Thangavel v. Dharmalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:6.4.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.431 of 2007Thangavel... Appellant/Plaintiff Family Managervs.1.Dharmalingam2.Angamuthu3.Ramasami4.Natrajan5.Subramanian... Respondents/Defendants This second appeal is filed against the judgement anddecree dated 15.3.2004 passed in A.S.No.253 of 2002 by theDistrict Judge,Perambulur, confirming the judgement and decreedated 31.7.1997 passed by the District Munsif, Perambulur, inO.S.No.321 of 1993.For Appellant : No appearanceFor Respondents : Mr.R.VasudevanJUDGMENTThis second appeal is focussed by the plaintiff,animadverting upon the judgement and decree dated 15.3.2004passed in A.S.No.253 of 2002 by the District Judge,Perambulur,confirming the judgement and decree dated 31.7.1997 passed bythe District Munsif, Perambulur, in O.S.No.321 of 1993, whichwas filed for declaration and permanent injunction. For thesake of convenience, the parties are referred to hereunderaccording to their letigative status before the trial Court. 2. A summation and summarisation of the relevant facts,which are absolutely necessary and germane for the disposal ofthis second appeal, would run thus:The appellant/plaintiff filed the suit O.S.No.321 of 1993as against the defendants, seeking the following relief: https://hcservices.ecourts.gov.in/hcservices/ "to declare the title of the plaintiff to thesuit properties and as a consequential relief ofpermanent injunction from in any manner interferingwith the plaintiff's peaceful possession andenjoyment of the suit properties at any time and inany manner."(extracted as given in the plaint)The first defendant entered appearance and filed the writtenstatement.3. The trial Court framed the relevant issues. Duringenquiry, the plaintiff examined himself as P.W.1 along withone Kannan as P.W.2 and Exs.A1 and A28 were marked. On thedefendants' side the first defendant examined himself as D.W.1along with one Muthu as D.W.2 and Ex.B1 to B.23 were marked. 4. Ultimately, the trial Court dismissed the suit. Asagainst which, the plaintiff preferred the appeal A.S.No.253 of2002, which was dismissed by the first appellate Court,confirming the the judgement and decree of the trial Court.5. Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, the plaintiff filed thissecond appeal on various grounds and also suggesting thefollowing substantial questions of law. "(1) Whether the lower appellate Court havingfound that the suit lands covered by Ex.A1 old pattaNo.66, in the name of father of the appellant; andthat the family members of appellant had paid taxesunder Ex.A2-A14, A23-27, was justified in law inholding that the non-production of any title deed,disentitled the appellant from claiming exclusivetitle to the suit lands/(2) Whether the lower appellate Court, withoutany evidence, in regard to the alleged partition andseparate possession put forward by the firstrespondent/first defendant was right in law ingranting ½ share in the suit lands in favour of thefirst defendant/first respondent?(3) The appellant having produced the originalpatta Ex(A1) and UDR patta Ex.(A20), tax receiptsExs.A2 to A4, and A23 to A27 the lower appellateCourt was right in law in refusing the grant, therelief of permanent injunction against thedefendants/respondents who attempted to trespassupon the suit lands?(extracted as such) https://hcservices.ecourts.gov.in/hcservices/

6. A deep analysis of the typed set of papers, includingthe judgements of both the Courts below and also consideringthe arguments of the defendants would display and demonstratethat the plaintiff filed the suit seeking barely fordeclaration and injunction, describing and labelling thedefendants as utter strangers. However, both the Courts belowgave a concurrent finding that the plaintiff and the defendantsare not strangers, but they are relatives to the plaintiff.7. The learned counsel for the defendants would copiouslyand convincingly, based on records, narrate and portray thatone Gurunathan was the original owner of the suit property, whohad two sons, namely, Thiruvannamalai and Ramalingam.Thiruvannamalai had his son Palani, who had his sonDharmalingam-the first defendant herein. Ramalingam diedleaving behind three children, of whom, Thangavel-the plaintiffwas one of his heirs. It is the said Thangavel, who venturedand chosen to project D1 as a stranger to him and seek to getdeclaration and injunction in respect of the suit property.8. The learned counsel for the defendants also invited theattention of this Court to paragraph No.6 of the judgement ofthe trial Court and developed his argument that there is aclear finding based on evidence by the trial Court to theeffect that the plaintiff himself admitted that the defendantsare in possession to an extent of half of the suit property andcertain portions are also leased out by them and they areenjoying it. Over and above that, the original Revenue recordsbespeak in support of the defendants' possession