Madras High Court
D.Thirumurugan vs D.Devarajan on 22 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.396 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
S.A.No.396 of 2021
&
C.M.P.No.7488 of 2021
1.D.Thirumurugan
2. D.Saravanamyil ... Appellants
Vs.
1. D.Devarajan
2. G.Yogambigai
3. G.Thani @ Thanikachalam
4. G.Chandrasekaran ... Respondents
Second Appeal filed under Section 100 of the Code of Civil Procedure,
1908 against the judgment and decree dated 31.07.2014 made in O.S.No.210 of
2010 on the file of the learned First Additional District Munsif Court,Bhavani
confirming the judgment and decree dated 09.10.2020 made in A.S.No.68 of 2014
on the file of the learned Sub Court, Bhavani.
For Appellant : Mr.N.Manokaran
JUDGMENT
Litigation which has lead to captioned second appeal commenced more than one decade ago, to be precise on 01.07.2010 when a plaint was presented in the learned 'First Additional District Munsif Court, Bhavani' (hereinafter 'trial Court' for the sake of brevity) by one D.Devarajan and three others {taken on file as 1/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 O.S.No.210 of 2010 by trial Court} inter alia with a prayer for permanent injunction restraining/seeking one D.Thirumurugan and his brother D.Saravanamyil from interfering with peaceful possession and enjoyment of a common pathway.
2. To appreciate this judgment and order, this Court deems it appropriate to scan and reproduce the sketch placed before this Court as part of case file: 2/15
https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021
3. The striped portion in the sketch on the northern side is plaintiffs' property and the property on the southern side is defendants' property. The pathway running east to west in between these two properties is the subject matter of litigation and therefore, the same shall be referred to as 'suit pathway' for the sake of convenience. This Court is informed that suit pathway is 1.5 meters wide and it is 16 meters long i.e., 16 meters ease to west. This Court is also informed that the plaintiffs property is comprised in S.Nos.601/8, 601/9 and defendants property is comprised in S.Nos.601/12, 601/14 and the suit pathway is situate in S.No.601/10. To be noted, all survey numbers are in Olgadam Village, Bhavani Talk within the sub-registration District of Anthiyur and Erode Registration District. After full contest, the suit was decreed by the trial Court in and by judgment and decree dated 31.07.2014. The defendants carried it in appeal by way of a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) vide A.S.No.68 of 2014 on the file of learned 'Sub- judge's Court, Bhavani' (hereinafter 'first Appellate Court' for convenience). First Appellate Court also dismissed the appeal suit in and by judgment and decree dated 09.10.2020. It was made after full contest. In other words, first Appellate Court confirmed the judgment and decree of the trial Court. As against these two 3/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 concurrent judgments/decrees, two defendants have come before this court by way of captioned second appeal, which is obviously under Section 100 CPC.
4. Notwithstanding very many grounds/questions, raised / proposed in the memorandum of grounds of second appeal, the arguments of Mr.N.Manokaran, learned counsel for appellants are crisp and a summation of the same is as follows:
'a) The defendants' title is traceable to a sale deed dated 14.07.1950 (Ex.B1) and a partition deed dated 25.03.1971 (Ex.B2) followed by defendants' sale deed dated 24.05.2010 (Ex.B3), but trial Court and first Appellate Court had decreed the suit by placing reliance on Revenue documents (Ex.A5 and Ex.A6) which are field map, sketch and Natham Revenue record respectively;
b) Plaintiffs have not specifically pleaded any right of easement or any documentary right. The defendants may or may not have clinchingly demonstrated its case, but the burden of proof is on the plaintiffs.
5. This Court now proceeds to examine the aforementioned submissions. A careful perusal of the judgments of trial Court and first Appellate Court demonstrate that suit pathway is situate in Government poramboke land. Learned counsel for appellants submits that this is an incorrect classification and it is 4/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 actually 'occupied natham'. Learned counsel submits that the powers of the Civil Court is plenary and it can correct these errors.
