Balaramapillai vs Rajagopal

G. Rajasuria, J.—These two Second Appeals have been filed by the Plaintiff, animadverting upon the common judgement and decrees dated 05.09.2006 passed by the learned Subordinate Judge, Ami, Tiruvannamalai in A.S. No. 16 of 2006 and A.S. No. 17 of 2006, confirming the common judgement and decrees dated 30.11.2005 passed by the learned District Munsif, Ami, Tiravannamalai District in O.S. No. 218 of 1996 and O.S. No. 446 of 1998. For convenience sake, the parties are referred to here under according to their litigative status before the Trial Court. Avoiding discursive discussion, I would like to pithily and precisely, tersely and briefly set out the germane facts as under:

(i) The Plaintiff/the Appellant in the Second Appeal, viz., Balaramapillai and his father filed the Suit O.S. No. 218 of 1996 seeking injunction so as to restrain the Defendant herein, viz., Rajagopal from interfering with the possession and enjoyment of the suit property.

(ii) While so, during the pendency of the Suit, according to the Plaintiff/Appellant herein the Defendant/Respondent barged into the suit property and occupied it thereby necessitating the Appellant herein to file one other Suit in O.S. No. 446 of 1998 seeking the relief of declaration of his title and for recovery of possession of the same suit property and also for recovering damages.

(iii) In both the Suits, the Defendant entered appearance and resisted the Suit. During the joint trial, the Second Plaintiff in O.S. No. 218 of 1996, examined himself as P.W.1 apart from examining one Munusamy Pillai as PW2, Arumugam as PW3 and Mani as P.W.4 and marked Exs.A1 to A15. The Defendant in both the Suits, examined himself as D.W.1 and Exs.B1 to B12 were marked.

(iv) In as much as both the Suits were interrelated and inter linked, interconnected and entwined with each other, it necessitated the lower Court to correctly conduct the joint trial and pronounce the common judgment.

(v) Ultimately the Trial Court dismissed both the Suits.

(vi) Being disconcerted and aggrieved by the said common judgment, A.S. Nos. 16 and 17 of 2006 were filed by the Plaintiff/Appellant herein for nothing but to be dismissed by the First Appellate Court, as against which, these two Second Appeals have been focussed on various grounds suggesting virtually, common substantial questions of law, which are extracted here under:

(a) Whether the title of the property is conferred based on Sale Deed under Ex.A1 or the Revenue records?

(b) Whether the Defendant has locus standi to defend the case when in respect of the same subject matter of the property the relief was negatived in a Suit filed by his father?

(c) Whether the relief could be granted in favour of Plaintiff under Ex.A12 which is a vital document to prove the claim of the Plaintiff?

(extract as found in the memorandum of Second Appeal)

Heard the learned Counsel appearing for the Plaintiff/Appellant and the learned Counsel appearing for the Defendant/Respondent.

The learned Counsel for the Plaintiff/Appellant would advance his argument to the effect that as per Ex.A1, the Sale Deed dated 10.05.1957, the Plaintiff''s mother purchased an extent of 2 acres and 18 cents in Old Survey No. 137/5 out of a larger extent of land therein; the Defendant''s father purchased as per Ex.A13, the Sale Deed dated 24.12.1955, an extent of 71 cents in the same survey number 137/5; however, the Defendant''s father Munusamy Gounder executed Ex.B5 the Settlement Deed dated 14.12.1983 in favour of the Defendant specifying the extent as 88 cents instead of specifying the said 71 cents as found set out in Ex.A13. Both the Courts below simply relying on the recent patta and other revenue records held as though the Plaintiff had not proved that after purchasing the property under Ex.A1, the Plaintiff''s mother took steps to take possession of the said extent of 2 acres and 18 cents after measuring and demarcating the same and both the Courts erroneously rejected the prayer of the Plaintiff.

