Madras High Court
M.Vadivel vs Arulmughu Iravatheeswarar Koil on 22 April, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.04.2014 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM S.A(MD)No.914 of 2013 and M.P(MD)No.1 of 2013 M.Vadivel ... Appellant Vs. Arulmughu Iravatheeswarar Koil Attached to Palace Devasthanam, Tharasuram, Thanjavur, through its Hereditary Trustee, Sivaji Raja Boneslay, S/o.Balaji Raja Boneslay, Thanjavur District. ... Respondent Prayer Appeal filed under Section 100 of the Civil Procedure Code, against the decree and judgment dated 25.07.2011 made in A.S.No.115 of 2008 on the file of the Principal Subordinate Judge, Kumbakonam, confirming the judgment and decree dated 25.04.2005 made in O.S.No.158 of 2002 on the file of the Additional District Munsif, Valangaiman at Kumbakonam. !For Appellant : Ms.N.Krishnaveni ^For Respondent : Mr.V.Chandrasekar :JUDGMENT
In first and foremost, I wish to quote the observation of the Hon'ble Supreme Court in Gurdev Kaur vs. Kaki, which would run thus:-
"Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos. Indiscriminate and frequent interference under Section 100 C.P.C. in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to colossal delay in the administration of justice in civil cases in our country."
The unsuccessful defendant in both the courts below laid this appeal against the concurrent judgments of the courts below.
2. The respondent filed the suit in O.S.No.158 of 2002 before the District Munsif Court, Kumbakonam, for mandatory injunction and permanent injunction, restraining the defendant, their men and agent from putting up any permanent construction in the suit property.
For the sake of convenience, the parties are referred to as per their litigative status before the trial court.
3. The case of the plaintiff is that the suit property belongs to the plaintiff temple and one Mrs.Thayarammal was the tenant of the property on a rent of Rs.3/- per month. The suit property was leased out to the said Thayarammal for putting up temporary shed, but subsequently the defendant without any right and permission of the plaintiff had removed the temporary shed and put up pucca RCC building. The further case of the plaintiff is that the plaintiff had requested the defendant to restore the suit property to the original position and the plaintiff also lodged a police complaint and it was not responded. Hence, the suit.
4. The defendant resisted the suit by filing a written statement admitting that the plaintiff temple is the owner of the land, but contended the original lessee Thayarammal was the permanent tenant of the property; that the suit property was leased out on permanent lease permitting the tenant to put up pucca building. The defendant had contended that the said Thayarammal had transferred her leasehold right in favour of the defendant and as such, he has been in possession and enjoyment of the property.
5. It is further contended that in the year 1992, his vendor had constructed a pucca building by obtaining planning permission from Tharasuram Town Panchayat and in the month of June 2000, he started construction of the first floor of the building. It is further contended that due to misunderstanding between the plaintiff and the defendant, the suit was filed. It was the further case of the defendant that he need not seek any permission from the plaintiff to put up pucca building. Hence, he prayed for dismissal of the suit.
6. The learned Additional District Munsif, Kumbakonam, framed necessary issues and during the trial, the plaintiff examined one Shankar as PW1 and marked Exs.A1 to A7. On the side of the defendant, DW1 to DW5 were examined and Exs.P1 to P39 were marked. The report of the Advocate Commissioner and plan were marked as Exs.C1 to C3.
7. The learned Additional District Munsif after considering the oral and documentary evidence of the parties had come to the conclusion that the plaintiff is entitled for the relief of mandatory injunction and permanent injunction and accordingly decreed the suit. Aggrieved by the judgment and decree, the defendant filed an appeal in A.S.No.115 of 2008 before the Principal Sub Court, Kumbakonam. Learned appellate Judge confirming the finding of the trial court, dismissed the appeal. Aggrieved by the concurrent finding of both the courts, the defendant has filed the present appeal.