and enjoymentof the half share in the suit property. The first appellateCourt in paragraphs 12 and 13 discussed the possession of thehalf share of the suit property being with the defendants. Thefirst appellate Court also refers to Exs.A2 to A8-the taxreceipts, which stand in the name of Manonmaniammal-the motherof D1. Ex.A9 to Ex.A11-the tax receipts stand in the name ofGurunathan-the original owner. Ex.A12 to A.14 are the taxreceipts in the name of Ponnusamy-the son of Ramalingam.9. The first appellate Court also appositely lookedaskance at the plaintiff's attitude and held that he did notapproach the Court with clean hands, as in Ex.A20-UDR Pattaproduced by the plaintiff, the name Dharmalingam-D1 is foundscored out. It is a common or garden principle of law that nopatta could be altered by mere scoring out. There should berelevant proceedings by which only such deletion could takeplace. Hence, the first appellate Court appropriately andcorrectly found fault with the plaintiff in his attitude inproducing such mutilated Ex.A20 before the trial Court toachieve success in the litigative battle by hook or by crook. https://hcservices.ecourts.gov.in/hcservices/

10. It is a trite proposition of law that the onus ofproof is on the plaintiff to prove his case. The plaintiff hasto stand or fall on his own evidence. Here it is the specificcase of the plaintiff that the plaintiff is the absolute ownerof the suit property and that he has been in possession andenjoyment of the same and the defendants are trying to barge inand be in irruption of it. But the judgements of both theCourts below would expose and expatiate, detail and delineatethe relevant facts to the effect that the plaintiff himselfadmitted that the defendants are in possession of half of thesuit property. Hence, I could see no question of law much lesssubstantial question of law arisen in this case. 11. At this juncture, I recollect and call up thefollowing decisions of Honourable Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from itswould run thus:-"17. After the amendment a second appeal can befiled only if a substantial question of law isinvolved in the case. The memorandum of appeal mustprecisely state the substantial question of lawinvolved and the High Court is obliged to satisfyitself regarding the existence of such a question.If satisfied, the High Court has to formulate thesubstantial question of law involved in the case. . .. . . . ."18. . . . . . It has to be kept in mind thatthe right of appeal is neither a natural nor aninherenth right attached to the litigation. Being asubstantive statutory right, it has to be regulatedin accordance with law in force at the relevant time.The conditions mentioned in the section must bestrictly fulfilled before a second appeal can bemaintained and no court has the power to add or toenlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the HighCourt in exercise of the powers under this section.Further, a substantial question of law has to bedistinguished from a substantial question of fact. .. . . . 21. . . . . However, it is clear that thelegislature has chosen not to qualify the scope of"substantial question of law" by sufficing the words"of general importance" as has been done in manyother provisions such as Section 109 of the Code or https://hcservices.ecourts.gov.in/hcservices/ Article 133(1)(a) of the Constitution. Thesubstantial question of law on which a second appealshall be heard need not necessarily be a substantialquestion of law of general importance. In GuranDitta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of thethen existing Section 100 CPC (since omitted by theAmendment Act, 1973) came up for consideration andtheir Lordships held that it did not mean asubstantial question of general importance but asubstantial question of law which was involved in thecase. In Sir Chunilal case the Constitution Benchexpressed agreement with the following view taken bya Full Bench of the Madras High Court in RimmalapudiSubba Rao v. Noony Veeraju(Sir Chunilal case, SCRp.557)"When a question of law is fairly arguable,where there is room for difference of opinion on itor where the Court thought it necessary to deal withthat question at some length and discuss alternativeviews, then the question would be a substantialquestion of law. On the other hand if the questionwas practically covered by the decision of thehighest court or if the general principles to beapplied in determining the question are well settledand the only question was of applying thoseprinciples to the particular fact of the case itwould not be a substantial question of law."This Court laid down the following test as propertest, for determining whether a question of lawraised in the case is substantial:(Sir Chunilal case,SCR pp.557-58)"The proper test for determining whether aquestion of law raised in the case is substantialwould, in our opinion, be whether it is of generalpublic importance or whether it directly andsubstantially affects