Chinnammal & Ors. v. Amritham

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:18.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.173 of 20091. Chinnammal2. Janaki.. Appellants/Plaintiffsvs.Amritham.. Respondent/DefendantThis second appeal is filed against the judgment and decree dated01.04.2008 passed by the Subordinate Judge at Mannargudi in A.S.No.23of 2007 which preferred by the appellant herein against the decreeand judgment dated 28.08.2007 in O.S.No.233 of 2004 on the file ofDistrict Munsif Court, Mannargudi.For Appellants : No appearanceFor Respondent: No appearance- - -J U D G M E N TThis second appeal is focussed by the original plaintiffs,animadverting upon the judgement and decree dated 01.04.2008 passedin A.S.No.23 of 2007 by the Subordinate Judge, Mannargudi, confirmingthe judgment of the trial Court, namely, District Munsif Court,Mannargudi, in O.S.No.233 of 2004. For convenience sake, the partiesare referred to hereunder according to their litigative status beforethe trial Court.2. Pithily and precisely, tersely and briefly, avoidingdiscursive delineation of facts in view of the case of both sideshaving been set out in detail in the judgments of both the Courtsbelow, I would like to set out the germane facts thus:The second appellants/plaintiffs herein filed the suit seekingthe relief of permanent injunction so as to retrain the defendantfrom any manner interfering with the peaceful possession andenjoyment of the suit property comprised of six survey numbers. Thedefendant resisted the suit by taking various pleas. https://hcservices.ecourts.gov.in/hcservices/

3. During trial, on the side of the plaintiffs, Veerachamy wasexamined as P.W.1 and Exs.A1 to A4 were marked. The defendantexamined himself as D.W.1 on his side and Exs.D1 to D3 were marked.4. Ultimately, the trial Court dismissed the suit, as againstwhich the first appeal was filed, for nothing but to be dismissed bythe First Appellate Court, confirming the judgment and decree of thetrial Court. Being disconcerted and aggrieved by the judgments anddecrees of both the Courts below, this Second Appeal has been filedon various grounds as set out in the memorandum of appeal and alsosuggesting the following proposed substantial questions of law:"1. Whether the trial Court was right in refusing togrant the relief of injunction in respect of suitproperties in the admitted circumstances that title andpossession of suit property established by the plaintiffboth by documentary and oral evidence?2. Whether it is proper to reject the plea of theplaintiff on the ground that schedule of the property foreach and every item of property not properly given?3. Whether the decree and judgment dismissing the suitby the trial Court as well as the order of confirmation bythe first appellate court is proper without any proof ordocumentary evidence to show that there is a irrigationcanal in existence hat too in and through the property ofthe plaintiff?4. Whether the dismissal of the First appeal and thesuit merely based on the ground there was canal inS.No.86/2 and the same being not specified in the plaint issufficient?5. Whether the dismissal of the suit and the firstappeal without making any observation and conclusion withregard to that the alleged canal is running adjoining theproperties of he plaintiff and in case of granting theinjunction as prayed for will affect the respondent and hiscultivation?"5. Despite printing the names concerned, none appeared.6. A bare perusal of and poring over the relevant records includingthe typed set of papers and the certified copies of judgments of boththe Courts below would display and demonstrate that the plaintiffsare guilty of suppression of materials facts in the sense that theyhave not chosen to highlight the fact that the channel in S.No.86/2 https://hcservices.ecourts.gov.in/hcservices/ is running in between the plaintiffs' property bearing S.No.86/3A3(now 86/3A2) and 86/3A1. In the schedule of property appended to theplaint, the following six survey numbersrh;nt ek;gh; 86/3V3 (jw;nghJ 86/3V2) 0.49 (0.20.0) 86/3V1 0.12 (0.05.0) 86/4V0.44(0.18.0) 86/VV0.25(0.10.0) 87/2V1.16(0.47.0) 97/2gp0.32(0.13.0) have been found set out as the suit property belonging to theplaintiffs and for all the said six survey numbers, one set ofboundaries are given as under:To the south and east of Mariappa Lingathar property;To the west of cart track and C.M.P. canal; and To the north of land belonging to Rangasamy Thondan.As such, the schedule of property conveys the idea as though theaforesaid six survey numbers are lying within the said boundariesreferred to. 7. Whereas, the trial Court after correctly analysing therelevant facts held that in between the said two S.Nos.86/3A3 (now86/3A2) and 86/3A1,the channel S.No.86/2 is running which does notexclusively belong to the plaintiffs and in fact, the real intentionof the plaintiffs is to prevent the defendant from enjoying the saidchannel. P.W.1 in his deposition artificially deposed and expatiatedas though the defendant was attempting to take a canal across theplaintiffs' suit property. In fact, the said channel in S.No.86/2has been in existence long prior to the filing of the suit onwards.Both the Courts below in order to arrive at the conclusion, relied onthe public document. P.W.3, Tahsildar produced the sketch andhighlighted and spotlighted before the trial Court that the channelS.No.86/2 is running in between the plaintiffs' property, namelyS.No.86/3A3 (now 86/3A2) and 86/3A1 and that happens to be theporomboke channel. Ex.X1 dated 08.09.2004, the proceedings of theTahsildar would reveal that the said poromboke channel in S.No.86/2was ordered to be restored and the trial Court correctly based on theevidence held that the plaintiffs at one point of time demolishedsuch channel. As such, both the Courts below found out the ulteriorand illegal motive of the plaintiffs in filing such a suitsuppressing the material facts as against the defendant.8. The proposed substantial question of law Nos.1,2,4 and 5 aredistorted ones for the reason that the plaintiffs attempted to obtain https://hcservices.ecourts.gov.in/hcservices/ injunction in respect of the poromboke channel bearing S.No.86/2which is running across the land situated within the four boundariesset out in the plaint and such an approach on the part of theplaintiffs is highly untenable and condemnable legally.9. The proposed substantial question of law No.3 is amisconceived one for the reason that both the Courts below placingreliance on the evidence of Tahsildar as well as the public recordsproduced, arrived at the conclusion that there is a poromboke channelin S.No.86/2.10. In view of the ratiocination adhered to in rejecting thesubstantial question of law, the question of finding fault with thejudgment of the First Appellate Court does not arise.11. At this juncture, my mind is redolent and reminiscent of thefollowing decision of the Hon'ble Apex Court reported in (2006) 5Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certainexcerpts from it would run thus:-(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 general https://hcservices.ecourts.gov.in/hcservices/ importance" 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)"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 a https://hcservices.ecourts.gov.in/hcservices/ binding 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 alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) One other decision of the Hon'ble Apex Court could also becited as under: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 same at 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, the https://hcservices.ecourts.gov.in/hcservices/ findings 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 crystal clear that without any substantialquestion of law, second appeal cannot be entertained. Here mydiscussion supra would evince that absolutely there is no question oflaw, much less substantial question of law, involved in this matter.Accordingly, the Second Appeal is dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gms https://hcservices.ecourts.gov.in/hcservices/ To1. Subordinate Judge at Mannargudi2. District Munsif Court, Mannargudi.S.A.No.173 of 2009MBS {CO}TP/6.4.2009.