G. Kannan and another vs Kulikambai alias Saroja and 2 others

Defendants in O.S. No.327 of 1994 on the file of District Munsif Court, Nannilam are the appellants.

Suit filed by plaintiff was one for permanent prohibitory injunction restraining defendants from interfering with his possession. It is the case of

plaintiff that the property belongs to Chokkapuram Mutt and it was in the possession of one Chellapillai. As per Ex.A3, he sold the property to

one Arumuga Mudaliar and Meenakshisundaram Mudaliar. Both of them executed another sale deed on 16.2.1953 as per Ex.A2 to one

Govindaraja Pillai, who in turn sold the property to plaintiff under Ex.A1 dated 22.2.1960. Eversince that date, plaintiff is in possession of the

property.

Eversince the date of purchase, plaintiff us paying dues to Chokkapura Adhinam. Eventhough he has sold 25 cents to in Shanbagavalli, entire

property is included in the schedule. Reason for filing the suit was that defendants are attempting to interfere with his possession.

In the written statement filed by defendants, they contended that they were nowhere concerned with the suit property and they have been

unneccessarily impleaded. Thereafter it is said that the property belongs to second defendant Arulmigu Acham Theertha Vinayagar Temple. There

are nine tenants for the temple who are doing services. So long as they do services, they are not liable to be evicted. It is said that the property was

in the possession of one Kandasamy alias Alagiru as tenant. He alienanted the superstructure to one Kadirveldoss, who in turn sold the property to

one Ramalingam and he continued in possession of suit property, wherein he is running a Homeopathy Clinic. Ramalingam was mentally ill and his

younger brother Kaliaperumal took up family management and he put up a tailoring shop in the property. Kaliaperumal and Paneerselvam are

enjoying the superstructure. The superstructure became very weak and Kaliaperumal made arrangements to remove the thatched portion and to

put up roof. At that time, plaintiff came to the scene and prevented him from putting up superstructure Chokkapuram Adhinam is neither owner of

the property nor in possession of the property. They prayed for dismissal of the suit.

Originally there was only one defendant. Subsequently, by virtue of amendment, two other defendants were impleaded.

Trial Court after taking evidence held that plaintiff has miserably failed to prove his possession and it dismissed the suit.

Aggrieved by the judgment, plaintiff preferred appeal in A.S. No.20 of 1999 on the file of Principal Sub Court, Nagapattinam. Lower appellate

court reconsidered the entire evidence and came to the conclusion that plaintiff is in possession of the property and the suit was decreed as prayed

for.

The judgment and decree of the lower appellate court is assailed in this second appeal on the following substantial questions of law:

(1) Whether in a suit for bare injunction the court can go into the question of title and give a decree for injunction without the plaintiff proving

possession on the date of suit?

(2) whether the plaintiff having come to court with then case that the suit property is a vacant land, which was proved false by the Advocate

Commissioner''s report is entitled to any equity?

(3) Whether the court can ignore the admission of the plaintiff that patta is in the name of the temple which supports the case of the defendants who

are Kasavy tenants of the temple in possession of the suit property?

On going by the pleadings and evidence, I do not find that there is any merit in the second appeal.

The suit is only for injunction, and hence possession alone is material. To prove possession, plaintiff has produced documentary evidence to

show that himself and his predecessors were dealing with the property. Ex.A3 is the document of the year 1948 and purchased under Ex.A3, sold

the property to the purchaser under Ex.A2, who in turn, sold the property to plaintiff under Ex.A1. Kist is also being paid by her.

As against the said documents, contention of defendant is that they have unnecessarily impleaded and they are least concerned about the

property. In Para .2 of the written statement, it is stated thus,

Suit Property is not either in the possession of plaintiff or defendant herein. This defendant is noway concerned or connected with the suit

property and is unnecessarily dragged to the court proceedings.

Plaintiff has a case that at the time when he purchased the property under Ex.A1, it was in then possession of one Alagiri, who surrendered the

property within few days after his purchase and eversince the date, he is in possession. He also said that the same is old building, which has

become dilapidated and it is a vacant land. Property is described in the plaint as if it is a vacant land.

Plaintiff has also produced kist receipts and also receipts for payment of rent to Chokkapuram Adhinam. From these documents, it could be

inferred that plaintiff is in possession of the property.

Exs.C1 and C2 are Commissioner''s report and plan when he visited the property in December, 1994. The very same Commissioner visited

the property again who has prepared Exs.C3 and C4 report and plan. Lower appellate Court after evaluating evidence held that from the

Commissioner''s report it could be seen that the plaint property is a vacant land. Taking into consideration various documents filed by plaintiff in

interference of possession is not claiming possession, or right over property and when they also do not claim possession the suit is only to be

decreed. I do not find that the interference drawn by lower appellate court is liable to be interfered with u/s 100 of Code of Civil Procedure.

Lower appellate Court on appreciation of evidence has come to the conclusion that the plaintiff is in possession. It is not the case that lower

appellate court did not considered any evidence. In such cases, interference u/s 100 of CPC cannot be had. The same is clear in view of the

decision reported in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, . In para 4 of the judgment, their Lordships held thus:

.... It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of

law. In exercise of the powers under this section the findings of fact of the first appellate Court are found to have been disturbed. 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 to or enlarge those grounds. The second appeal cannot be decided on merely

equitable grounds. The concurrent findings of facts however erroneous cannot be disturbed by the High Court in exercise of the powers under this

section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunila v. Mehta and Sons

Ltd. v. Century Spg. & Mfg Co. Ltd., held thus,

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 then 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 calls 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.

Learned Counsel for appellant attacked the judgment of lower appellate court mainly for the reason that the finding entered by it are not

correct. That argument cannot be taken into account in view of the above decision. It may also be noted on all three sides of the plaint property,

plaintiff has his own properties and northern boundary is road. From the description of property, it is seen that plaint property is bounded by

plaintiff''s other properties. From that also an interference could be drawn that the plaintiff has possession over the plaintiff schedule property.

All the questions of law are found against appellants and the second appeal is dismissed. No costs. Consequently, CMP.No 13201 of 1999 is

also dismissed.