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Judgment
Honourable Mr. Justice G. Rajasuria
Animadverting upon the judgment and decree dated 13.08.2010 passed in A.S.No. 159 of 2009 by the learned I Additional Sub Judge,
Trichirappalli, in confirming the judgment and decree dated 24.08.2009 passed in O.S.No. 1070 of 2007 by the learned II Additional District
Munsif, Trichirappalli, this second appeal is focussed by the original plaintiffs.
The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
Broadly, but Briefly, narratively but precisely, the relevant facts absolutely necessary for the disposal of this Second Appeal, would run thus:
The plaintiffs filed the suit for permanent injunction on the ground that the defendants earlier unsuccessfully demanded the plaintiffs to sell the suit
property in their favour. Whereupon the defendants started creating discomfitures to them, which necessitated the plaintiffs to seek injunction.
Whereas the defendants filed the written statement resisting the suit. The trial Court framed the following issues:
(i) Whether the plaintiffs are entitled to the relief of permanentin junction?
(ii) To what relief?.
During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.6 were marked on the side of the plaintiffs. D.W.1 and D.W.2 were examined
and Exs.B.1 and B.2 were marked on the side of the defendants.
The trial Court ultimately dismissed the suit, against which, the appeal was filed for nothing but to be dismissed.
Being aggrieved by and dissatisfied with the same, the present Second Appeal is focussed by the plaintiffs on various grounds suggesting the
following substantial question of law:
Whether in law the learned Courts below are right in dismissing the suit for injunction especially when the plaintiffs established their possession of
the property on the date of filing of the suit?.
(extracted as such)
The learned Counsel for the Plaintiffs would submit that the suit is for a bare injunction based on a the Will dated 27.11.1998 executed by the
plaintiffs'' father and since the defendants happened to be strangers, there was no necessity for praying for declaration of title of the plaintiffs over
the suit property.
At this juncture, I would like to fumigate my mind with the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (minor) Vs. Seshammal, . Certain excerpts from it, 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
appealmustpreciselystatethesubstantialquestionoflawinvolvedandthe 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 off act....
*****
21..... However, it is clear that the legislature has chosen not to qualify the scope of ""substantial question of law"" by suffixing 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 case6 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 case6, SCR p. 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 questionwasofapplyingthoseprinciplestotheparticular 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
case6, SCR pp. 557-58)
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 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.
*****
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 is 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 v. Harnam Singh and Another reported in 2008 (4) SCALE 300
(iii) StateBank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
A plain reading of those precedents would exemplify and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be
entertained, unless a substantial question of law is involved in the matter.
A perusal of the judgments of both the Courts below would enable this Court to see and visualize that the plaintiffs suppressed the material
facts that earlier as per a final decree, the property in dispute along with other properties, were partitioned and the first appellate Court
categorically gave a finding that there was no iota or shred, shrad or miniscule, pint or jot of evidence to establish and prove that the plaintiffs
allegedly acquired right over the suit property.
The findings of the first appellate Court based on various exhibits is to the effect that the first defendant is one among the descendants of the
original owner and that there is a serious title dispute also among the parties. The first appellate Court correctly adhering to the proposition of law
that in respect of vacant land, possession follows title based on the decision of the Honourable Apex Court in Arasappan Karayalar and Another -
Vs-Subramania Karayalar reported in 2001 (1) LW 724 , held that in the absence of the plaintiffs having proved and established their title, no
decree could be passed in their favour for bare injunction.
A perusal of the judgments of both the Courts below would demonstrate and display that no clinching evidence has been adduced by the
plaintiffs to prove their effective possession over the said vacant land and in such a case, ushering in the aforesaid proposition of law that
possession follows title, is quite acceptable. It is obvious and axiomatic that there was no prayer for declaration of title also in the suit.
Hence, I am of the considered view that no question of law much less a substantial question of law has arisen for consideration in this case and
I could see no perversity or illegality in the findings of fact by both the Courts below.
In the result, the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.