R.Komarasamy v. Ponnammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.333 of 2009and M.P.No.1 of 2007R.Komarasamy.... Appellant/Appellant/Defendantvs.1.Ponnammal2.Chenniammal3.Karuppayal @ Kannammal4.Dhanalakshmi @ Dhanam5.Kamalaveni @ Kamalam.... Respondents/RespondentsPlaintiffThis second appeal is filed against the judgement and decreedated 16.9.2008 passed by the learned Principal Sub court,Gobihettipalayam, in A.S.No.22 of 2008, confirming the judgementand decree dated 20.12.2007 passed by the learned District Munsif,Court, Sathiyamangalam, in O.S.No.231 of 2005.For Appellant : Mr.N.ManokaranFor Respondents : No appearance JUDGMENTThis second appeal has been filed by the defendant,animadverting upon the judgement and decree dated 16.9.2008 passedby the learned Sub Court, Gobichettipalayam, in A.S.No.22 of 2008,confirming the judgement and decree dated 20.12.2007 passed by thelearned District Munsif, Sathiyamangalam in O.S.No.231 of 2005. Forconvenience sake, the parties are referred to here under according totheir litigative status before the trial Court.2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of this secondappeal, would run thus:(a) The Respondents/plaintiffs filed the suit O.S.No.231 of 2005as against the defendant, seeking partition of the suit properties,as against which, the defendant filed the written statement andresisted the suit. https://hcservices.ecourts.gov.in/hcservices/ (b) During enquiry, the trial Court framed the relevant issues.The 3rd plaintiff examined herself as P.W.1 along with one Ramaswamyas P.W.2 and Exs.A1 to A.3 were marked. The defendant examinedhimself as D.W.1 along with one Arumugham as as D.W.2 and Exs.B1 toB15 were marked. One Ponnammal was examined as Court witness.(c) Ultimately the trial Court decreed the suit, as againstwhich, the defendant filed the A.S.No.22 of 2008, for nothing but tobe dismissed by the first appellate Court, confirming the judgementand decree of the trial Court.(d) Being disconcerted and aggrieved by the said judgement inA.S.No.22 of 2008, this second appeal has been focussed on variousgrounds suggesting the following substantial questions of law, whichare extracted here under:a) Whether the Courts below erred in law andmisdirected themselves in holding that the present suit inO.S.No.231 of 2005 is not hit by the principleh of res-judicata even though the very same trial Court inO.S.No.232 of 2002 held that the item 1 of the present suitproperty is not the self acquired property ofRakkiyagounder and that it was only a joint family propertyof the defendant and his father?b) Whether the Courts below are correct in law ingranting decree for 5/6th share each to the plaintiffs initem 1 of the suit property particularly when thesuccession opened as early as on the date of the death ofThiru Rakkiyagounder on 3.11.1981, at that time, thedefendant and his father were the co-parceners, wherebyeach entitled to ½ share, therefore the plaintiffs couldclaim only 1/12th share each?c) Whether the Courts below are correct in law inholding that the suit 1st item is the self acquired propertyof Rakkiyagounder, admittedly when he had no surplus incometo purchase the suit item 1 in his name under Ex.B2 andEx.B3?d) Whether the Courts below have committed an error inrejecting the plea of adverse possession especially whenthe defendant has produced ample evidence to prove hisactual, exclusive possession and enjoyment of the propertyby way of ouster against the plaintiffs?(extract as found in the memorandum of second appeal) https://hcservices.ecourts.gov.in/hcservices/

3. Heard the learned counsel appearing for thedefendant/appellant.4. A poring over and perusal of the typed set of papers,including the certified copies of the judgements and decrees of boththe Courts below, would exemplify and display that therespondents/plaintiffs filed the suit for partition on the mainground that out of two items of the properties, the first item of thesuit property was purchased by Rakkiyagounder from out of his ownself ascertain, as per Ex.B2-the Sale Deed dated 2.6.1965 and Ex.B3-the Sale deed dated 24.1.1972 and that the second item of the suitproperty was acquired by the joint earnings of the joint familymembers; and Rakkiyagounder died leaving behind his wife Ponnammal(the first plaintiff) and his four daughters, namely, P2 to P5 andthe defendant. Accordingly, the plaintiffs prayed for dividing bothitems of the suit properties into six equal shares and allotment offive shares in favour of the plaintiffs.5. Remonstrating and refuting, challenging and impugning theaverments/allegations in the plaint, the defendant filed the writtenstatement contenting that the first item of the suit properties waspurchased by Rakkiyagounder from out of the income derived from jointfamily nucleus; the second item of the suit property was acquiredexclusively by the defendant from out of his own earnings andaccordingly, he prayed for the dismissal of the suit.6. However, both the Courts below rendered the finding to theeffect that the second item of the suit property happened to be theexclusive property of the defendant, as against which, the plaintiffshave not filed any appeal.7. Both the Courts below held also that the first item of thesuit property cannot be treated as ancestral property, but it was theself-acquired property of the deceased Rakkiyagounder and hence, itis liable to be divided into six equal shares among the plaintiffsand the defendant.8. The learned counsel for the defendant would advance hisargument to the effect that both the Courts below failed to take intoconsideration the fact that admittedly the ancestral property wassold as per Ex.B1 dated 14.3.1963 by Rakkiyagounder and a sale priceof Rs.100/- emerged out of it and; he by his own shrewd efforts gotinterest over the said amount and purchased a part of the first itemfor a sum of Rs.200/-, as per Ex.B2 dated 2.6.1965 and the remainingportion of the first item of the property was purchased for a sum ofRs.100/- as per Ex.B3 dated 24.1.1972 and the defendant alsocontributed financially for such purchase.9. Both the Courts below, after due analysis of the evidence onrecord, arrived at the factual finding that absolutely there is https://hcservices.ecourts.gov.in/hcservices/ nothing to indicate and ememplify that the first item of the suitproperties, as per Ex.B2 and B3, were purchased from out of theincome derived from the joint family nucleus. Ex.B1-the sale deedfetched only a sum of Rs.100/- and that too on 14.3.1963. It ishighly improbable to visualise that the said sum of Rs.100/- wasinvested by him in some interest bearing investments andRakkiyagounder, within such a short time could have purchased forRs.200/- a part of the first item of the suit property as per Ex.B2.The pleas emerged out of fabulous and phantasmagorical thought cannotbe upheld by the Court simply without any concrete evidence. 