By way of torpedoing and pulverising the arguments of the learned Counsel for the Plaintiff/Appellant, the learned Counsel for the Defendant/ Respondent advanced his argument, the pith and marrow, the long and short of it would be to the effect that the onus of proof is on the Plaintiff to prove his case; but, he has not chosen to do so; whereas the Defendant established before the Court that the previous said Survey No. 137/5 was subdivided during re-survey and the Survey No. 176/3A and 176/3B were shown in Defendant''s name; the Plaintiff even though claims 12 ares (30 cents) of land in Re-survey No. 176/3A as though under the encroachment of the Defendant, yet the fact remains that the patta relating to Re-survey No. 176/3A stands in the name of the Defendant only and as such, the Defendant proved that he has got right of ownership over Survey No. 176/3A and that no interference with the judgment of both the Courts below are required.

The Trial Court referred to Ex.B1, the Patta Pass Book and pointed out that the Survey No. 176/3 was divided into two sub divisions, viz., Survey Nos. 176/3A and 176/3B; Exs.B2 and Exs.B6 to B12 are the Tax Receipts evidencing the payment of tax by the Defendant in respect of re-survey No. 176/3A, which is the suit property and Ex.B3 is the extract of Adangal for the fasli year 1398 to 1410 relating to the suit property, which speaks in support of the Defendant''s possession; based on those anti litem motem documents, the lower Court has arrived at the reasoned conclusion that it is the Defendant, who has been in possession and enjoyment of the suit property along with the rest of his property. The Trial Court also has correctly highlighted and spotlighted the fact that there is no iota or shred, shard or miniscule, scintilla or pint sized evidence to prove that the Plaintiff/Appellant herein was in possession and enjoyment of the suit property, as on the date of filing of the Suit O.S. No. 446 of 1998. Is really the Plaintiffs mother and following her, the Plaintiff, have been in possession and enjoyment of the 30 cents of land in Survey No. 176/3A, certainly, the Plaintiff must be able to produce some survey records to prove his possession and enjoyment; but, he has not done so.

I am fully aware of the fact that patta and other Revenue Records would not constitute title but the same would certainly be effective evidence to prove possession and enjoyment of the suit property, unless, it is proved otherwise. As such, the patta, chitta and adangal as revealed by Ex.B1 (patta), Ex.B3, Chitta for the fasli year 1398 to 1410, Ex.B4, the Chitta and Ex.B2, Exs.B6 to B12, the Tax Receipts coupled with Ex.B5, the Settlement Deed dated 14.12.1983 would demonstrate and evidence that the Defendant has been in possession and enjoyment of the suit property as owner. The Suit O.S. No. 218 of 1996 was filed obviously in the year 1996 as though the Appellant herein was in possession and enjoyment of the suit property; but the analysis of the aforesaid documents would exemplify and evince, convey and portray that even as early as in the year 1983, so to say, the year in which, the Ex.B5, the Settlement Deed emerged, the suit property was under the possession and enjoyment of the Defendant''s father and following the same, the Revenue Records would also reveal that the Defendant has been in possession and enjoyment of the suit property. Exs.A7, A8 and A9, the tax receipts refers to door numbers 62, 63, 66, 70 and 75 and as correctly observed by the Trial Court, there is no proof to indicate that those patta numbers refer to the suit property and ultimately, there is no indication that those Tax Receipts are relating to the suit property; Ex.A10, the correlation statement would refer to old Survey No. 137/5 is equivalent to Re-survey No. 176/1; however, PW4, the Village Administrative Officer of the relevant village in his deposition with reference to records clearly indicated and expatiated that Ex,A14 is relating to survey No. 176/4 and Survey No. 176/3 and that Survey No. 176/3A (the suit property) and 176/3B as per Revenue Records stand only in the name of the Defendant. Further more, in Exs.A7 to A9, there is no reference to survey Number at all.

The First Appellate Court also referring to the records analysed the evidence and agreeing with the Trial Court correctly arrived at the just conclusion, warranting no interference by this Court.

The learned Counsel for the Plaintiff/Appellant would invite the attention of this Court to the fact that earlier the Defendant filed the Suit O.S. No. 668 of 1988 seeking injunction but the same was dismissed. The learned Counsel for the Defendant/Respondent would argue that the said previous Suit for injunction was dismissed for default and the Plaintiff/ Appellant herein cannot fob off the burden of proof as well as the onus probandi to prove his case on the Defendant.

