Thiyagi N.Krishnan(died)Palaniammal(Died)Pechiammal v. The Tahsildar(South), Taluk Office(South), Coimbatore-18

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.191 of 2009andM.P.No.1 of 2009Thiyagi N.Krishnan(died)Palaniammal(Died)Pechiammal... Appellant/Appellant/3rd Partyvs.1.The Tahsildar(South), Taluk Office(South), Coimbatore-18.2.The Revenue Divisional Officer, Coimbatore-18.3.The District Collector, Coimbatore-18.4.The Commissioner, Coimbatore Municipal Corporation, Coimbatore.....Respondents/Respondent/ defendants This second appeal is filed against the judgement and decreedated 9.7.2007 passed in A.S.No.188 of 2003 by the Principal DistrictJudge, Coimbatore, confirming the judgement and decree dated 5.3.2003passed by the Principal District Munsif, Coimbatore, in O.S.No.2729of 1990.For Appellant : No appearanceFor Respondents : No appearanceJUDGMENTAnimadverting upon the judgement and decree 9.7.2007 passed inA.S.No.188 of 2003 by the Principal District Judge, Coimbatore,confirming the judgement and decree dated 5.3.2003 passed by thePrincipal District Munsif, Coimbatore, in O.S.No.2729 of 1990, which https://hcservices.ecourts.gov.in/hcservices/ was filed for permanent injunction, this second appeal is focussed onvarious grounds.2. Originally the second appellant Pechiammal's father ThiyagiN.Krishnan filed the suit O.S.No.2729 of 1990 seeking the relief ofpermanent injunction as against the defendants/respondents 1 to 4,so as to restrain them from interfering with his peaceful possessionand enjoyment of the suit property. The defendants entered appearanceand filed the written statement resisting the suit. 3. For the sake of convenience, the parties are referred tohereunder according to their litigative status before the trial Court.4. The trial Court framed the relevant issues. During trial,the plaintiff examined himself as P.W.1 and Exs.A1 to A22 weremarked. One V.Kannan was examined as D.W.1 on the defendants' sideand Exs.B1 to B.10 were marked. 5. Ultimately, the trial Court dismissed the suit, as againstwhich, the appeal A.S.No.188 of 2003 was filed by the plaintiff. Itappears the said Krishnan died on 17.8.2004. Whereupon his wife-Palaniammal and daughter-Pechiammal were added as his legal heirs.Finally, the appellate Court, after entertaining additional evidence,confirmed the judgement and decree of the trial Court and dismissedthe appeal.6. Being disconcerted and aggrieved by the said judgements anddecrees of both the Courts below, this second appeal is focussed onvarious grounds and also raising the following alleged substantialquestions of law:"a) Whether the lower Appellate Court erred indismissing the appeal without considering Ex.A6 to A9 whichare relevant documentary evidence to show that the appellantis in peaceful possession and enjoyment of the suit propertyfor over 40 years?b) Whether the lower appellate Court right in holdingthat the respondents complied with the direction as perEx.A23, when Ex.B15 shows that the decision in Ex.A.23 hasbeen not complied with?c) Whether the lower appellate Court misconstruedEx.B15 by holding that the respondents complied with thedirection as per Ex.A23?"7. Despite printing the name of the appellant, there is noappearance. https://hcservices.ecourts.gov.in/hcservices/