10. It is a trite proposition of law that the first appellateCourt is the last Court of facts and accordingly both the Courtsbelow gave a categorical finding that there was no shard or shred,iota or miniscule extent of evidence to highlight that the plaintiffspurchased a part of the suit properties from out of the sale proceedsobtained under Ex.B1. The oral evidence of P.W.1-the wife ofRakkiyagounder was considered by the Courts below and held that thesaid sale proceeds could not have been utilised for purchasing a partof the first item of the suit property, as per Ex.B2.11. It is quite axiomatic that as per Ex.B3 the remaining partof the first item of the suit properties could not have beenpurchased from out of the joint family nucleus. There is alsonothing to infer that the defendant contributed anything for thepurchase of the part of the first item of the suit property as perEx.B3, during the year 1972. As such, in view of the categoricalfindings of both the Courts below, based on evidence, there is nopossibility of invoking Section 100 of the C.P.C. The preponderanceof probabilities will govern the adjudication in civil cases.12. It is a well settled proposition of law that there is nopresumption that the property purchased subsequent to the sale ofsome ancestral property should be deemed to be the joint familyproperties or ancestral properties. There should be clear evidenceto indicate and display that from out of the sale of such ancestralproperty sufficient income emerged in commensurate with the saleconsideration relating to the property purchased.13. The learned counsel for the defendant with reference to thejudgement in the previous suit O.S.No.232 of 2002 and the subsequentappeal A.S.No.54 of 2005 would develop his argument to the effectthat the earlier suit O.S.No.232 of 2002 was filed by the defendantherein for injunction in respect of the first item of the suitproperty and it was held as ancestral property. 14. The trial Court in paragraph 14, correctly held that in theprevious suit there was no finding that the first item of the suitproperty happened to be the ancestral property. Even for argumentsake it is taken that there was an incidental finding about the https://hcservices.ecourts.gov.in/hcservices/ nature of the property in the injunction suit, it would not operateas res judicata in the subsequent partition suit. There is also noindication that any specific issue was framed in the earlier suit asto the ancestral nature of the first item of the suit property andthat it was decided in favour of the defendant herein, who was theplaintiff therein. 15. Put simply the proposed substantial question of law (1) isbased on res judicata is a misconceived one in view of my discussionsupra.16. A fortiori, the proposed substantial questions of laws (b)and (c) are also untenable as those questions were suggested pre-supposing as though the first item of the suit property is theancestral property and as such, those substantial questions of lawsare not tenable.17. As far as the suggested substantial question of law (d) isconcerned it is relating to adverse possession. It is quite obviousthat adverse possession cannot be pleaded as against co-sharer unlessouster is pleaded and nothing has been highlighted as to what are allthe evidence adduced before the lower Court relating to ouster. Thetrial Court in paragraph 21 adverted to the said plea of adversepossession and held that there was no evidence much less reliableevidence to prove ouster. 18. It is a common or garden principle of law that to proveouster, the enjoyment of the defendant in respect of the first itemof the suit property should be hostile to the other co-sharers and heshould have exercised his right of ownership over it over thestatutory period, but the trial Court as well as the first appellateCourt held that absolutely there was no evidence. Nothing has beenhighlighted that both the Courts' analysis of evidence in this regardis perverse. The first appellate Court also referring to the recordsanalysed the evidence and agreeing with the trial Court correctlyarrived at the just conclusion, warranting no interference by thisCourt.18. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Hon'ble 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 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. . . . . . 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 have https://hcservices.ecourts.gov.in/hcservices/ wrongly 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.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYALA plain reading of those precedents would reveal and demonstratethat under Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved. Here as held supra, there is no substantial question oflaw is found exemplified. 19. Accordingly, second appeal is dismissed. However, thereshall be no order as to costs. Consequently, the connectedmiscellaneous petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar mskTo1.The Principal Sub court, Gobihettipalayam2.The District Munsif, Court, Sathiyamangalam.+ 1 cc to Mr.N.Manokaran,Advocate,SR.16467S.A.No.333 of 2009GG(CO)EM/11.6.09