Thangaraj (deceased) v. Balaraman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.08.2009C O R A MTHE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos.365 and 391 of 2003andC.M.P.Nos.307 and 815 of 20091. Thangaraj (deceased)2. Victor Anantraj ... Appellant in both S.As.(2nd Appellant is brought on record as L.R. Of the deceased sole appellantvide order of Court dt. 12.12.2006)Vs.Balaraman ... Respondent in both S.As.Second Appeals filed as against the judgments and decrees dated09.10.2002 in A.S.Nos.75 and 77 of 2001 on the file of the PrincipalSubordinate Judge, Chengalpattu, confirming the judgment and decreedated 30.04.1999 in O.S.Nos.401 and 402 of 1997 on the file of theDistrict Munsif cum Judicial Magistrate at Alandur.For Appellant : Dr.G.KrishnamurthyFor Respondent : Mr.T.L.Rammohan, Sr.Counsel for Mr.T.RavindranC O M M O N J U D G M E N TO.S.No.401 of 1997 was filed by one Balaraman as againstThangaraj, seeking permanent injunction in respect of an immovableproperty whereas the said Thangaraj filed the suit O.S.No.402 of1997 as against the said Balaraman seeking declaration and recoveryof possession in respect of a portion of the same suit property.Joint trial was conducted and the trial Court dismissed the suitO.S.No.402 of 1997 filed by Thangaraj and decreed the suit O.S.No.401of 1997 for injunction, in favour of Balaraman.2. Animadverting upon the common judgment and decrees passed bythe trial Court, the said Thangaraj preferred two appeals A.S.No.75of 2001 (O.S.No.401 of 1997) and A.S.No.77 of 2001 (O.S.No.402 of1997) for nothing but to be dismissed confirming the judgment anddecrees of the trial Court. Whereupon, these Second Appeals havebeen filed. https://hcservices.ecourts.gov.in/hcservices/

3. The epitome and long and short of the case of Balaraman inO.s.No.401 of 1997 could be set out thus:The property bearing plot No.44A in S.No.56/2 at 158, ZameenPallavaram was allotted to the plaintiff by virtue of the SpecialTahsildar's assignment during the year 1997. Even prior to it, theplaintiff was in possession and enjoyment of the same by putting up athatched structure. While so, the defendant, who is a neighbour tothe plaintiff on the northern side, was trying to barge in to thesuit property and put up construction thereon. Hence the suit.4. Refuting and remonstrating, gainsaying and challenging theaverments/allegations in the plaint, the defendant Thangaraj filedthe written statement that the suit property was assigned in favourof one P.Subramanian by the Government of Tamil Nadu and he had beenin possession and enjoyment of the same. While so, he inducted thedefendant as a tenant into the suit property. Whereupon, thedefendant has been in possession and enjoyment of the same. The saidSubramanian ultimately sold the suit property by virtue of aregistered sale deed dated 10th March 1977 in favour of the defendantwho had put a superstructure in the suit property. The allegationsto the contrary in the plaint are all false. Accordingly, he prayedfor the dismissal of the suit.5. The said Thangaraj, the defendant in O.S.No.401 of 1997 filedthe suit O.S.No.402 of 1997 setting out the facts which arevirtually found set out in the written statement filed by him inO.S.No.401 of 1997. Thangaraj also would further aver to the effectthat during the pendency of the earlier suit, the said Balaramantrespassed into the suit property and put up a hut in a portion of itwith the help of criminal elements and the said portion trespassed bythe said Balaraman is described as 'B' portion in schedule of theplaint in O.S.No.402 of 1997. Accordingly, the plaintiff prayed fordeclaration of the plaintiff's title to the 'B' scheduled propertyand for recovery of possession of the same, after removal of thesuperstructure thereon.6. Remonstrating and refuting the averments/allegations in theplaint in O.S.No.402 of 1997, the defendant Balaraman therein, filedthe written statement virtually incorporating therein his avermentsin the plaint in O.S.No.401 of 1997 and in addition to that he wouldalso aver that he (Balaraman) did not barge into the suit propertyand occupy a portion of it described as 'B' scheduled property in theplaint in O.S.No.402 of 1997. The claim of Thangaraj that hepurchased the property from Subramanian is nothing but an utterfalsehood and there is no registered sale deed in his favour. Thesaid Subramanian was not the owner of the suit property at any pointof time. Accordingly he prayed for the dismissal of the suitO.S.No.402 of 1997. https://hcservices.ecourts.gov.in/hcservices/