8. Heard Ms.N.Krishnaveni, learned counsel for the appellant and Mr.V.Chandrasekar, learned counsel for the respondent.
9. Ms.N.Krishnaveni, learned counsel for the appellant submitted that the temple is the owner of the land and Mrs.Thayarammal was the original lessee of the suit property; that one Papiyammal inherited the right from the said Thayarammal and she obtained a planning permission from the local municipality in the year 1992, which has been marked as Exs.P17 and P18 according to which, construction was made in the suit property in the year 1992 itself.
10. Learned counsel further submitted that only in the year 2000, the defendant wanted to put up first floor of the building and only at that time, due to difference of opinion between the plaintiff and the defendant, the suit was filed. Learned counsel further submitted that the ground floor of the building was constructed in the year 1992, but the plaintiff chose to file the suit only in the year 2002 and therefore, the suit is liable to be dismissed on the ground of laches and also barred by limitation.
11. Learned counsel further submitted that the plaintiff temple owns larger extent of land, and leased out to other tenants also, who have put up pucca building and they are enjoying the properties. It is further submitted that description of the property is very vague and even if a decree for mandatory injunction is granted, it cannot be executed. In support of his contention, learned counsel has relied upon the judgments in 2012 (1) L.W 248 and 2006 (1) MLJ 710.
12. Per contra, Mr.V.Chandrasekar, learned counsel for the respondent submitted that the defendant is not the lessee of the property in dispute and possession and enjoyment of the property claimed by the defendant is an unlawful one; that even though the local municipality is said to have approved the plan in the year 1992, there is absolutely no material to show that the defendant had put up construction as per the approved plan in the year 1992. Had the defendant really put up construction in the year 1992, as contended, the property building would have been assessed by the local municipality and the defendant would have paid property tax from 1992, but no iota of evidence had been produced to prove the same.
13. Learned counsel for the respondent further submitted that the property has been properly described and there is no ambiguity. It is further submitted that the suit was filed in time and it cannot be said that the suit is barred by limitation. Learned counsel further submitted that there is no question of law arises for consideration before this Court and both the courts have concurrently found on facts that the plaintiff is entitled for the relief of mandatory injunction and permanent injunction. For the above said reasons, he prayed for dismissal of the appeal.
14. Before going to traverse on the merits of this appeal, I deem it is necessary to have a cursory look on the aspect of the power of the High Court under Section 100 of the Civil Procedure Code to interfere with the concurrent findings:-
(i) In Addagada Raghavamma vs. Addagada Chenchamma, 1964 AIR 136 = 1964 SCR (2) 933, the Hon'ble Supreme Court has held as follows:-
?This Court has the power to review the concurrent findings of fact arrived at by the lower courts in appropriate cases. But this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such as "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave-, injustice has been done''. It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. The present case is not one of those exceptional cases where a departure from the salutary practice adopted by this Court is justified.?
?His next objection is that both the learned Subordinate Judge and, on appeal, the learned judges of the High Court gave concurrent findings of fact on adoption as well as on partition and it is the usual practice of this Court not to interfere with such findings, except in exceptional circumstances and there are no such circumstances in the present case, Article 133 of the Constitution does not in any way limit the scope of an appeal, provided a proper and valid certificate is issued by the High Court thereunder. This Court has undoubtedly the power to review the concurrent findings of fact arrived at by the lower Courts in appropriate cases. But it has been a long standing practice of the Privy Council not to interfere with such findings based upon relevant evidence, except under extraordinary and exceptional circumstances : Vide Rani v. Khagendrar (1); Fatima Bibi v. Ahmed Bakshi(2), Harendra v. Haridasi (3); and Bibhabati v. Ramendra (4); The same practice has been adopted and followed by this Court since its inception : see Nanalal v. Bombay Life , Assurance Co. (5): Firm Srinivas Ram v. Mahabir Prasad (6) Trojan & Co. v. Naganna (7); Rajinder Chand v. Mst. Sukhi (8); Bhikka v. Charan Singh (9); M.M.B. Catholicos v. P. Paulo Avira (10) and Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinanyak Gosavi (11). The reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate court of appeal. Whatever may be the reason for the rule, the practice has become fairly crystallized and this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done." It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have heard learned counsel on merits and we do not think it is one of those exceptional cases where we should depart from the salutary practice adopted by this Court.
