Selvam v. Vajjiravely Mudaliar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.775 of 2008andM.P.1 of 20081.Selvam2.Mari3.Devaraj4.Sankar... Appellants/Defendants 5 to 8vs.1.Vajjiravely Mudaliar2.Palani3.Shanmugam4.Anandaraj5.Jaisankar6.Thiyagu.... Respondents/Plaintiff & Defendants 1 to 4 & 9This second appeal is filed against the judgement and decreedated 30.6.2006 passed by the learned Additional District Judge,Fast Track Court, No.III, Chengalpattu at Poonamallee, in A.S.No.46of 2004, confirming the judgement and decree dated 27.4.2004passed by the learned District Munsif, Court, Poonamallee, inO.S.No.78 of 1996.For Appellants : Mr.N.DamodaranFor Respondents : Mr.T.K.Karunakaran for R1 JUDGMENTThis second appeal has been filed by the the defendants 5 to 8,animadverting upon the judgement and decree dated 30.6.2006 passedby the learned Additional District Judge, Fast Track Court, No.III,Chengalpattu at Poonamallee, in A.S.No.46 of 2004, confirming thejudgement and decree dated 27.4.2004 passed by the learned DistrictMunsif, Court, Poonamallee, in O.S.No.78 of 1996. For conveniencesake, the parties are referred to here under according to theirlitigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/

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 first Respondent/plaintiff filed the suit O.S.No.78 of1996 as against as many as nine defendants, seeking bare injunctionon the ground that the defendants are trying to disturb hispossession in his cultivation. (b) The defendants entered appearance and resisted the suit byclaiming that they are in possession and enjoyment of the suitproperty, by raising huts therein.(c) During enquiry, the trial Court framed the relevant issues.The plaintiff examined herself as P.W.1 and Exs.A1 to A.15 weremarked. The first defendant examined himself as D.W.1 and the 6thdefendant examined himself as D.W.2 and Ex.B1 was marked. Exs.C1 andC2 were marked as Court document.(c) Ultimately, the trial Court rejected the plea of thedefendants and decreed the suit, recognising the plaintiff'spossession to the effect that the plaintiff has been cultivatingcrops therein, as against which, the first appeal A.S.No.46 of 2004was filed by the defendants 5 to 8 for nothing but to be dismissedby the first appellate Court.(d) Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, this second appeal has beenfocussed on various grounds suggesting the following substantialquestions of law, which are extracted here under:"a) Whether the suit filed by the first respondentseeking for permanent injunction without seeking for therelief of declaration of title is maintainable in law,when the appellants have specifically denied the title ofthe first respondent to the suit property by adducingEx.B1 document?b) Whether the courts below erred in law andmisdirected themselves in granting a decree for permanentinjunction when the first respondent has failed to provehis possession and enjoyment of the suit property on thedate of the suit by adducing necessary evidence exceptlist receipts?c) Whether the lower appellate Court as a final courtof facts, erred in law and misdirected itself in merelyconfirming the findings of the trial Court withoutrendering any findings on each issues involved in thefirst appeal and much to the prejudice of the appellantsherein? https://hcservices.ecourts.gov.in/hcservices/ d) Whether the Courts below are correct in granting adecree for permanent injunction in favour of the firstrespondent, when admittedly the appellants herein havebeen in possession and enjoyment of the suit property onthe date of the suit, even assuming and without admittingas trespassers, and as such they cannot be evicted exceptby due process of law?"(extract as found in the memorandum of second appeal)3. Heard the learned counsel appearing for the defendants 5 to8/appellants and the learned counsel appearing for theplaintiff/first respondent.4. The learned counsel for the defendants would develop herargument to the effect that 'Keertheeswaran temple' is the actualowner of the suit property by virtue of Ex.B1-the 'Will' dated30.9.1901 executed by Sandu Mudaliar and in such a case, theplaintiff is having no right to claim possession based on concocteddocuments. 