trial and pronounce thecommon judgement.(b) In both the suits, the defendants concerned resisted thesuit. During the trial, on the side of the plaintiffs, the firstplaintiff in O.S.No.130 of 1995, examined himself as P.W.1 apart fromexamining one Maruthachalam as P.W.2 and marked Exs.A1 to A7. Thesecond defendant in O.S.No.130 of 1995 examined himself as D.W.1apart from examining Palanisamy as D.W.2 and Easwaramurthy as D.W.3and Ex.B1 to Ex.B8 were marked. Ananthakrishnan-AdvocateCommissioner, was examined as C.W.1 and Exs.C1 to C5 were also marked.(c) Ultimately the trial Court dismissed the suit O.S.No.88 of1995 filed for injunction by Sellakumarasamy-the appellant inS.A.No.166 of 2009 and decreed the suit O.S.No.130 of 1995 filed bySwaminathan et al.(d) Being dissatisfied with the said common judgement,A.S.Nos.56 of 2004 and 56 of 2005 were filed by Sellakumaraswamy fornothing but to be dismissed by the appellate Court confirming thejudgement and decree of the lower Court.2. Being unhinged and disconcerted by the said judgements anddecrees, these second appeals have been filed by Sellakumarasamy onvarious grounds and also suggesting the following substantialquestions of law:"a) Is not the suit barred under Section 14 of TamilNadu Survey and Boundaries Act, 1923?b) Whether the courts below are justified in decreeingthe suit for mandatory injunction directing the Government https://hcservices.ecourts.gov.in/hcservices/ to rectify the resurvey and revenue records, without therespondents 1 to 5/plaintiffs establishing their title tothe suit property?" 3. A bare perusal of and poring over the typed set of papers,including the copies of the judgements of both the Courts below,would display and demonstrate, expatiate and evince that theplaintiffs in O.S.No.130 of 1995, namely, Swaminathan and fourothers impugning and remonstrating the procedure adopted by theRevenue officials, filed the suit seeking comprehensive relief, asset out supra. Whereas the second appellant in both the appeals,namely, Sellakumarasamy, in O.S.No.88 of 1995 sought for injunction.4. The main thrust of the contention of the second appellant-Sellakumarasamy would be to the effect that the Civil Court has gotno jurisdiction to entertain the suit O.S.No.130 of 1995 filed bySwaminathan and others on the ground that the fixation of boundariesby the Revenue authority concerned, under the Tamil Nadu Survey andBoundaries Act, 1923(hereinafter referred to as the 'Act' in short),could be challenged within three years from the date of publicationin the gazette. Hence, it is just and necessary to extract hereunderSection 14 of the Act:"14. Institution of a suit in civil Court within threeyears to establish rights claimed in respect of theboundary of the property surveyed. - Any person deeminghimself aggrieved by the determination of any boundaryunder Section (9, 10, 11, 12-A or 12-B) may, subject to theprovisions of Parts II and III of the Indian LimitationAct, 1963 (Central Act 36 of 1963) institute a suit withinthree years from the date of the notification under Section13s to set aside or modify the said determination and thesurvey shall if necessary, be altered in accordance withthe final decree in the suit and the alteration, if any,shall be noted in the record.The plaintiff in such suit shall join as parties to itall persons whom he has reason to believe to be interestedin the boundary which is the subject of suit."5. At this juncture, my mind is reminiscent and redolent ofsimilar provisions as found set out in the Tamil Nadu Minor Inams(Abolition and Conversion into Ryotwari) Act, 1963 (T.N.Act.No.30 of1963). 6. Based on the aforesaid provision, the following Full Benchdecision of this Court emerged:1998 (I) CTC 630 in Srinivasan and six others Vs. SriMadhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its https://hcservices.ecourts.gov.in/hcservices/ Executive Officer at Pattavaithalai Devasthanam and five others.Certain excerpts from it would run thus:"The Supreme Court in the decision reported in State ofTamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794observed that the powers of the statutory authorityconstituted under the Act are exercised in a summary mannerand the claims of occupants comes to be determined onlyincidentally and they cannot be equated with the CivilCourts in respect of what they could do or the nature ofrelief that they could grant. A careful analysis of thescheme underlying these abolition laws would go to show thatthe vesting on abolition under everyone of theselegislations are subject to the pre-existing rights of theoccupants, except in respect of what are known as public orcommunal properties, meant for common use and the grant ofpatta has been always considered and held to be inrecognition of their pre-existing rights. The provisionsrelating to abolition and vesting of the properties do nothave the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public orcommunal properties and the rights which inhere are thebasis and fundamental rights which entitle a person topreferentially get patta under these legislations and thesame could not be equated to the grant of patta by way ofassignment under the Revenue Standing Orders or under rulesof assignment outside the scope of the statutory enactments.Similarly, a meticulous analysis of the scheme underlyingthe provisions of the Act dealing