(ii) Despite repeated declarations of law in numerous judgments of this Court and the Privy Council for over a century, the Hon'ble Supreme Court while adjudicating the case in Gurdev Kaur vs. Kaki (Appeal (civil) 2083 of 2006 dated 18/04/2006) had expressed its deep anguish that still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. Therefore, the Hon'ble Apex Court in the aftersaid judgment again making a serious endeavour to discern legislative intention, ambit and scope of interference under Section 100 C.P.C., planned to carry out this exercise by critically examining important judgments decided before and after 1976 amendment in the Section 100 C.P.C., with the fond hope that in future the High Courts would decide the appeal, according to the scope of Section 100 C.P.C. and the Hon'ble Supreme Court may not be compelled to interfere with the judgments delivered under Section 100 C.P.C. The Hon'ble Apex Court in the above case, before canvassing important judgments thought it fit to extract Section 100 of the Civil Procedure Code, in order to give clear interpretation. At this juncture, it is highly important to extract some passage of the aforesaid judgment:- "100. Second appeal.
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Cases decided after 1976 amendment In Bholaram v. Amirchand (1981) 2 SCC 414 a three- Judge Bench of this Court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law. In Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], a three judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The Court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.
This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471. The Court stated that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of the such duly framed substantial questions of law.
A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed. In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35 the Court has observed that it is mandatory to formulate the substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside. In Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the Court reiterated the statement of law that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law. These judgments have been referred to in the later judgment of K. Raj and Anr. v. Muthamma (2001) 6 SCC 279. A statement of law has been reiterated regarding the scope and interference of the Court in second appeal under Section 100 of the Code of Civil Procedure.
Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge Bench of this Court correctly delineated the scope of Section 100 C.P.C.. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court 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 of Article 133(1) (a) of the Constitution.
In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.
In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], this Court has held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower Appellate Court. This Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
This Court again reminded the High Court in Commissioner, Hindu Religious & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. Again, this Court in the case of State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.
Again, in the case of Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553], this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.
Again, in the case of Harjeet Singh v. Amrik Singh [(2005) 12 SCC 270], this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the Trial Court and the lower Appellate Court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 C.P.C.. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the Courts below.
In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6.2.2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside.
Legislative Background in the 54th Report of the Law Commission of India submitted in 1973 The comprehensive 54th Report of the Law Commission of India submitted to the Government of India in 1973 gives historical background regarding ambit and scope of Section 100 C.P.C.. According to the said report, any rational system of administration of civil law should recognize that litigation in civil cases should have two hearings on facts one by the Trial Court and one by the Court of Appeal.
In the 54th Report of the Law Commission of India, it is incorporated that it may be permissible to point out that a search for absolute truth in the administration of justice, however, laudable, must in the very nature of things be put under some reasonable restraint. In other words, a search for truth has to be reconciled with the doctrine of finality. In judicial hierarchy finality is absolutely important because that gives certainty to the law. Even in the interest of litigants themselves it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by the lower courts and the matter should be allowed to rest where it lies without any further appeal. This may be somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is in the light of this basic approach that we will now proceed to consider some of the cases which were decided more than a century ago. The question could perhaps be asked, why the litigant who wishes to have justice from the highest Court of the State should be denied the opportunity to do so, at least where there is a flaw in the conclusion on facts reached by the trial Court or by the Court of first appeal. The answer is obvious that even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury. The rational behind allowing a second appeal on a question of law is, that there ought to be some tribunal having jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on questions of law.
It may be relevant to recall the statement of Douglas Payne on "Appeals on Questions of Fact" reported in (1958) Current Legal Problem 181. He observed that the real justification for appeals on questions of this sort is not so much that the law laid down by the appeal court is likely to be superior to that laid down by a lower court as that there should be a final rule laid down which binds all future courts and so facilitates the prediction of the law. In such a case the individual litigants are sacrificed, with some justification, on the altar of law-making and must find such consolation as they can in the monument of a leading case.
Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question.
The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100. The High Court seriously erred in interfering with the findings of facts arrived at by the Trial Court and affirmed by the first Appellate Court.
(iii) In G.Mahalingappa vs G.M. Savitha (Appeal (civil) 2867 of 2000 dated 09.08.2005), the Hon'ble Apex Court has held as follows:-
"Let us now consider whether the concurrent findings of fact could be set aside by the High Court in the second appeal. It is well settled by diverse decisions of this Court that the High Court in second appeal is entitled to interfere with the concurrent findings of fact if the said concurrent findings of fact are based on non- consideration of an important piece of evidence in the nature of admission of one of the party to the suit, which is overlooked by the two courts below ( See [2003 (7) SCC 481, Deva (Dead) Through LRs Vs. Sajjan Kumar (Dead) by LRs] ). It is equally well settled that under section 100 of the Code of Civil Procedure, High Court cannot interfere with concurrent findings of facts of the courts below without insufficient and just reasons. (See [2003(7)SCC 52, Sayeda Akhtar Vs. Abdul Ahad]). In second appeal, High Court is also not entitled to set aside concurrent findings of fact by giving its own findings contrary to the evidence on record. (See [ 2001 (4) SCC 694, Saraswathi & Anr. Vs. S.Ganapathy & Anr.]).
As held herein earlier the High Court had set aside the concurrent findings of fact not on consideration of the evidence adduced by the parties but set aside the concurrent findings of fact on the basis of findings contrary to the evidence on record and without considering the findings of fact arrived at by the appellate court and the trial court. From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See [2002(9) SCC 735, Gangajal Kunwar (Smt.) and Ors. Vs. Sarju Pandey (Dead) by LRs & Ors.] ). It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning. We ourselves considered the evidence on record as well as the findings of fact arrived at by the two courts below. From such consideration we do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of the parties. We are therefore of the view that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the appellate court as well as the trial court which findings were rendered on consideration of the pleadings as well as the material ( oral and documentary ) evidence on record.
(iv) In Narayanan Rajendran vs. Lekshmy Sarojini (Civil Appeal No.742 of 2001 dated 12.02.2009), the Hon'ble Mr.Justice Dalveer Bhandari, while reversing the judgment of the High Court of Kerala setting aside the concurrent finding of facts, has observed that even though in In Gurdev Kaur and Others v. Kaki and Others (2007) 1 SCC 546 (in which I was a party to that judgment) the Supreme Court crystallized the entire legal position but unfortunately even thereafter in the number of cases it has come to our notice that the law declared by this court is not followed in a large number of cases by the High Courts. Therefore, once again making a serious endeavour to recapitulate the legal position with the fond hope that the High Courts would keep in mind the legal position before interfering in a case of concurrent findings of facts arrived at by the trial court and upheld by the first appellate court, the Apex Court has extracted various judgments in this regard and held as follows:-
71. It is a matter of common experience in this court that despite clear enunciation of law in a catena of cases of this court, a large number of cases are brought to our notice where the High Court under section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this court is compelled to interfere in a large number of cases decided by the High Courts under section 100 CPC. Eventually this court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial question of law.
Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.
72. We have once again undertaken this exercise and tried to crystallize the legislative intention by referring to a number of cases decided by this court with the hope that now the High Courts would refrain from interfering with the concurrent findings of fact without formulating substantial question of law.
73. In this view of the clear legal position which emerges by the legislative intention and ratio of the judgments of aforementioned cases, the impugned judgment of the High Court is wholly unsustainable in law and is accordingly set aside and consequently the findings of the trial court as upheld by the first appellate court are restored.