8. A plain poring over and perusal of the typed set of papers,including the judgements and decrees of both the Courts below, woulddemonstrate and display, evince and expatiate that the deceasedplaintiff-Krishnan occupied an extent of 5 cents of land on the Roadside, without any authorisation. When the public officials attemptedto remove such encroachment for widening the road, he started givingresistance in multifarious ways. It is also the findings of both theCourts below that the other encroachers were removed, but theplaintiff was resisting. 9. The perusal of the judgement dated 1.9.2003, rendered by thisCourt in W.A.No.2287 of 2003 would reveal that the authoritiesconcerned were directed to consider the grant of house patta relatingto the suit property of five cents, if at all the plaintiff wouldfile an application within a week from the date of the order of theCourt and till such finalisation of the petition, he shall not bedispossessed. As such, it is crystal clear that this Court did notdirect or order that a patta should be conferred on Krishnan inrespect of the suit property. However, in the proposed grounds ofsecond appeal, the appellant would put forth a distorted picture ofthe order of this Court earlier as though this Court had directed theHighways Department to issue patta. 10. The ground No.3 in the memorandum of grounds of secondappeal is extracted hereunder for ready reference. "3. The lower appellate Court ought to have allowedthe appeal as this Honourable Court has directed therespondents herein not to disturb the appellant's peacefulpossession and enjoyment of the house property until therespondents and high Ways Department issue patta toappellant's house property to an extent of 5 cents atUppilipalayam Village in Survey No.246."The aforesaid ground of appeal pre-supposes wrongly as though thisCourt earlier directed the Highways Department to issue patta infavour of the plaintiff and till then there should not be anyeviction. 11. The first appellate Court clearly and categorically heldthat after the passing of the order by this Court, as revealed byEx.A.23-the Collector issued G.O.173, as revealed by Ex.B-14,conferring patta to an extent of five cents of land in a differentarea, because the suit property is on the road margin and it isrequired for expansion of the road. Howevr, Krishnan's wife-thesecond plaintiff-Pechiammal refused to receive the patta. The lowerCourt correctly analysed the evidence put forth by the publicofficials that no patta could be conferred concerning the suitproperty, as that would be detrimental for road expansion. https://hcservices.ecourts.gov.in/hcservices/

12. At this juncture my mind is reminiscent and redolent of thefollowing maxim:"Privatorum conventio juri publico non derogat"which means 'If the thing stipulated for is in itself contrary tolaw, the paction by which the execution of the illegal act isstipulated must be held as intrinsically null."13. However, in this case, the position is much the worse asKrishnan had no private right at all to occupy the suit property andhe was an encroacher. Both the Courts below, by analysing thedocuments produced on either side arrived at the conclusion that atno point of time Krishnan was authorised to occupy the road margin.In fact, the attitude of the public officials by way of respectingthis Court's order, by allotting one other site measuring 5 cents infavour of Krishnan, who happened to be a freedom fighter, isappreciable. But, the deceased Krishnan's wife and daughter did notrealise the same and they are unable to see the wood for the tree.As such, their insistence to squat in the encroached portion isantithetical to the existing Laws as well as the welfare of thepublic. 14. It appears, the officials initiated action under the LandEncroachment Act and in order to stall the proceedings, Krishnan andhis descendants are indulging in this sort of litigation and thatshould not be encouraged. 15. In view of my discussion supra, the proposed substantialquestions of law (a) as though the lower appellate Court has notconsidered Ex.A6 to Ex.A9 is totally untenable and the appellantcannot try to squat on the property simply on the alleged ground thatKrihnan and his descendants have been in possession and enjoyment ofthe suit property for over forty years.16. Substantial questions of law (b) and (c): These questionsof law does not arise because by misinterpreting the earlier order ofthis Court, those grounds of appeal emerged.17. At this juncture, my mind is reminiscent and redolent of thefollowing decisions of the Honourable Apex Court:(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 a https://hcservices.ecourts.gov.in/hcservices/ question. 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,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." https://hcservices.ecourts.gov.in/hcservices/ 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.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 also https://hcservices.ecourts.gov.in/hcservices/ refers 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 our opinion,be whether it is of general public importance or whether itdirectly and substantially affects the rights of the partiesand if so whether it is either an open question in the sensethat it is not finally settled by this Court or by the PrivyCouncil or by the Federal Court or is not free fromdifficulty or calls for discussion of alternative views. Ifthe question is settled by the highest court or the generalprinciples to be applied in determining the question arewell settled and there is a mere question of applying thoseprinciples or that the plea raised is palpably absurd thequestion would not be a substantial question 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. https://hcservices.ecourts.gov.in/hcservices/ 18 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 Principal District Judge, Coimbatore.2. The Principal District Munsif, Coimbatore.3. The Record Keeper, V.R.Section, High Court, Madras.1 cc To Mr.A.Booblie, Advocate, SR.8994.S.A.No.191 of 2009SSN(CO)RVL 22.04.2009