Sundarambal vs Venkatesa Padayachi

R.S. Ramanathan, J.—The Plaintiff, who was successful in the trial Court and lost in the First Appellant Court is the Appellant herein.

The Plaintiff/Appellant in all the three appeals are one and the same person.

The dispute, in these appeals, is in respect of the eastern wall of the Plaintiff''s house. O.S. No. 127 of 1982 was filed by the Plaintiff/Appellant

for declaration of his title to the ''A'' schedule property and for recovery of possession of ''B'' schedule property, after removing the superstructure

viz., Brick-wall put up by the Plaintiff.

The case of the Plaintiff in the suit was that the ''A'' schedule property is a house and the eastern wall of the house also belongs to him

exclusively and he is also having an extent of 102 square feet east of the ''A'' schedule property, which is described as ''B'' schedule property and

the Defendants have No. title or possession of the same and the Defendant had encroached upon the ''B'' schedule property and constructed a

wall and therefore, suit was filed for declaration and for recovery of ''B'' schedule property.

O.S. No. 181 of 1986 was filed by the Plaintiff against the Respondent and another, the Commissioner, Sirkali Municipality for injunction

restraining the 2nd Defendant from granting permission to the first Respondent/first Defendant to demolish the Plaintiff''s eastern wall or to do any

other act affecting the Plaintiff''s right and O.S. No. 174 of 1987 was filed by the Plaintiff for declaration that the Plaintiff has got an easementary

right to discharge the water of the Plaintiff eastern wari on the east of the Plaintiff wall on the Defendant''s side and for direction, directing the

Defendant to remove his newly constructed western wall, which is adjourning the Plaintiff''s eastern wall.

A reading of the plaints, in all the suits, would make it clear that the Plaintiff claims title to the eastern wall and also claims title on some portions

east of his eastern wall and sought for demolition of the wall put up by the Defendant in the portion belonging to the Plaintiff and for recovery of

possession of the property from the Defendant and also claimed easement right over the same.

The case of the parties in these appeals are as follows:

Originally, the suit property and the larger extent belonged to Abdul Razack and Ors. and under a deed of exchange, dated 16.11.1952, an extent

of 14 feet east-west and 128 feet north-south was given by Abdul Razack in favour of his brother A. Sheik Ismail. It is further admitted that the

total extent of the property, that was in the possession and enjoyment of Abdul Razack was an extent of 42 feet east-west and 128 feet north-

south and out of the total extent of 42 feet east-west, 14 feet east-west on the western portion was given in exchange to A. Sheik Ismail and from

Sheik Ismail, that property was purchased by the Plaintiff, under a registered sale deed 15.10.1980 and in the sale deed in favour of the Plaintiff

Ex.A1, it has been clearly stated that the eastern wall belongs to the Plaintiff and the Plaintiff is entitled to 14 feet east-west and as per the

Commissioner''s report, the east-west measurement of 14 feet would go upto the wall constructed by the Defendant east of the Plaintiff''s eastern

wall and therefore, the Defendants have encroached upon the Plaintiff''s property and constructed a wall and that has to be demolished and the suit

has to be decreed.

On the other hand, the case of the Defendant was that the entire extent of 42 feet east-west and 120 feet north-south was surrounded by lane

on the eastern side and the western side and it was stated in the original document of title that the measurement of 42 feet x 120 feet included the

lane and without measuring the property from the lane, the Commissioner and Surveyor measured the property from the western wall of the

Plaintiff and that was the reason for the confusion and having measured east-west measurement from the Plaintiff''s western wall, the Commissioner

found that the wall constructed by the Defendant east of the Plaintiff''s eastern wall was within the distance of 14 feet and therefore, it is contended

by the Plaintiff that the wall constructed by the Defendant was an encroachment and the Plaintiff is having right over the same. It is further

contended that had the property been measured from the lane it would have been found out that the Plaintiff has No. property east of the eastern

wall and that portion belonged to the Defendant and that was not properly appreciated by the Courts below. It is further contended that out of the

42 feet east-west, western 14 feet, including the lane on the western side was given to the Plaintiff''s vendor under Ex.A2 and after the exchange

deed Ex.A2, the Plaintiff''s vendor mortgaged the property to the Plaintiff under Ex.A4 and prior to the said deed Ex.A4, there was an agreement

of sale between the Plaintiff and his vendor under Ex.A5 and in Exs.A4 and 5, it has not been stated that eastern wall is the exclusive wall of the

Plaintiff and only for the first time, in Ex.A1 the exclusive right of the eastern wall was given to the Plaintiff and therefore, the Plaintiff cannot claim

any right over the eastern wall. The trial Court accepted the case of the Plaintiff and decreed the suit as prayed for and the First Appellate Court

set aside the findings of the trial Court and held that the Plaintiff was not entitled to declaration and the Plaintiff''s eastern wall is not the exclusive

wall of the Plaintiff and the Plaintiff has No. right over any extent of the property that is situate east of the wall and the measurement given by the

Commissioner cannot be accepted, as the Commissioner has not measured the property from the lane, which was also conveyed and therefore,

the Plaintiff is not entitled to declaration and other reliefs as prayed for and allowed the appeal.

At the time of admission, the following substantial questions of law were framed by this Court:

Whether documentary evidence could be excluded by oral evidence?

Whether the testimony of the Executive Magistrate be deemed to be that of an interested or partisan witness if the party calling him as a

witness happens to be a Government servant''s relative?