with the nature of rightsdealt with by the various authorities, the manner in whichsuch authorities adjudicate such rights and the consequencesof such adjudication, disclose that they do not mean andeven intended to be a substitute or alternate mode ofresolution of the ordinary civil right of a citizen or forthat matter persons asserting competing claim, in theirattempt to project a claim for patta. Consequently, in ourview, the ratio of the decisions of the Apex Court reportedin State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR1986 SC 794, R.Manicka Naicker Vs. E.Elumalai Naicker, 1995(4) SCC 156 and Sayyed Ali Vs. A.P.Wakf Board, Hyderabad,1998(2) SCC 642 and that of a Division Bench of this Courtin Ramanujam Kavirayar, T.K. Vs. Sri-La-Sri SivaprakasaPandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learnedsingle Judge of this Court in Samsuddin Rowther and anotherVs. Avvammal and 2 Others, 1992 (1) L.W. 207 would squarelyapply and govern the case and consequently, it has to benecessarily held that the jurisdiction of the Civil Courtscannot be held to have been completely ousted or barred atany rate in respect of adjudication of claims of title andquestions or issues which are not obliged or required to be https://hcservices.ecourts.gov.in/hcservices/ adjudicated for the purposes of enforcement of these lawswhich has, as their objection and aim, to implement ryotwarisettlement in the areas governed by them.15.Further, the mere fact that the orders passed ordecisions rendered under these Acts were given finality forthe purposes of those Acts or that the issues, which theyare obliged or required to be decided, when so decided areordained to bind the parties to the proceedings or theirprivies and successors-in-interest applying the principlesof res judicata, does not have the effect of ousting thejurisdiction of the Civil Court once and for all. It is bynow well settled that even in cases where finality isaccorded to any decision or order, there are certain wellsettled exceptions and proved and existence of suchexceptional factors, the Civil Court is entitled to nullifyany or all such decisions. Similarly, even in cases wherethe principles of res judicata are rendered applicable, thejurisdiction of the competent Civil Court to go into thequestion and find out whether the necessary ingredients toapply the principles of res judicata exist in a given caseor not cannot be denied to the Civil Courts and from themere fact of according finality to the orders or decisionsrendered under the Act or the application of the principlesof res judicata, a total or complete bar or ouster of thejurisdiction of the Civil Courts for all and any purposecannot be automatically inferred or implied. Before a pleaof res judicata can be given effect to, it must besufficiently pleaded and established that the litigatingparties must be the same, that the subject matter of thesuit and the other proceedings also are identical, that thequestions arising in the suit and the other proceedings weredirectly and substantially in issue and the same was finallydecided and that too by an authority or Court of competentjurisdiction.16.On coming to know of the existence of an unreporteddecision of the Apex Court rendered by a Bench consisting ofthree of their Lordships, efforts were made to secure thesame when the judgement in this case was under preparationand it was ascertained that in Sri-La-Sri SivaprakasaPandara Sannadhi Avargal Vs. Smt.T.Parvathi Ammal & Ors.,1998 (I) CTC 585. Their Lordships of the Apex Court by ajudgment dated 20.02.1996, not only approved the earlierdecision of the Apex Court reported in R.Manicka Naicker Vs.E.Elumalai Naicker, 1995(4) SCC 156 and set their seal ofapproval to the principles laid down therein, but hascategorically held in unmistakable terms with the decisionin Vatticherukuru Village Panchayat Vs. Nori VenkataramaDeekshithulu, 1991 Supp (2) SCC 228 has no application to https://hcservices.ecourts.gov.in/hcservices/ the provisions or in respect of claims arising under theTamil Nadu Minor Inams (Abolition and Conversion intoRyotwari) Act, 1963. Their Lordships of the Apex Court incoming to such a conclusion, held as follows:"The only question for decision relates tothe jurisdiction of the Civil Court to entertainthe suit which was filed by the respondents. Thetrial Court decreed the suit. The First appellateCourt set aside the decree taking the view thatthe Civil Court's jurisdiction was barred. In thesecond appeal filed by the present respondents,the High Court has restored the judgment anddecree of the trial Court taking the view thatthe Civil Court's jurisdiction was not barred.The plea of exclusion of the Civil Court'sjurisdiction to adjudicate the title of theparties in the present case is based on theprovisions of the Tamil Nadu Minor Inam(Abolition and Conversion into Ryotwari) Act,1963. This Court in a recent decision inR.Manickanaicker Vs. E.Elumalainaicker, 1995(4)SCC 156, has clearly held that the Civil Court'sjurisdiction to adjudicate title of the parties,is not barred by virtue of the provisions of thesaid Act. This is a direct decision of this Courton the provisions of the Act with which we areconcerned for the appellant placed reliance onthe decision in Vatticherukuru Village PanchayatVs. Nori Venkatarama Deekshithulu and Ors., 1991(Supp.) 2 SCC 228. It