D.Sundaram v. Kancheepuram Municipality & Ors.
Case at a glance
Provisions considered
Key paragraphs
- Para 1313. The proposed substantial question of law Nos.4 and 5 aregeneral in nature, which are not at all dignified to be equated tothe level of substantial question of law as suggested by the Hon'bleApex Court in the following judgments: (i) (2006) 5 Supreme Court Cases…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.537 of 2007andM.P.No.1 of 2007D.Sundaram.. Appellant/Plaintiffvs.
Kancheepuram Municipality rep. by its Commissioner Kancheepuram Municipality Office, Kancheepuram.
D.Mani3. S.Dharanipathy4. S.Kumar5. S.Shanmugam6. S.Arunachalam7. S.Thiruvengadam8. Srinivasan9. Ambal K.Raman10.K.Shanthi11.Uma Maheswari.. Respondents/Defendants 1 & 2 & Legal heirs of D-4This second appeal is filed against the judgment and decree dated23.06.2005 in A.S.No.109 of 1998 on the file of Hon'ble AdditionalDistrict Judge Fast Track Court No.II at Kancheepuram, confirming thejudgment and decree dated 24.09.1998 in O.S.No.679 of 1995, on thefile of the Hon'ble Principal District Munsif at Kancheepuram. For Appellant : No appearanceFor R1 : Mr.J.Jeyendra Krishnan for Mr.J.Raja Kalifulla https://hcservices.ecourts.gov.in/hcservices/ J U D G E M E N TThis second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 23.06.2005 passedin A.S.No.109 of 1998 by the Additional District Judge, Fast TrackCourt No.II at Kancheepuram, confirming the judgment and decree ofthe trial Court, namely, the Principal District Munsif at Kancheepuram in O.S.No.679 of 1995. For convenience sake, theparties are referred to hereunder according to their litigativestatus before the trial Court.2. Heard the learned counsel for the first respondent.
The appellant/plaintiff filed the suit O.S.No.679 of 1995seeking the following reliefs: "(i) To declare the plaintiff’s right of access to thesuit 'A' schedule premises through the suit 'B' scheduleroad margin poromboke land from the road in Survey No.1760and vice-versa and as consequence grant permanentinjunction restraining the 1st defendant and his men andagent from in any way interfering with the plaintiff’sright to access to the 'A' schedule property through the'B' schedule property to reach the said road in SurveyNo.1760.(ii) To grant permanent injunction restraining thedefendants 1 and 2 in any way disconnecting the plaintiffsservice connection No.94 situated in the suit 'A' schedulementioned property. ..."The defendants entered appearance and filed written statementresisting the suit.
The trial Court framed relevant issues. During trial, theplaintiff examined himself as P.W.1; the third defendant, D.Mani wasexamined as P.W.2 and Exs.A1 to A14 were marked. On the side of thedefendants, one Purushothaman was examined himself as D.W.1 and Ex.D1was marked.
Ultimately, the trial Court dismissed the suit, as againstwhich the plaintiff filed the appeal, for nothing but to be dismissedby the First Appellate Court, confirming the judgment and decree ofthe trial Court.
Animadverting upon such dismissal of the claim of theplaintiff by both the Courts below, this Second Appeal has beenfocussed on various grounds and also suggesting the followingproposed substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ "1. Whether the rejection of relief and declaration ofinjunction prayed by the plaintiff on the passage leading tothe Municipal bus stand to have access to his propertysustainable in law?2. When the relief of the plaintiff in the suit iscovered under Sec.28 of Easement Acts, whether the Courtsbelow were right in dismissing the suit without granting thesame?3. Whether the Courts below were right in rejecting therelief of declaration and injunction regarding the right ofaccess to the property of the plaintiff, on the grounds thatthe plaintiff cannot seek any relief on other man's land iscorrect?4. Whether the Courts below were right in dismissingthe suit of the Appellant for a declaration and permanentinjunction, without examining the issue as one of easementof necessity?5. Whether the Courts below were right in dismissingthe suit for relief relating to the access to his property, when the plaintiff had no other access to the property whichfact remain confirmed from the report of the AdvocateCommissioner?"