(v) In Mithilesh Kumari vs. Prem Behari Khare, 1989 AIR 1247 = 1989 SCR (1) 621, the Hon'ble Supreme Court has held as follows:-
The first question, therefore, is whether or not to interfere with the concurrent findings of fact of the learned courts below. It has been said in a series of decisions that ordinarily this court in an appeal will not interfere with a finding of fact which is not shown to be perverse or based on no evidence, (Babu v. Dy. Director, A.I.R. 1982 S.C. 756), but will interfere if material circumstances are ignored by the High Court. Prasad v. Govin- daswaray, A.I.R. 1982 S.C. 84. In Dhanjibhai v. State of Gujarat, A.I.R. 1985 S.C. 603 it was observed that where a finding of fact has been rendered by a learned Single Judge of the High Court as a court of first instance and thereafter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so. There is no reason why this should not apply to cases where the first appellate court was the district court. It was noted in Ganga Bishan v. Jay Narayan, A.I.R. 1986 S.C. 441 that ordinarily this Court, under Article 136 of the Constitution, would be averse to interfere with concurrent findings of fact recorded by the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not decline to interfere merely on the ground that findings in question are findings on fact. So also, in Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367 it was said that in an appeal by special leave under Article 136 of the Constitution of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified. In Ram Singh v. Ajay Chawla, A.I.R. 1988 S.C. 514 where the concurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this court did not interfere with the concurrent findings of fact.
(vi) In Tmt.R.Swarnavalli vs H.H.The Prince Of Arcot (S.A.No.1493 of 2008, dated 16.03.2009), a learned single Judge of this court has held as follows:-
9. At this juncture my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it would run thus:-
"17. 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. 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 of fact. ...
21. ... However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing 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 case 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 case, 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 question was of applying those principles to the particular 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 case, 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 call 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."
23. 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. ... 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."
15. Reverting back to the case on hand, it is not in dispute that the land belongs to the plaintiff temple and the original tenant was one Mrs.Thayarammal. The main bone of contention of the plaintiff is that the defendant had put up permanent construction without the permission of the plaintiff. However, the defendant resisted the suit, contending that the plaintiff had leased out the vacant land on permanent basis and the construction was made in the year 1992. During trial, the defendant had given evidence stating that the original tenant Mrs.Thayarammal had sold the right to Arumugathammal, who in turn sold her right to Mr.Thangaraj and the said Thangaraj sold his right to one Papiyammal. Ex.B1 shows the sale by Thangaraj in favour of Papiyammal and Ex.B2 proves that Arumugathammal sold the property in favour of Thangaraj. Both Exs.B1 and B2 are to the effect that on the date of sale, only thatched shed was existing in the suit property. Further, there is no reference in both the documents that the lease was permanent one. Curiously, the defendant did not produce the sale deed effected in his favour.
16. The defendant has given evidence stating that he purchased the property in the year 2000 with an existing ground floor in the suit property and he put up construction in the first floor, which is in unfinished stage. Ex.B17 shows that Papiyammal had obtained permission from Tharasuram Panchayat for construction of RCC building. Ex.B18 is the approved plan. On the basis of Exs.B17 and B18, the defendant claimed that the ground floor of the building was constructed in the year 1992. Exs.B19, B20, B24, B26 and B28 are property tax receipts and other receipts in respect of the suit property relating to the year 2000 to 2004. Ex.C1-report of the Advocate Commissioner would show that plastering work for the ground floor and the first floor was not completed and the building was not whitewashed. But the Advocate Commissioner has stated in his report that in the ground floor, the defendant is running a hotel and oven peat and dust deposited in the wall and the wall looked like old.
17. DW1 had given evidence stating that he had seen the lease agreement executed in favour of Mrs.Thayarammal, but he was not aware of the lease deed executed in favour of Arumugathammal and Thangaraj. He has further deposed that the tenant Papiyammal while selling the property, had given the lease deed and he is in possession of the document. However, DW1 did not produce the lease deed, but admitted in cross-examination that he did not obtain permission from the temple to put up construction. DW1 has stated that he was not aware of the lease deed. The learned Additional District Munsif relying upon Exs.B1, B2, B28, Ex.A4, has held that the defendant has not established his case of permanent lease. The defendant has relied on Exs.B3 to B16 to show that other lessees have put up permanent construction in the property of the plaintiff temple.
