Pavayee @ Pavayeeammal v. Kandaswamy (deceased)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:26.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.185 of 2009andM.P.No.1 of 20081.Pavayee @ Pavayeeammal2.Palanisamy...Appellants/Plaintiffsvs.Kandaswamy(deceased)1.Thangammal2.Chandral3.Maheswari... Respondents/DefendantThis second appeal is filed against the judgement and decreedated 10.8.2005 passed in A.S.No.50 of 2004 by the I Additional SubCourt, Erode, confirming the judgement and decree dated 30.6.2004passed by the II Addl. District Munsif, Erode, in O.S.No.203 of 2003.For Appellants : Mr.T.MurugamanikkamFor Respondents : No appearanceJUDGMENTThis second appeal is focussed by the plaintiffs, animadvertingupon the judgement and decree dated 10.8.2005 passed in A.S.No.50 of2004 by the I Additional Sub Court, Erode, confirming the judgementand decree dated 30.6.2004 passed by the I Addl. District Munsif,Erode, in O.S.No.203 of 2003, which was filed for permanentinjunction, so as to restrain the original defendant from in any wayinterfering with the plaintiffs' peaceful possession and enjoyment ofthe suit property. The original defendant entered appearance andresisted the suit. 2. The trial Court framed the relevant issues. During enquirythe second plaintiff examined himself as P.W.1 and Ex.A1 to A8 weremarked. The original defendant examined himself as D.W.1 along withone Palanisamy as D.W.2 and Krishnan as D.W.3 and Exs.B1 and B2 weremarked.3. Ultimately the trial Court dismissed the suit. As against https://hcservices.ecourts.gov.in/hcservices/ which, first appeal A.S.No.50 of 2004 was filed by the plaintiffs. Itappears the original defendant died and his L.Rs have been impleaded.The appellate Court confirmed the judgement and decree of the trialCourt and dismissed the appeal. Being disconcerted and aggrieved bythe said judgements and decrees of both the Courts below, this secondappeal is focussed by the plaintiffs on various grounds, includingthe following substantial questions of law:"A. Whether a suit for bare injunction to protectpossession is not maintainable against a co-owner inrespect of a house property?B. Whether the judgements of the Courts below arevitiated in that they have failed to render a finding in asuit for permanent injunction filed to protect possession?C. Whether property tax receipts cannot be accepted asproof of possession in respect of a house property?"4. For convenience sake, the parties are referred to hereunderaccording to their litigative status before the trial Court.5. Heard the learned counsel for the plaintiffs.6. From a bare poring over and perusal of the relevant recordsand also from the argument of the learned counsel for the plaintiffs,what I could understand is that the suit property indubitably andindisputably belonged to Karuppayee, who died issueless. Her husbandpre-deceased her. Whereupon Karuppayee's property devolved upon herhusband's heirs, namely, Ramaswamy and Kandaswamy. Ramaswamy diedleaving behind the plaintiffs. As such, both the Courts belowcorrectly held that the plaintiffs', representing the deceasedRamaswamy and D1-Kandaswamy, who subsequently died, happen to be theco-owners of the suit property and in such a case, the plaintiffscannot seek injunction as against the defendants. 7. The learned counsel for the plaintiffs would advance hisargument to the effect that this is not a vacant land or anagricultural land, but house property and hence, till the filing ofthe partition suit, the possession of the plaintiffs should beprotected, as otherwise it will lead to multifarious troubles anddifficulties.8. It is a trite proposition of law that one cannot obtaininjunction as against a co-ownes and that proposition is very muchapplicable in the facts and circumstances of this case. In fact, I amof the considered opinion that this O.S. should have taken the placeof I.A. in a comprehensive partition suit, which should have beenfiled by the plaintiffs and such a partition suit is the appropriateremedy. But they have chosen to simply file an injunction suit.Hence, I could see no question of law much less substantial question https://hcservices.ecourts.gov.in/hcservices/ of law involved in this case.9. At this juncture, my mind is redolent and reminiscent 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 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, https://hcservices.ecourts.gov.in/hcservices/ 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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 not https://hcservices.ecourts.gov.in/hcservices/ free 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."A plain reading of the above judgements would leave no doubt thatunless there is substantial question of law involved in a matter, nosecond appeal would lie.10. My discussion supra would connote and denote that hereabsolutely there is no merit in the second appeal and accordingly,the same is dismissed. No costs. Consequently, connectedmiscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The I Additional Sub Court, Erode.2.The II Addl. District Munsif, Erode.+1cc to M/s.T.Murugamanikkam, Advocate Sr 10027SAI(CO)km/21.4.S.A.No.185 of 2009