7. The trial Court framed the relevant issues and during jointtrial, Balaraman examined himself as P.W.1 along with P.W.2,K.Sivanandam and Exs.A1 to A17 were marked. Thangaraj examinedhimself as D.W.1 along with three others and Exs.B1 to B33 weremarked. Ultimately, the trial Court by a common judgment dismissedthe suit of Thangaraj in O.S.No.402 of 1997 and decreed the suit ofBalaraman in O.S.No.401 of 1997. The appeals in A.S.Nos.75 and 77 of2001 filed by Thangaraj were dismissed.8. Animadverting upon the judgments and decrees of both theCourts below, these two Second Appeals have been focussed on almostsame and similar grounds thus: The evidence of P.Ws.1 and 2 should not have been believed byboth the Courts below and the suit O.S.No.401 of 1997 should havebeen dismissed. Ex.B8, in the name of Subramanian was not consideredproperly by the Courts below. The appellate Court simply agreed withthe trial Court and dismissed the claim of Thangaraj, the secondappellant herein. Even though Ex.B1 to B33 were marked on the sideof Thangaraj, those documents were not discussed and considered bythe lower Courts, except for two documents. Accordingly, the secondappellant prayed for setting aside the judgments of the Courts belowand for decreeing the suit of Thangaraj O.S.No.402 of 1997 and fordismissal of the suit O.S.No.401 of 1997.9. My learned predecessor at the time of admitting both theappeals, formulated one and the same type of substantial questions oflaw as under:"1. Whether both the courts were correct indismissing the entire suit? and 2. Whether the plaintiff has established histitle, at least, to a part of the suit properly?"It is exfacie and prima facie clear that the substantial questions oflaw have to be reformulated and accordingly, the substantialquestions of law do emerge thus:"1. Whether the Courts below failed to take intoconsideration the evidentiary value of Ex.B6, dated10.03.1997, the letter executed by Subramanian, in favourof Thangaraj, as the one allegedly proving the collateralpurpose to wit the possession of Thangaraj in the partof the suit property?2. Whether the judgments of both the Courts belowwere erroneous, in the alleged absence of any evidence toprove possession of the plaintiff in respect of the suitproperty? https://hcservices.ecourts.gov.in/hcservices/

3. Whether both the Courts below failed to take intoconsideration Exs.B1 to B33 except for two documents andthereby were perverse in their findings relating to thedefendant's case?"10. For convenience sake, Thangaraj is referred to as theappellant and Balaraman is referred to as the respondent here under.11. The learned counsel for the appellant in the Second Appealswould set forth and put forth his argument detailing and delineatingthe facts and also reiterating the grounds of appeal that the firstappellate Court in its judgment simply translated into English theTamil judgment of the trial Court; Ex.B6 is having its probativeforce relating to proving the nature of the possession of a portionof the suit property; simply because the Court found that theappellant has not proved his title to the suit property, the suit wasdecreed in favour of the respondent, even though he has notindependently established his title or possession in respect of thesuit property.12. Whereas the learned counsel for the respondent herein, byway of torpedoing and pulverising the arguments as put forth on theside of the appellants, would advance and develop his arguments thaton imaginary grounds the appellant therein is trying to lay claimover 0.6 cents of land and that there is no shard or shred, molecularor iota, jot or scintilla extent of evidence in support of his claim.13. A bare poring over and perusal of the relevant records wouldexemplify that the very bedrock of the case of Balaraman is that asper Ex.A1-the form-XXIII issued by the Tahsildar concerned, the plotbearing No.44-A measuring an extent of 0.3 cents was conferred on him.14. Whereas, the contention of Thangaraj is that his predecessorin title, namely, Subramanian was similarly given with form-XXIII, asrevealed by Ex.B8, relating to Plot bearing No.45-A, measuring anextent of 0.3 cents. 15. At this juncture, it is worthwhile to extract hereunder therespective schedules appended to the plaints. In the plaint filed by Balaraman(O.S.No.401 of 1997), thefollowing schedule is found exemplified:"Plot bearing No.44-A comprised in S.No.56/2 situatedat 158, Jamin Pallavaram bounded on North by Hill sideland, South by Main Road, East by Ramalingam Plot No.(46),West by Durairaj Plot No.43." In the plaint filed by Thangaraj(O.S.No.402 of 1997), thefollowing schedule is found exemplified: https://hcservices.ecourts.gov.in/hcservices/ "Schedule-A"Land in S.No.56/2, bearing Plot No.45-A, ZaminPallavaram Village, Saidapet Taluq, Chingleput District,being bounded on the North by Hill bounded on the South byBattai, bounded on the West by the property of Dorairaj andbounded on the East by the property of Ramalingam, measuring6 cents."Schedule-BLand in S.No.56/2, bearing Plot No.45-A in ZamimPallavaram Village, Saidapet Taluq, Chingleput District,being bounded on the North, on the South, on the East by theproperty of the plaintiff and bounded on the West by theproperty of Durairaj, measuring North to South 10 feet andEast to West 10 feet and shown in Green in the plan annexedand marked as A B C D."16. A plain reading of the above would disclose and evince thatBalaraman claims only the Plot bearing No.44-A measuring an extent of0.3 cents and nothing more. However, Thangaraj even though claimsonly Plot bearing No.45-A measuring an extent of 0.3 cents, as perEx.B8, even so curiously, claimed the Plot No.45-A measuring anextent of 0.6 cents. 