18. The trial court had considered the oral evidence as well as Ex.B3 to B16 and held that the evidence has not established the permanent lease in favour of the defendant. DW4 is an official from Tharasuram Panchayat. He produced Exs.B29 to B39 and stated that the defendant and other lessees have obtained planning permission without disclosing that the land belongs to the plaintiff temple. The evidence of DW4 would also show that the plaintiff temple has not given permission for putting up pucca building in the property in question. DW5 is the Village Administrative Officer of Tharasuram Village and he has given evidence stating that the land is belonging to the plaintiff temple, but he was not aware, who has put up construction in the land of the plaintiff. DW3 has purchased the property through Exs.B12 and B13 and has been running a hotel in the land belonging to the plaintiff Devasthanam. DW3 has admitted in his evidence that the plaintiff has initiated action against him for violation of lease agreement.
19. The trial court after considering the oral evidence of DWs 2 to 4 and Exs.B27, Exs.C1 to C3 has held that the defendant has not established his claim that he can put up permanent construction without the permission of the plaintiff Devasthanam. The learned trial Judge has held that as per Section 108 of the Transfer of Property Act, the lessee cannot put up permanent structure without permission of the landlord. Upon evaluation of entire evidence, the trial court has disbelieved the case of the defendant that the ground floor of the building was constructed in the year 1992 and decreed the suit. The learned appellate judge also considering the oral and documentary evidence of the plaintiff as well as the defendant, dismissed the appeal.
20. At this juncture, I would like to quote some decisions as regards construction of permanent structures in violation of Section 108(p) of the Transfer of Property Act:-
(i) In Kurian And Anr. vs Job And Ors, AIR 1975 Ker 175, the Kerala High Court while concurring with the judgment and decree of the trial court therein, granting mandatory injunction and permanent injunction, has considered the judgment of the Andhra Pradesh High Court in Punnam Satyanarayana v. Vegosina Narayana Raju (1964) 1 An. W.R. 337. The relevant observation would run thus:-
"The provisions of Section 108 (p) imports a negative covenant and the law is well settled that "In the case of a negative covenant or stipulation the Court will in general enforce compliance by injunction without regard to the question of convenience or the amount of damage caused." (Halsbury's Laws of England, Volume 21, 3rd Edition, paragraph 744). The following passage from the speech of Lord Cairns L. C. in Dohorty v. Allman, (1878) 3 AC 709, is worth reading : "If parties, for valuable consideration with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say by way of injunction, that which the parties have already said by way of covenant that the thing shall not be done, and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties."
(ii) In Venkatlal G. Pittie vs. Bright Bros. (Pvt.) Ltd., 1987 AIR 1939 = 1987 SCR (3) 593, upholding the judgment rendered by the Special Bench of Calcutta High Court in Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar & Ors., A.I.R. 1964 Calcutta 1, the Hon'ble Supreme Court has held as follows:-
"No hard and fast rule can be laid down for determining the question whether a particular structure put up by the tenant is a permanent structure for the purpose of cl. (p) of s. 108 of the Transfer of Property Act. 1882 as it is dependent on the facts of each case. One must look to the nature of the structure, the purpose for which it was intended and take a whole perspective as to how it affects the enjoyment, the durability of the building, etc. and other relevant factors and come to a conclusion."