Despite printing the name, the appellant has not appeared.
A bare perusal of and poring over the relevant typed set ofpapers including the copies of the judgments of both the Courts belowwould display and demonstrate that the plaintiff filed the suit onthe main ground that from D3 and D4 he got the 'A' scheduled propertyfor lease, so as to run his business; While so, he allegedly wasusing the 'B' schedule property as a passage for having ingress andegress to the 'A' schedule property. Whereas, the Municipality/D1filed the written statement contending that the 'B' schedule propertyis part of the bus stand area and the plaintiff can have no right ofpassage for having ingress and egress to the 'A' schedule property.
Both the Courts below adverting to the evidence on record gavea factual finding to the effect that absolutely there is no shred orshard, iota or molecular, pint-sized or scintilla of evidence toevince and evidence that 'B' schedule property was a passage asclaimed by the plaintiff. In fact, both the Courts below in theirjudgments, referred to the very admission made by the plaintiffhimself that he was having no record to establish that 'B' scheduleproperty was a passage. The First Appellate Court correctly andappositely observed that simply because there is a road margin, it https://hcservices.ecourts.gov.in/hcservices/ cannot be presumed that it could be used as a passage by any citizen, here in this case, the plaintiff. The relevant portion of thedeposition of P.W.1 is found extracted in the judgment of the FirstAppellate Court and that would demonstrate that adjacent to the 'A'schedule property, the Municipality's property commences; thelandlord of the plaintiff in the lease deed never stated that 'B'schedule property could be used as pathway and there is no referenceto it also. If at all as claimed by the plaintiff, for the 'A'schedule property, if 'B' schedule property served as a passage, thenthere should have been some reference in the revenue records, butthere is no such indication.
Even though D3 in support of the plaintiff at one point oftime might say the 'B' schedule property was only a passage for the'A' schedule property, quite antithetical to such stand, P.W.1himself admitted that there is one other way available for havingingress and engress to the 'A' schedule property and as such, takinginto consideration all the relevant facts, both the Courts below gavea factual finding that 'B' schedule is not a passage. Accordinglythey rendered their judgments.
The proposed substantial question of law Nos.1 and 2 arevague. In view of the findings of both the Courts below, suchproposed question of law Nos.1 and 2 does not arise.
The proposed substantial question of law No.3 is on theassumption as though both the Courts below rendered their judgmentson the ground that the plaintiff cannot seek other man's land. Boththe Courts below have not rendered their judgment on such fictitiousproposition of law, but on the other hand, after analysing theevidence on record, gave a clear verdict to the effect that 'B'schedule property was never permitted to be used as a passage and itis part of the bus stand concerned. Hence, the proposed substantialquestion of law No.3 does not arise.
The proposed substantial question of law Nos.4 and 5 aregeneral in nature, which are not at all dignified to be equated tothe level of substantial question of law as suggested by the Hon'bleApex Court in the following judgments: (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 formulate https://hcservices.ecourts.gov.in/hcservices/ the 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 the Constitution. 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 the Constitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court in Rimmalapudi 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 the Court 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, for https://hcservices.ecourts.gov.in/hcservices/ determining 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 https://hcservices.ecourts.gov.in/hcservices/ "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 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. " https://hcservices.ecourts.gov.in/hcservices/ As such, I could see no merit in this Second Appeal, accordingly, thesame is dismissed.
No costs. Consequently, connected miscellaneouspetition is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrargmsTo1. The Additional District Judge Fast Track Court No.II at Kancheepuram.2. The Principal District Munsif at Kancheepuram. 3. The Section Officer, V.R.Section, High Court, Madras.1 CC To Mr.J.Rajakalifulla, Advocate, SR NO.9598S.A.No.537 of 2007vsv(co)pmk/20.5.2009.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — s. 100.
Which court decided this case, and when?
Madras High Court, on 24 Mar 2009. The bench was G RAJASURIA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.