Whether the Court of appeal has power to examine the Commissioner in case of any ambiguity in his report or to remand the case for

recording evidence to clear the ambiguity?

Heard both sides.

According to me, the substantial questions of law framed by this Court, at the time of admission, cannot be considered as substantial questions

of law, in the light of the judgments of the Hon''ble Supreme Court reported in 2009 (1) LW 1 in the case of Hero Vinoth (minor) Vs. Seshammal,

in the case of Hero Vinoth (Minor) v. Seshammal and 2008(4) Scale 300 in the case of Kashmir Singh v. Harnam Singh and Anr.

In the judgment reported in Hero Vinoth (minor) Vs. Seshammal, and in Kashmir Singh Vs. Harnam Singh and Another, , the Hon''ble

Supreme Court has laid down the principles relating to Section 100 CPC as follows:

(i)An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question

of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is

misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii)The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having

a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial

question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a

debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of

express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal

principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision

rendered on a material question, violates the settled position of law.

(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-recognized 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, when the

evidence, taken as a whole, is not reasonable capable of supporting the finding.

Further in the judgment reported in Kashmir Singh Vs. Harnam Singh and Another, held as follows:

A. 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. It

satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so

formulated. However, the Respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any

substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law,

though not formulated by it with the object of ensuring that No. injustice is done to the litigant where such a question was not formulated at the time

of admission either by mistake or by inadvertence.

B. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and

formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without

adhering to the procedure prescribed u/s 100 of the Code. It has further been found in a number of cases that No. efforts are made to distinguish

between the question of law and a substantial question of law. In exercise of the powers under this section in several cases, 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 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.

C. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High

Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not

been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts,

the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law.

But where it is found that the first appellate court has assured jurisdiction which did not vest in it, the same can be adjudicated in the second

appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it

cannot be termed to be an error either of law or of procedure requiring interference in second appeal.

D. The phrase ""substantial question of law'', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as

qualifying ""question of law"" means of having substance, essential, real, of sound worth, important or considered. It is to be understood as

something in contradistinction with - technical, of No. substance or consequence, or academic merely. However, it is clear that the legislature has

chosen important 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 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.

E. 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.

Considering the principles laid down by the Hon''ble Supreme Court in the above judgments, in my opinion, the substantial questions of law

framed at the time of admission, cannot be treated as substantial questions of law.

According to me, No. substantial questions of law arising for consideration in these second appeals and the Lower Appellate Court has rightly

appreciated the oral and documentary evidence and dismissed the suit and allowed the first appeal.

The specific case of the Plaintiff was that the property was originally owned by Abdul Razack and Anr. and under Ex.A2, eastern portion

measuring an extent of 14 feet east-west was given in exchange to the Plaintiff''s vendor and thereafter, the Plaintiff purchased the property under

Ex.A1 from his vendor. A reading of Ex.A2 would make it clear that what was conveyed to the Plaintiff''s vendor was an extent of 14 feet east-

west, which includes the lane. In, Ex.A2, it has been stated that the total extent of the property is having lane on the eastern and western side and

the property includes the lane also. The specific words used are: (sic) Therefore, the total extent of the property includes the lane on the eastern

and western side. Under Ex.A2 western portion having an extent of 14 feet east-west was conveyed to the Plaintiff''s vendor. While describing that

portion, it has been stated that (sic). In Ex.A2, it was not stated that eastern wall was the exclusive wall of the Plaintiff''s vendor and that was

conveyed to the Plaintiff''s vendor and under Ex.A2 out of the total extent of 42 feet east-west, which includes the lane on both sides, 14 feet east-

west on the western side including the lane was conveyed. Ex.A4 was the mortgage created by the Plaintiff''s vendor in favour of the Plaintiff and in

that document also, there was No. mention about the eastern wall exclusively belonged to the Plaintiff''s vendor. The same recital regarding the

extent and boundary as mentioned in Ex.A2 was stated in Exs.A4 and A5 and only for the first time, in Ex.A1 viz., Plaintiff''s Sale Deed, it was

stated that eastern wall and western wall belongs to the Plaintiff exclusively. Even in Ex.A1, it has been specifically stated that the suit property

includes the western lane. Therefore, the property that was conveyed to the Plaintiff measuring an extent of 14 feet east-west starts not from the

western wall of the Plaintiff''s house, but from the lane that is situated west of the suit property and without noticing the same, the Commissioner

measured the property from the western wall of the Plaintiff''s house and found that 14 feet extend upto the Defendant''s newly constructed eastern

wall and therefore, the eastern wall of the Plaintiff belongs to him exclusively the Plaintiff is also having right over a portion of land situated east of

his eastern wall. Had the Commissioner measured the property in the middle of the property on the eastern that mistake could not have happened.

Therefore, having regard to the recitals in Exs.A2, 4 and 5 wherein there was No. claim to the exclusive right over the eastern wall was given to the

Plaintiff and the measurement was given by taking into consideration the lane portion also, it was rightly held by the Lower Appellate Court that the

Plaintiff has not proved his right or title over the wall, that was constructed by the Defendant and the Defendant has constructed the wall within his

own property and the Plaintiff has not proved her title to his eastern wall. Once the Plaintiff has No. title to the eastern wall, she is not entitled to

the declaration and the other relief claimed in the other suits. Hence, I do No. see any substantial questions of law in these second appeals and the

First Appellate Court has rightly appreciated the oral and documentary evidence and allowed the appeal and dismissed the suit.

In the result, these second appeals fail and the same are dismissed. No. costs.