(iii) In S. Gnanasundaram vs S. Viswanatha Iyer (1999) 1 MLJ 516, a learned single Judge of this Court Hon'ble Mr.Justice E.Padmanabhan, (as he then was) by critically examining the judgment rendered by the Andhra Pradesh High Court in Punnam Satyanarayana v. Vegosina Narayana Raju (1964) 1 An. W.R. 337, has expressed his view, which would run thus:-
"Attention of the court was drawn to a decision of the Andhra Pradesh High Court reported in Punnam Satyanarayana v. Vegosina Narayana Raju (1964) 1 An. W.R. 337, where a tenant constructed among other things two brick walls in the leasehold land and the landlord brought a suit seeking for the removal. A learned Judge of the Andhra Pradesh High Court refused the injunction holding thus: As the defendant has been found to be a lessee of the plaintiff, I do not think the mandatory injunction for demolition of the walls should be issued. It is not shown that the erection of these walls constituted an act of waste; nor is it shown that it will not be possible for the defendant when his lease terminates or when he is evicted, to restore the property to the plaintiff in the same condition in which it was taken by him on lease from the plaintiff. The decision does not consider whether the act of the tenant was in violation of any covenant of the lease or whether the structure was a permanent one and it also makes no reference to Section 108(p) or to any of the earlier decisions bearing on the question. If the decision can be constructed as covering the point in the present case I do not find it possible, with great respect, to agree that for breach of the term of a lease prohibiting the construction of a permanent structure either in itself or by virtue of Clause (p) of Section 108, a mandatory injunction should not issue or that it could issue only where the tenant is unable to restore the property to the landlord in the same condition in which it was taken by him at the time of the lease. In my view, there is no reason why the landlord's right under Section 108(p) should be abridged in this manner or the tenant should be licensed to commit breach of the covenant. The tenant's duty in this respect, is correlated to the landlord's right and the breach of that duty clearly gives the landlord an enforceable right. I find no principles to suspend that right till the time he evicts the tenant. "
(iv) In Purushottam Das Bangur & Ors vs. Dayanand Gupta (Civil Appeal No.7710 of 2012 dated 31.10.2012), the Hon'ble Supreme Court after referring to the judgment in Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt. Ltd. (1987) 3 SCC 558, and the Special Bench judgment of the Calcutta High Court in Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1, has held as follows:-
14. In Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt. Ltd. (1987) 3 SCC 558, the landlord alleged that the tenant had without his consent raised a permanent structure in the demised premises. The trial Court as also the first appellate Court had taken the view that the construction raised by the tenant was permanent in nature. The High Court, however, reversed the said finding aggrieved whereof the landlord came up to this Court in appeal. This Court referred to several decisions on the subject including a decision of the High Court of Calcutta in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 to hold that one shall have to look at the nature of the structure, the purpose for which it was intended to be used and take a whole perspective as to how it affects the enjoyment and durability of the building etc. to come to a conclusion whether or not the same was a permanent structure. This Court approved the view taken in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 and Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1, while referring to the following tests formulated by Malvankar J. in an unreported decision in Special Civil Application No.121 of 1968:
(1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) The purpose of erecting the structure is another relevant factor. (6) The nature of the materials used for the structure and (7) lastly the durability of the structure.
15. In Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1 a Special Bench of the High Court of Calcutta was examining the meaning of the expression permanent structure appearing in Clause (p) of Section 108 of the Transfer of Property Act, 1882. The Court held that whether a particular structure is a permanent structure or not is a question that depends on the facts of each case and on the nature and extent of the particular structure as also the intention and purpose for which the structure was erected. No hard and fast rule, declared the Court, could be laid down for determining what would be a permanent structure for the purposes of Section 108 (p) of the Transfer of Property Act. When the very same case came up for final adjudication on merits before a Division Bench of the High Court of Calcutta, the High Court in its order dated 20th March, 1964 reported in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 held that the expression 'permanent structure' did not mean 'everlasting'. The word 'permanent' had been used to distinguish it from 'temporary' and that while a lessee has the power to raise any type of temporary structure, he has no power to raise a permanent structure. The Court held that on a true construction of Section 108 (p) Transfer of Property Act the words 'permanent structure' could only mean a structure that lasts till the end of the term of the lease and does not mean 'everlasting' nor does it mean a structure which would last 100 years or 50 years. The Court observed:
In all these cases condition 108(p) will operate. The phrase 'permanent structure' does not mean 'ever lasting'. But the word 'permanent' has been used to distinguish it from 'temporary'. A lessee has the power to raise any type of temporary structure, but he has no power to raise a permanent structure. The word 'permanent' is also a relative term, because the absolute meaning of the word 'permanent' is 'ever lasting'. But we cannot accept the meaning if the word 'permanent' is a relative term, the question is, - relative of what? The answer immediately is for purposes of Section 108(p) relative to the term of the issue. Therefore, the word 'permanent' means which lasts till the end of the term of the 'lease' and does not mean 'ever lasting' nor does it mean which would last 100 years or 50 years. The term, as stated above, is a relative one and the relation here is to the period of the lease. There may be a lease from month to month or from year to year and we do not know when the lease is going to terminate. But the meaning of the words 'permanent structure' would be that the lessee intended that he would enjoy the structure that he raises as long as he be continuing in possession. That period may be definite, that period may be indefinite. But that period is the period of the lease and the person, namely, the lessee, who constructs the structure, should have an intention to use it as long as he remains a lessee.