It is a trite proposition that the Plaintiff/Appellant has to stand or fall on his own pleadings and evidence and he cannot try to achieve success in the litigative battle by picking holes in the case of the Defendant. As such, in these circumstances, there is nothing to point out that interference with the judgments of both the Courts below is warranted.

The suggested substantial question of law (a) is relating to the Sale Deed-Ex.A1 dated 10.05.1957 and the Revenue Records. In fact, the Plaintiff/ Appellant by suggesting the said substantial question of law would try to project, as though the Revenue Record would not be the decisive factor to decide the title but only the Sale Deed-Ex.A1.

In view of my discussion supra, it is clear that there is no indication that as per Ex.A1, the Sale Deed dated 10.05.1957, the Plaintiff''s mother took delivery of possession of an extent of 2 acres and 18 cents and continued to enjoy it and that there is also no indication that the suit property now referred to in the plaint in Survey No. 176/3A and 176/3B, has been purchased by the Plaintiff''s predecessor in title and that she had been in possession of the same. The Plaintiff at the most was able to point out that even though the Defendant''s father as per Ex.A13 purchased only an extent of 71 cents nonetheless, he had settled in favour of his son an extent of 88 cents, so to say, 17 cents more than what he purchased. However the suit property here refers to 12 ares, which is equivalent to 30 cents and there is no indication that his claim for 30 cents in Survey No. 176/3A is covered by Ex.A1 and that he has been in possession and enjoyment of the same ever since 1957 either by enjoying himself or through his mother. Hence, in such a case, the suggested substantial question of law (a) does not arise.

The suggested substantial question of law (b) is with regard to the previous Suit instituted by the Defendant''s father for injunction and dismissed.

To the risk of repetition, without being tautologous, here the Plaintiff/ Appellant has filed the suit and it is for him to prove his entitlement to recover the suit property after getting his title declared in his favour; but he failed to do so. As such the suggested substantial question of law (b) also does not arise.

The suggested substantial question of law (c) is relating to the Commissioner''s Report and Sketch in the previous Suit O.S. No. 668 of 1988 instituted by the Defendant''s father.

The Commissioner''s Report and Sketch in one Suit will not automatically be evidence in the subsequent Suit. The Trial Court in para No. 14 of its judgment referred to Ex.A2, the judgment in the previous Suit O.S. No. 668 of 1988 instituted by the Defendant''s father and held that the said Suit was dismissed for default; and that the Commissioner appointed in that Suit did not measure the suit property with the help of a surveyor. The fact remains that the earlier suit was for 88 cents of land. But here, the present Suit filed by the Plaintiff/Appellant is for 30 cents of land and he could not account for the location of the 30 cents of land but, he could point out only that the Defendant, as already held supra is enjoying 17 cents of land over and above, what is contemplated in Ex.A13. The discussion supra would indicate that it is the Plaintiff who approached the Court should prove his right to get declaration in respect of 30 cents of land but, he miserably failed to prove his right of ownership over the suit property situated in Survey No. 176/3A.

Hence, the suggested substantial question of law (c) also does not arise.

At this juncture my mind is reminiscent and redolent of the following decisions of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal, , certain excerpts from its would run thus:

After the amendment a Second Appeal can be filed only if a substantial question of law is involved in the case. The Memorandum of Appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case....

18....It has to be kept in mind that the right of Appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a Second Appeal can be maintained and no Court has the power to add or to enlarge those grounds. The Second Appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact....

21....However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a Second Appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law'' as it was employed in the last clause of the then existing Section 100, CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (Sir Chunilal case, SCRp.557)

When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.

This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case, SCR pp.5 57-58)

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari).

24.....

(iii) The general rule is that High Court will not interfere 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 have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(ii Kashmir Singh Vs. Harnam Singh and Another,

(iii) Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka,

A plain reading of those precedents would reveal and demonstrate that u/s 100, of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved. Here as held supra, there is no substantial question of law is found exemplified. Accordingly, both the Second Appeals are dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petitions are closed.