6. A careful perusal of the judgments of the Courts below bring to light that the suit pathway and adjacent properties originally belonged to one Chinnathambi Chettiar, who purchased the same vide Ex.B1 sale deed dated 14.07.1950. The said Chinnathambi Chettiar had five sons who partitioned the properties amongst themselves vide Ex.B2 partition deed dated 25.03.1971, the defendants are two sons of one of the five sons of Chinnathambi Chettiar (defendants are sons of D.C.Damodaran, fourth son of Chinnathambi Chettiar). Plaintiffs repurchased all adjacent properties from defendant's first cousin, who are children of other sons of Chinnathambi Chettiar. What is of relevance is, the Village Administrative Officer of Olgadam village, which is the village in which the suit property is situate, was examined as PW2 and his deposition is clinching. It has not been derailed or unsettled in cross-examination. It is to be noted that from his deposition and deposition of DW1, it emerges clearly that entire Olagadam village is situate in a particular survey number, these lands are natham and patta was given to people residing therein and that the suit pathway is Government Poramboke. The finding returned by trial Court in this regard is articulated in 5/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 paragraph 14, which reads as follows:
'14. vdnt nkw;go th/rh/2 gp/rh/1 rhl;rpaj;jpy; ,Ue;Jk;, ePjpkd;w Mizah; mwpf;ifapy; ,Ue;Jk;
jhth jlk; 1950tJ tUlj;jpy; ,Ue;J bry;fpwJ
vd;Wk;. Jhth jlj;jpid hP/r/vz; 601-10d; tHpahf
bry;Yk; 601-12 kw;Wk; 601-13 chpikahsh;fs; brd;W
tUfpwhh;fs; vd;W ,e;ePjpkd;wk; Kot[ bra;fpwJ/
th/rh/2 rhl;rpaj;jpd;go xyflk; fpuhkk; KGtJk; 97-
2y; jhd; cs;sJ/ ,it midj;Jk; ej;jk;
bghJthf ej;jk; brhj;Jf;fs; mjpy;
FoapUg;gth;fSf;F gl;lh tH';fg;gLk;/ jhth brhj;J
muRg; g[wk;nghf;F vd;gJ cz;ik/ muR g[wk;nghf;fpy;
FoapUg;gpy;yhjth;fSf;F nkw;go brd;id cau;ePjpkd;w tHf;fpd; jPh;g;gpd;go murh';fk; assignment tH';Fk; jhth brhj;jhdJ rh;ff ; hu; g[wk;nghf;F vd;W kl;Lk;
,y;yhky; mjw;Fk; nkyhf ghij vd;W
Fwpg;gplg;gl;Ls;sJ/ bghJthf fpuhk ej;jk; brhj;jpy;
gl;lh tH';Fgth;fSf;F me;j gl;lhtpy; ghij VnjDk;
me;j brhj;Jf;fis Rw;wpnah my;yJ me;j
brhj;jpnyh ,Ue;jhy; mjw;F ghjpg;g[ VnjDk; me;j
brhj;Jf;fis Rw;wpnah my;yJ me;j brhj;jpnyh
,Ue;jhy; mjw;F ghjpg;g[ Vw;glhky; me;j gl;lhtpid cgnahfg;gLj;jntz;Lk; vd;w tpjpKiwfspd; fPHj ; hd;
gl;lh tH';fg;gLk;/;* (Underlining and double underlining made by this Court to supply emphasis and for ease of reference.) 6/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021
7. Therefore, the arguments of plenary powers of Civil Court pales into insignificance. There is nothing to demonstrate that aforementioned factual findings returned by the trial court and confirmed by the first Appellate Court warranting interference much less interference in a legal drill under Section 100 CPC.