is sufficient to observethat this decision relates to the provisionsunder a different Act of Andhra Pradesh.Moreover, in R.Manickanaicker, this decisionrelating to the provisions in the Andhra PradeshAct was considered and distinguished. In view ofthe direct decision of this Court inR.Manickanaicker, there is no merit in thisappeal. The appeal and the contempt petition aredismissed."17.In view of the above unreported decision of theSupreme Court, the decision in A.Vanathan Muthuraja Vs.Ramalingam, 1997 (6) SCC 143, rendered without evenreferring to the earlier reported decision of the very sameCourt in R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4)SCC 156 and the unreported decision of even a larger Benchdirectly arising under the Tamil Nadu Act 30 of 1963,cannot be said to lay down or declare the correct position https://hcservices.ecourts.gov.in/hcservices/ of law or constitute a binding precedent.18.For all the reasons stated above, we answer thequestion referred to the Full Bench in the negative byholding that the jurisdiction of the Civil Court toentertain a suit for declaration of title and injunction isnot barred by reason of the grant of patta under theprovisions of Tamil Nadu Act 30 of 1963." As such, the said decision governs the field. 7. It is ex facie and prima facie clear that the ratiocinationadhered to by the Full Bench in interpreting the provisions found inthe Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari)Act, 1963 (T.N.Act.No.30 of 1963), can also be applied in respect ofSection 14 of the Tamil Nadu Survey and Boundaries Act. Where eversubstantial property right of a citizen is involved, the civilCourt's right cannot be taken away by the Special enactment and thattoo, when the Special enactment is only for preparation of Surveyrecords and such like. Herein in this matter it is pellucidly andpalpably, obviously and axiomatically clear that the aim of theO.S.No.130 of 1995 was to get asserted the plaintiffs' propertyright, as owners of suit property based on their pre-existingownership right de hors survey proceedings.As such, the aforesaidFull Bench decision squarely can be pressed into service as againstthe proposed suggested substantial question of law (a) as put forthby the second appellant in both the appeals.8. The proposed suggested substantial question of law (b) isrelating to the fact as to whether the Courts below are having rightto mandate the Government Officials to rectify the resurvey andRevenue records.9. I am fully aware of the fact that statutory authorities areexpected to exercise their powers and perform their duties as perRules. Here it is a peculiar case, in which the contention of theplaintiffs Swaminathan and others in O.S.No.130 of 1995 was to theeffect that a portion of their land, during Survey, was shown asthough it belongs to the defendants and in that connection, theyadduced evidence before the trial Court.10. When the matter was pending before the lower Court,Commissioner was appointed, who visited the suit property, measuredthe same and submitted his report and sketch. Exs.C1 to C3 are therelevant Commissioner's report and sketch. The trial Court alsounder paragraph 15 highlighted as to how after annulment of Exs.C1 toC3 earlier by the District Court, once again the Commissioner wasdirected to visit the suit property and do the needful andaccordingly the Commissioner submitted Ex.C4 and Ex.C5 and that noobjections were filed by any one. The Commissioner also was examined. https://hcservices.ecourts.gov.in/hcservices/

11. In paragraph 16, the trial Court adverted to the Partitiondeed Ex.B1-dated 12.11.1935 relied on by D2 as a title deed, whichcontemplated Old S.F.No.386 measuring an extent of 12 acres 17 cents,in which the second defendant is entitled to 8 acres 11 cents.Ex.A1-the Partition Deed dated 1.3.1928 refers to old Survey No.386,measuring an extent of 2.03 acres, which was allotted to VaranavasiGounder and an extent of 2.02½ acres was allotted to one MarappaGounder and those two lands were situated on the North of the landof the second defendant's father-Karuppa Gounder. The lower Courtheld that an extent of 2.03 + 2.02½ = 4.05½ acres of land in old S.FNo.386 was allotted to Varanavasi Gounder and Marappa Gounder-thepredecessors in title of the plaintiffs and as such, after deductingthat extent from 12 acres 17 cents, there remained 8.11½ cents.There were no land dispute between the parties concerned prior to thesurvey undertaken by the officials concerned. 12. The property in dispute is situated in R.S.No.107/1, overwhich the defendants claim ownership right because of the recentwrong survey. Whereas the plaintiffs claim ownership right over oldSurvey No.386/1 and during resurvey part of the said number was shownin R.S.No.107/1. It is also the case of Swaminathan and others, whoare the defendants in O.S.No.88 of 1995 that they came to know aboutthis discrepancy only on receipt of the copy of the plaint. Thetrial Court also deeply discussed all those factual aspects and theCommissioner's report and sketch and arrived at the conclusion thatin respect of the parties' title over the respective portions areconcerned, there is no dispute and because of the wrong surveyeffected, there arose dispute.13. Paragraphs 19 and 20 of the judgement of the lower Courtare extracted hereunder for ready reference:"19. The Commissioner