17. At this juncture, I would like to point out that it is notknown as to how Thangaraj, by relying on Ex.B8, simply in the suit,would claim that he is entitled to 0.6 cents. Pellucidly andpalpably, it is clear that Thangaraj, placing reliance on Ex.B6-thealleged sale letter dated 10.3.1977, purported to have been executedby Subramanian in his favour, claimed as though, he is entitled to0.6 cents of land. Even though, as many as 33 documents have beenrelied on Thangaraj's side, absolutely there is no shard or shred,iota or miniscule, jot or scintilla of evidence to demonstrate thatat any point of time the said Subramanian was owning 0.6 cents ofland or possessing the alleged 0.6 cents of land. 18. At this juncture, I recollect and call up the followingmaxims '(i) Nemo dat quod non habet', which means no one canconvey better than what he has.(ii) Vicarius non habet vicarium, which means adelegate cannot delegate.19. When there is no indication that Subramanian himself hadownership right over 0.6 cents of land, he could not have validlytransferred under Ex.B6, an extent of 0.6 cents of land. Over andabove that, the learned counsel for Balaraman would appropriately andappositely, convincingly and legally put forth and set forth his https://hcservices.ecourts.gov.in/hcservices/ argument to the effect that Ex.B6 cannot be treated as a sale deed atall, as it is an unregistered one and furthermore, it is not at allhaving the sanctity of a sale deed. 20. As per Section 17 of the Registration Act, it is palpablyand axiomatically clear that Ex.B6, by no stretch of imagination,could be termed as a sale deed. As per Section 49 of theRegistration Act, for collateral purpose the said document could berelied on. However, in this case, to prove even the nature ofpossession also, Ex.B6 cannot be relied on for the reason that thedescription of property in Ex.B6 is vague and it cannot be equatedwith the property as found described in Ex.B8. Thus, Ex.B6 and Ex.B8would in no way highlight that Subramanian was in possession andenjoyment of 0.6 cents of land.21. With reference to Ex.A1, if the property described in theschedule of the plaint filed by Balaraman (O.S.No.1921 of 1996)) isscrutinised, it is at once clear that Balaraman's plot No.44-A shouldbe to the North of Plot No.45-B and South of Plot No.44-B. But, abare perusal of the judgements of both the Courts below as well asthe oral evidence adduced on both sides would indicate as though hisplot is abetting the road on the Southern side, but Ex.A1 would notin any way evince that on the Southern side Road is situated, becauseon the Southern side, the Plot No.45-B alone is found specified asexisting, as per Ex.A1. Balaraman would claim that Thangaraj isoccupying some area to the North of his Plot as a neighbour. 22. Here, Ex.A1 would reveal and disclose that to the North ofBalaraman's Plot No.44-A, the Plot No.44-B is contemplated, and insuch a case, I am at a loss to understand as to how Thangaraj, whocould, at the most, be the plot owner of 45-A, by stepping into theshoes of Dr.Subramanian, could have occupied an area to the North ofBalaraman's property. 23. Durairaj is stated to be having the plot to the West of theproperty of Balaraman and for that matter even Thangaraj would claimthat Durairaj's plot is to the West of his plot. As such, bothBalaraman and Thangaraj would claim as though Durairaj happened to betheir Western neighbour and it is not at once clear as to how itcould be. Unless Durairaj owned property, measuring a larger extentabetting Plot No.45-A, 45-B and 44-A, both cannot claim that Durairajhappened to be their Western neighbour and this is a crucial pointto be noted.24. The evidence on record would clearly indicate and projectthat Thangaraj, and obviously after his death, his descendants areoccupying an area, some 70 feet away from the Southern side road.But as per Ex.B8, immediately to the North of the road, Thangarajshould have his area of occupation. But the evidence adduced on hisside would speak to the contrary. Ex.B8 would reveal that the plot https://hcservices.ecourts.gov.in/hcservices/ belonging to Thangaraj is situated to the North of the road and Southof the Plot bearing No.45-B and to the East of Plot No.43 and West ofPlot No.46. As such, in juxtaposition Ex.A1 and Ex.B8 areconsidered, Balaraman and Thangaraj cannot be neighbours. 25. The Plot bearing No.45-B intervenes in between the Plotsbearing Nos.44-A and 45-A. As such, all these facts are quiteobviously and axiomatically clear, but both the parties did not takeinto account these salient features and they simply drafted theirrespective plaints in their own self serving manner and went to thetrial, having some cloudy thoughts in their minds.26. Both the Courts below also did not take into considerationthese salient features. No steps were taken for locating the Plotsbearing Nos.44-A and 45-A. When certain facts could be discernedand understood clearly and palpably, by getting a Commissionerappointed and measuring the plots concerned, any amount of oralevidence would be useless.27. In this case, the oral evidence only highlights as to howboth the parties were not even aware of their respective rights aswell as in respect of what they were fighting for as against eachother. The Courts below have in fact, considered the defects in thecase of Thangaraj, but failed to consider the defects in thepleadings as well as the case put forth on the side of Balaraman. 