8. This takes us to the next argument of pleadings and burden of proof qua plaintiffs. A careful perusal of the plaint brings to light that there are pleadings with clarity and specificity by the plaintiffs and particularly in paragraphs 8 and 9 of the plaint, which read as follows:
'8. The plaintiffs submit that the plaintiffs and their ancestors have been maintaining, repairing and white washing their southern side ease west wall by using the suit common pathway apart from the light and air being enjoyed through the windows situate on the southern side east west wall of the plaintiffs houses.
9. The suit common path way has been specifically recited in the family partition of the plaintiffs and their fore fathers as early as 15.09.1961. So also in the natham resurvey proceedings, the suit common pathway has been specifically demarcated in R.S.No.601/10 in the year 1991, after due enquiry.'
9. Therefore, this argument of lack of pleading on the part of the plaintiff, in the considered view of this Court is a non-starter. This Court reminds itself of 7/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 the Hero Vinoth principle [Hero Vinoth (Minor) Vs. Seshammal reported in (2006) 5 SCC 545], which talks about exceptions where concurrent factual findings of Court below can be interfered with in a legal drill under Section 100 CPC. Relevant paragraph in Hero Vinoth is paragraph 24 and the same reads as follows:
'24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(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 8/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 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-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. '
10. Be that as it may, this Court also reminds itself of the Kanailal and Kirpa Ram principles being principles laid down by Hon'ble Supreme Court in Kanailal and Others Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715 and Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 9/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 SCC Online SC 935. Kanailal principle is to the effect that the principles of Order XLI Rule 31 CPC will stand telescoped into a legal drill under Section 100 CPC also and Kirpa Ram principle is to the effect that a second appeal can be dismissed at the admission stage without formulation of a substantial question of law, if none arises. On a conjoint and combined reading of these two principles, this Court deems it appropriate to set out that points that arise for consideration in the case on hand are
a) Whether the courts below have decreed the suit solely on the basis of revenue records?;
b) Whether there is lack of pleadings on the part of plaintiff?:; and
c) Whether any substantial question of law arises in the captioned second appeal?
11. Points for consideration 1 and 2 have already been discussed and dispositive reasoning have been set out supra. From the dispositive reasoning the two points for consideration have already been answered against the appellants i.e., points for consideration 1 and 2. With regard to the third point for consideration, the expression 'substantial question of law' occurring in Section 100 CPC has not been defined in CPC, but the same has been elucidatively explained in a long line of authorities starting from Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1959 Madras 969] to 10/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs reported in (2001) 3 SCC 179]. It will suffice to extract and reproduce paragraph 12 of Santosh Hazari case and the same reads as follows:
' 12. 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 considerable. 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 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. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 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 as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co.
Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution 11/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :
“[W]hen 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 facts of the case it would not be a substantial question of law.”and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
“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 12/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 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.”
12. If the principle governing elucidation of the expression 'substantial question of law' occurring in Section 100 CPC are applied to the case on hand, it comes to light that there is nothing debatable and no point that is res integra arises in the case on hand or no issue of settled principles being disregarded arises in the case on hand. Suffice to say that no substantial question of law much less, such a question which would impact the decision or rights of the parties if decided one way or the other arises in the case on hand.
13. Therefore, applying the Kirpa Ram principle, this Court deems it appropriate to dismiss captioned second appeal at the admission stage holding that no substantial question of law arises. Consequently, C.M.P. No.7488 of 2021 is also dismissed. Considering the nature of the case, the trajectory the matter has taken and the arguments projected before this Court, there shall be no order as to costs.
22.04.2021 Speaking order: Yes/No Index: Yes/No gpa To 13/15 https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021
1. The First Additional District Munsif Court Bhavani
2. The Sub Court, Bhavani.14/15
https://www.mhc.tn.gov.in/judis/ S.A.No.396 of 2021 M.SUNDAR.J., gpa S.A.No.396 of 2021 & C.M.P.No.7488 of 2021 22.04.2021 15/15 https://www.mhc.tn.gov.in/judis/