had clearly reported in hisreport and plan that a part of the old Survey No.386/1 hasbeen included in that R.S.No.107/1. The Commissioner hasgiven the clear measurements of the portions of the land,which formed pat of the old Survey No.386/1 and which nowformed part of the new R.S.No.107/1 and he has shaded italso in green and had shown in his plan Ex.C5. There is nodispute with regard to the fact that this green markedportion is the same as found by the Commissioner in hisearlier Survey Report Ex.C3 also.20. The Commissioner has also categorically stated thatR.S.No.106/2 and 105/2 are also situated in the oldS.F.No.386/2. The Commissioner has also averred in hisevidence that these extent of lands in R.S.No.D6/2 and 105/2is also situated on the west of the demarcating fence. TheCommissioner's Survey plan Ex.C5 clearly shows that the old https://hcservices.ecourts.gov.in/hcservices/ S.F.No.386/2 is given the new R.S.F.Nos.107/1, 107/2 and106/2 and 105/2. The Commissioner's plan-Ex.C5 also clearlyshows that the corresponding R.S.No.107/3 relates to the oldS.F.No.389. This fact tallies with the A.Regr. ExtractEx.A5 relied upon by the plaintiffs. As such, there is notruth in the document – Ex.B2 relied on by the seconddefendant."14. Once, based on documentary evidence and actual measurement,the lower Court has arrived at the conclusion that the seconddefendant is entitled to, according to his version, 8.11 acres in oldS.F.No.386/2, as per the Partition Deed-Ex.B1, and as such, thequestion of disputing the claim of the plaintiffs over their extentdoes not arise and all trouble erupted because of wrong survey, whichis also found discussed under paragraph 21 of the judgement of thelower Court. 15. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Honourable Supreme 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 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 such https://hcservices.ecourts.gov.in/hcservices/ as 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)"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 the https://hcservices.ecourts.gov.in/hcservices/ decision 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 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, 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 statutory https://hcservices.ecourts.gov.in/hcservices/ right, 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." 16. A plain reading of the above judgements would leave nodoubt that unless there is substantial question of law involved in amatter, no second appeal would lie. Understanding the implicationsof those judgements only, the appellant in both the second appealstries to make out a case only based on Section 14 of the Tamil NaduSurvey and Boundaries Act, which also, as discussed supra, is nottenable in view of the Full Bench decision of this Court. 17. The contention of the appellants in both the appeals thatthe civil Court will not have jurisdiction to direct the officials torectify the records is neither here nor there. Once the civil Court,which is competent to decide on the property right of the partiesconcerned, comes to a definite conclusion of ownership right, as anatural corollary directions should follow to the authorities to makenecessary corrections incommensurate with the necessary findings ofthe civil Court and any distinction sought to be made between thepower of the civil Court to declare title of the parties with that ofthe civil Court's power to direct the Revenue official to correct theRevenue records correspondingly, is one that of tweedledum andtweedledee. Once the civil Court decides the substantive right ofthe parties, then it should all reflect in the Revenue records andsurvey records. As such, the proposed suggested substantial question https://hcservices.ecourts.gov.in/hcservices/ of law (b) also is turned out to be a pococurante and insouciant one. 18. In respect of the injunction suit O.S.No.88 of 1995 filed bythe appellant in the second appeals, the lower Court gave its findingbased on oral and documentary evidence and that there was nothing toindicate that the appellant in second appeals herein is in possessionand enjoyment of the said area. Such a finding is purely based offactual aspects, warranting no interference by this Court. 19. The trial Court disbelieved the oral evidence on the side ofthe second appellant herein relating to his alleged possession overthe suit property and rendered its finding that the defendants inO.S.No.88 of 1995 have been in possession and enjoyment of the suitproperty and accordingly rejected the second appellant's prayer forinjunction.20. To the risk of repetition without being tautalogous, Iwould highlight that the said finding relating to possession, basedon analysis of facts, by both the Courts below cannot be re-appreciated by the High Court in Second appeal. Hence, I could seeno perversity in the judgements and decrees of both the Courts below.21. In the result, the second appeals are dismissed confirmingthe judgements and decrees of both the Courts below. No costs.Consequently, connected miscellaneous petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.MskTo1.The First Additional Subordinate Judge, Erode2.The District Munsif cum Judicial Magistrate, Perundurai+ 2 CC To Mr.A.K.Kumarasamy, Advocate SR NO.8269 &8270 S.A.Nos.166 & 167 of 2009RSI {CO}TP/23.4.2009.