28. As such, to the risk of repetition and pleonasm, but withoutbeing tautalogous, I would like to highlight and spotlight the factthat Balaraman is undoubtedly entitled to Plot No.44-A measuring 0.3cents as found in Ex.A1 and Thangaraj and after his death hisdescendants are entitled to Plot No.45-A, measuring an extent of 0.3cents and those respective plots should be located and accordingly,each side should be asked to restrict their claims as well asoccupation only to their respective areas and not anything more.29. Instead of getting a Commissioner appointed, as contemplatedsupra, both the Courts dilated on scanning the oral evidence of thewitnesses, who are not so well informed about the survey map andsketches. Hence, I could see that there is perversity in theapproach of both the Courts below, warranting interference by thisCourt.30. The learned counsel for the defendant relied on thefollowing decisions of the Supreme Court as well as this Court:(i) 2007-1-L.W.869 – G.AMALORPAVAM AND OTHERS VS. R.C.DIOCESE OFMADURAI AND OTHERS;(ii) 2009(3) CTC 493 – R.PANNERSELVAM VS. A.SUBRAMANIAN ANDANOTHER; https://hcservices.ecourts.gov.in/hcservices/ (iii) 2008(2) CTC 11 – THAILAMMAI AND OTHERS VS. KARUPPANAN ANDOTHERS31. At this juncture, my mind is reminiscent and redolent of thefollowing decisions also:(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 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 following https://hcservices.ecourts.gov.in/hcservices/ view 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."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 and https://hcservices.ecourts.gov.in/hcservices/ involved 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 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 1962 https://hcservices.ecourts.gov.in/hcservices/ SC 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."32. A bare perusal of the above precedents would spotlight andhighlight that the High Court while exercising the powers of theappellate Court, should consider as to whether there is anyperversity or non-application of mind on the part of both the Courtsbelow. 33. Here my discussion supra would at once make the point clearthat even the relevant facts were not taken into consideration byboth the Courts below and for that matter both the parties also hadonly over enthusiasm, to assert their own respective rights blindly,without approaching the problem with open mind, au fait with law andau currant with facts. 34. As such, the substantial questions of law are decided asunder:Substantial question of law (i) is decided to the effect thatboth the Courts below were correct in holding that Ex.B6-the saleletter executed by Subramanian is not valid in law.Substantial question of law (2) is decided to the effect thatboth the Courts below were erroneous in understanding the facts andoral evidence properly in deciding the matter and they were perversein their approach.Substantial question of law (3) is decided to the effect thatboth the Courts below were not correct in considering exhibits,namely Ex.B1 to Ex.B.33 properly.35. In the result, the judgement of both the Courts below areset aside and the matter is remanded to the lower Court with thefollowing directions: https://hcservices.ecourts.gov.in/hcservices/ The trial Court suo motto shall appoint an Advocate Commission(the cost of such appointment of Commissioner shall be borne by boththe parties equally) with the mission to visit the area concerned,with the assistant of a Government Surveyor and measure the two plotscontemplated in Ex.A1 and Ex.B8 and that too with reference to theRevenue Records and maps and locate the respective plots of theparties, in the presence of both the parties, and on receipt of theCommissioner's report and hearing objections, if any, shall give afinding as to who is really in occupation of Plot No.44-A and PlotNo.45-A. 36. In view of my findings supra, the respective parties, whoare entitled to occupation as per Ex.A1 and Ex.B8 shall be put inpossession of such respective areas and to that effect decrees shallbe passed, after hearing both sides and entertaining additionalevidence also, if necessary, and the matter shall be disposed ofwithin a period of four months from the date of receipt of copy ofthis order. Both sides shall co-operative with the trial Court forearly disposal of the matter.No costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarMskTo 1 The Principal Subordinate Judge, Chengalpattu2 The District Munsif cum Judicial Magistrate, AlandurCopy toThe Section Officer, V.R.Section, High Court, Madras+1 CC to Mr.G.Krishnamurthy, Advocate Sr.41458+1 CC to Mr.T.Ravi Devan, Advocate Sr.41211 S.A.Nos.365 and 391 of 2003KS (CO)SRA 08/10/2009