the rights of the parties andif so whether it is either an open question in thesense that it is not finally settled by this Court orby the Privy Council or by the Federal Court or isnot free from difficulty or call for discussion ofalternative views. If the question is settled by thehighest court or the general principles to be appliedin determining the question are well settled andthere is a mere question of applying those principlesor that the plea raised is palpably absurd thequestion would not be a substantial question of law."23. To be "substantial" a question of law mustbe debatable, not previously settled by law of the https://hcservices.ecourts.gov.in/hcservices/ land or a binding precedent, and must have a materialbearing on the decision of the case, if answeredeither way, insofar as the rights of the partiesbefore it are concerned. To be a question of law"involving in the case" there must be first afoundation for it laid in the pleadings and thequestion should emerge from the sustainable findingsof fact arrived at by court of facts and it must benecessary to decide that question of law for a justand proper decision of the case. An entirely newpoint raised for the first time before the High Courtis not a question involved in the case unless it goesto the root of the matter. It will, therefore,depend on the facts and circumstance of each casewhether 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 dojustice at all stages and impelling necessity ofavoiding prolongation in the life of any lis.(SeeSantosh Hazari v. Purushottam Tiwari).24. . . . (iii) The general rule is that High Court willnot interfere with the concurrent findings of theCourts below. But it is not an absolute rule. Someof the well-recognised exceptions are where (i) theCourts below have ignored material evidence or actedon no evidence; (ii) the courts have drawn wronginferences from proved facts by applying the lawerroneously; or (iii) the courts have wrongly castthe burden of proof. When we refer to "decisionbased on no evidence", it not only refers to caseswhere there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as awhole, is not reasonably capable of supporting thefinding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS.HARNAM SINGH AND ANOTHER, an excerpt from it wouldrun thus- 9. It has been noted time and again that withoutinsisting for the statement of such a substantialquestion of law in the memorandum of appeal andformulating the same at the time of admission, theHigh Courts have been issuing notices and generallydeciding the second appeals without adhering to theprocedure prescribed under Section 100 of the Code.It has further been found in a number of cases thatno efforts are made to distinguish between a questionof law and a substantial question of law. In https://hcservices.ecourts.gov.in/hcservices/ exercise of the powers under this Section in severalcases, the findings of fact of the first appellateCourt are found to have been disturbed. It has to bekept in mind that the right of appeal is neither anatural nor an inherent right attached to thelitigation. Being a substantive statutory right, ithas to be regulated in accordance with law in forceat the relevant time. The conditions mentioned inthe section must be strictly fulfilled before asecond appeal can be maintained and no court has thepower to add or to enlarge those grounds. The secondappeal cannot be decided on merely equitable grounds.The concurrent findings of facts will not bedisturbed by the High Court in exercise of the powersunder this Section. Further, a substantial questionof law has to be distinguished from a substantialquestion of fact. This Court in Sir Chunilal v.Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR1962 SC 1314) held that:"The proper test for determining whether aquestion of law raised in the case is substantialwould, in our opinion, be whether it is of generalpublic importance or whether it directly andsubstantially affects the rights of the parties andif so whether it is either an open question in thesense that it is not finally settled by this Court orby the Privy Council or by the Federal Court or isnot free from difficulty or calls for discussion ofalternative views. If the question is settled by thehighest court or the general principles to be appliedin determining the question are well settled andthere is a mere question of applying those principlesor that the plea raised is palpably absurd thequestion would not be a substantial question of law."12. A bare perusal of it would indicate and demonstratethat unless there is a substantial question of law, thequestion of entertaining the second appeal would not arise.Accordingly, the second appeal stands dismissed. No costs.Consequently, connected miscellaneous petition is dismissed.MskSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The District Judge, Perambulur2.The District Munsif, Perambulur•1 cc to Mr. R. Vasudevan, Advocate SR No.12571 S.A.No.431 of 2007RSM(CO)SR/18.4.2009