16. Applying the above to the case before it, the High Court held that the tenant in that case had constructed a kitchen which he intended to use till the time he remained in occupation. The Court found that the case before it was not one where the tenant had constructed the structure for a special purpose like a marriage in the family. Any structure which was used for any such limited period or definite event, function or occasion, even if made of bricks and mortar would not amount to building or erecting a permanent structure. The Court observed:
To sum up, no hard and fast rule can be prescribed for determining what is permanent or what is not. The use of the word 'permanent' in Section 108 (p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term 'permanent' does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly the purpose for which the structure is intended is also an important factor that cannot be ignored.
21. As rightly held by the trial court and in the light of the above decisions, the defendant can not put up permanent structure in the suit property without the permission of the landlord. Both the trial court as well as the appellate court have concurrently given a factual finding that the defendant had put up construction only in the year 2000 and construction was not even completed on the date of filing of the suit. The main contention of the appellant that the ground floor was constructed in the year 1992 and the suit filed in the year 2000 is barred by limitation was not established.
22. Learned counsel for the appellant has relied upon the judgment in Subramanian and others vs. Ponnusamy and others, 2006 (1) MLJ 710. In that case, the suit was filed for mandatory injunction stating that the defendant had put up hookstones in the property of the plaintiff. The defendant in that suit contended that hook stoneswere put up about 26 years ago and therefore, the plaintiff is not entitled for the relief of mandatory injunction. In that case, it was established that hookstones were put up long ago and on those facts, this Court has held that the plaintiff is not entitled for the relief of mandatory injunction and awarded compensation.
23. The another judgment relied on by the learned counsel for the appellant in R.S.Muthuswami Gounder vs. A.Annamalai and others, AIR 1981 Madras 220, a suit was filed for recovery of possession and for mandatory injunction. While the defendant in that case had put up construction, the plaintiff, who was residing in a nearby place did not question the defendant till he had completed his construction and sent a notice about 7 or 8 months later asserting his rights to the suit property. In such fact situation, this court applied the principles of acquiescence and ordered compensation to the plaintiff.
24. In A/M Kothandaramasamy Koil Thrupuvanam vs. Vairam and others, 2012 (1) L.W. 248, the plaintiff filed the suit for mandatory injunction, but in the description, there was no specifications about the breadth and length of the construction and survey numbers were also not given. This Court having come to the conclusion that no proper description has been given with regard to the identity of the construction alleged to have been put up by the defendants, held that the plaintiff in that case is not entitled for the relief of mandatory injunction.
I am of the considered opinion that the above judgments are not applicable to the facts of this case.
25. In the case on hand, both the courts on the basis of the evidence have concurrently held that the plaintiff is entitled for permanent injunction as well as mandatory injunction. Keeping in mind the principles laid down by the Hon'ble Apex Court with regard to interference in concurrent finding on disputed facts under Section 100 of the Civil Procedure Code, I am of the view that there is no substantial question of law arises for consideration in this appeal, hence it is liable to be dismissed. Accordingly, the Second Appeal is dismissed. Consequently, M.P(MD)No.1 of 2013 is closed. No costs.
22.04.2014 Index : Yes Internet : Yes To
1)Principal Subordinate Judge, Kumbakonam.
2)Additional District Munsif, Valangaiman at Kumbakonam.
K.KALYANASUNDARAM, J.
NB2 S.A(MD)No.914 of 2013 and M.P(MD)No.1 of 2013 22.04.2014