Vettaikaran @ Poonga Gounder vs Nanjammal

G. Rajasuria, J.—This Second appeal is focussed by the second defendant animadverting upon the judgment and decree dated 15.6.2011

passed by the Subordinate Judge, Gobichettipalayam, Erode District, in A.S. No. 75 of 2010 confirming the judgment and decree dated

1.10.2010 passed by the District Munsif Court, Gobichettipalayam, in O.S. No. 339 of 2008, which was one for partition. The parties are

referred to hereunder according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus:

(a) The respondent herein, as plaintiff, filed the suit for partition on the main ground that the suit property happened to be the ancestral property,

over which, the plaintiff''s father Appachi Gounder and his son-D1/Nanjappa Gounder had equal shares as co-owners. The said Appachi Gounder

died 20 years anterior to the date of filing of the suit, leaving behind only his daughter the plaintiff-Nanjammal and his son D1-Nanjappa Gounder

as the legal heirs for inheriting Appachi Gounder''s half share. Whereupon the suit was filed seeking 1/4th share of the plaintiff in the entire

property.

(b) Pending litigation D1 died and his LRs were added.

(c) D1 filed the written statement contending that as per the principle of ''ouster'', the plaintiff was having no right over the suit property.

(c) Whereupon issues were set down for trial. Up went the trial, during which, the plaintiff examined herself as P.W.1 along with P.W.2 and

marked Exs. A1 to A9. The second defendant examined himself as D.W.1 along with D.W.2 and marked Exs. B1 and B2.

(d) Ultimately the trial Court decreed the suit allotting half share in the entire property recognising the plaintiff''s half share in the half share of her

father in the property. As against which, the defendant preferred the appeal for nothing but to be dismissed by the first appellate Court confirming

the judgment and decree of the trial Court.

Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed by the second defendant

on various grounds and also suggesting the following substantial questions of law:

Whether the lower Court is correct in holding that the respondent wash in joint possession of the suit property especially when the respondent

left the property 34 years ago?

Whether the joint possession of the suit property could be presumed merely because the respondent is a co-sharer without providing the same?

(Extracted as such)

At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court: Union of India (UOI) Vs.

Ibrahim Uddin and Another, ; an excerpt from it would run thus:

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of

facts or of law. In State Bank of India and Others Vs. S.N. Goyal, this Court explained the terms ""substantial question of law"" and observed as

under: (SCC p. 103, para 13)

13... The word ""substantial"" prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions

of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial

questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as

between the parties...... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A

question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law...... There

cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.

(Emphasis added)

To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a

matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions

incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the

document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the Court below

and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to

pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of

the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application

has been allowed. However, the application should not be moved at a belated stage.

In the same precedent, the following decisions are found referred to:

(1) Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd.,

(2) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi,

(3) AIR 1947 19 (Privy Council)

(4) (1949) 17 ITR 269

(5) Oriental Investment Co. Ltd. Vs. Commissioner of Income Tax, Bombay,

(6) Jagdish Singh Vs. Natthu Singh,

(7) Prativa Devi Vs. T.V. Krishnan,

(8) Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar,

(9) Ragavendra Kumar Vs. Firm Prem Machinary and Co.,

(10) Molar Mal (Dead) Through L.Rs. Vs. M/s. Kay Iron Works(P) Ltd.,

(11) Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others,

(12) Dinesh Kumar Vs. Yusuf Ali,

(13) Jai Singh Vs. Shakuntala,

(14) Kashmir Singh Vs. Harnam Singh and Another,

A mere running of the eye over the above precedents would connote and denote, exemplify and demonstrate that unless there is any substantial

question of law is involved, the question of upsetting the finding of the court below would not arise.

Keeping in mind the dictum as found enunciated in the aforesaid precedents of the Supreme Court, I would like to analyse the records.

There is a concurrent finding of fact that there is no ''ouster'' and as against such finding of fact, I do not think that there will be any chance of

revaluating the evidence. No perversity or illegality is found set out in the grounds of appeal also, concerning the findings of both the Court below.

The first appellate Court correctly held that the father of the plaintiff died only in the year 1974 and consequent upon his death alone, the right of

the plaintiff emerged over the suit property towards her half share in the half share of the father. The first appellate Court being the last Court of

facts held that absolutely there is nothing to show that there was ''ouster''. Hence, I am of the considered view that no question of law much less

substantial question of law is involved in this matter. Accordingly, the second appeal is dismissed. No costs. The learned counsel for the appellant

would make an extempore submission that if the matter is referred to Mediation then there will be some chance of amicable settlement. I observe

that such exercise can be undertaken at the instance of the appellant/defendant even before the Court which is seized of the final decree

application.