5. Whereas, the learned counsel for the plaintiff would argue,by inviting the attention of this Court to paragraph No.17 of thejudgement of the lower Court, that Palani/D1(D.W.1) deposed to theeffect that ever since 1980 onwards only the plaintiff has been inpossession and enjoyment of the suit property and cultivating paddyand ground nut crops. As such, based on such supine admission onthe side of the defendants, the trial Court rendered its judgement.Over and above that under paragraph 14, the trial Court correctlycommented as under:-"14. . . . . The contentions of the plaintiff whilefiling the suit is that the defendants are trying toencroach on the suit property. Whether the newconstruction of huts, during the inspection of theAdvocate-Commissioner will lead to a actual possession ofthe suit property? The answer is 'No'. Because no onecould be expected to live in a hut in which there is nowall and in which there is a wall for 4 feet, without doorand window. There was not even a single finished hut inwhich one cannot expect the defendants could be living.In the absence of not even a single finished hut, thedefendants' story that they are in possession of the suitproperty by constructing huts, long prior to suit is anutter concocted story."As such, the trial Court commented upon the fact that simply becausethe Advocate Commissioner visited the suit property, who could see afew huts put up by the defendants, the Court cannot jump to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that the defendants have been in possession and enjoymentof the suit property.6. At this juncture I would recollect and call up the concepts'corpus possessionis and the animus possidendi'. An excerpt from thefamous treatise Salmond's Jurisprudence would run thus:". . . . . Salmond considered that possessionconsisted of a corpus possessionis and an animuspossidendi. The former, he thought, comprised both thepower to use the thing possessed and the existence ofgrounds for the expectation that the possessor's use willnot be interfered with. The latter consisted of an intentto appropriate to oneself the exclusive use of the thingpossessed.It is certainly true that in assessing whetherpossession has been acquired, lost or abandoned intentionmay be highly relevant. . . . . . The test then for determining whether a man is inpossession of anything is whether he is in general controlof it. Unless he is actually holding or using it – inwhich event he clearly has possession – we have to askwhether the facts are such that we can expect him to beable to enjoy the use of it without interference on thepart of others. There will always, of course, be border-line cases. Suppose I become paralysed: am A I still inpossession of the coat by my side? Such question need notdetain us, for the ordinary concept of possession is notdesigned to cope with such marginal cases, while theexistence of legal rules relating to legal possession willanswer such questions and obviate the need for anydecision in terms of possession in fact."As such it is clear that to prove possession there should berequisite animus. The trial Court clearly held that absolutely therewas no infinitesimal or miniscule extent of evidence to demonstratethat the defendants have been in effective possession of the suitproperty. Over and and above that there is a clear finding by thetrial Court that when the Commissioner visited the suit property, hehad seen that crops were found just harvested in the suit property.7. All these facts would clearly indicate and evidence that theplaintiff has been in possession and enjoyment of the suit property.In fact, the gist and kernal of the plea of the defendants is thatthey tried to invoke 'Jus tertii', which means 'no defendant in anaction of trespass can plead the jus tertii – the right ofpossession outstanding in some third person – as against the fact ofpossession in the plaintiff'. https://hcservices.ecourts.gov.in/hcservices/

8. According to the defendants, the temple is the real ownerand if that be so, they must be able to state as to whether they gotpermission or leasehold right from the temple to occupy the suitproperty. Absolutely there is no such plea. The list of documentsappended to the trial Court's judgement would reveal that on thedefendants' side one copy of the 'Will' dated 30.9.1901, purportedto have been executed by Sendur Mudaliar in favour of the'Keertheeswaran temple', was produced. If at all a person aggrievedbecause of the plaintiff's possession, it must be the templeauthorities. But there is no indication that any temple authoritymuch less the 'Keertheeswaran temple' instituted any proceedings asagainst the plaintiff. Hence, I could see no question of law muchless substantial question of law involved in this matter.9. 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 sucha question. If satisfied, the High Court has to formulatethe substantial question of law involved in thecase. . . . . . . ."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. . . . . ." (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGHAND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL https://hcservices.ecourts.gov.in/hcservices/ A 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. 10. Accordingly, the second appeal is dismissed. However,there shall be no order as to costs. Consequently, the connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmskTo1.The Additional District Judge, Fast Track Court, No.III, Chengalpattu at Poonamallee.2. The District Munsif, Court, Poonamallee3.The Section Officer,VR Section, High Court, Madras.+1cc to M/s. N.Domodaran, Advocate Sr 15984+1cc to M/s. T.Karunakaran, Advocate Sr 15966SR(CO)km/18.5. S.A.No.775 of 2008