Madras High Court
H.Nazeer Ali vs Noor Mohammed Nachiyar on 16 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.343 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.343 of 2021
and
C.M.P.No. 6543 of 2021
in
S.A.No.343 of 2021
H.Nazeer Ali
S/o.E.M.Haneefa .. Appellant
Vs.
1. Noor Mohammed Nachiyar
W/o.M.K.Mohammed Salik
Rep. by her Power Agent
A.K.Mohammed Rashid
2. A.K.Mohammed Rashid
S/o.Moideen Abdul Kader Nagutha .. Respondents
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 29.10.2020 in A.S.No.37 of 2015 on the file of the Court of
Subordinate Judge at Nagapattinam reversing the judgment and decree dated
12.08.2015 in O.S.No.281 of 2007 on the file of the Court of District Munsif
at Nagapattinam
For Appellant : Ms.R.T.Shyamala
----
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S.A.No.343 of 2021
JUDGMENT
Ms.R.T.Shyamala, learned counsel for sole appellant in captioned main Second Appeal i.e., S.A.No.343 of 2021 and for petitioner in captioned CMP i.e., C.M.P.No.6543 of 2021 is before me in this Virtual Court.
2. Captioned Second Appeal is under Section 100 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity].
3. This litigation commenced more than 13 years ago, to be precise on 17.09.2007 when a plaint was presented by appellant herein in the 'District Munsif's Court at Nagapattinam' [hereinafter 'trial Court' for the sake of convenience and clarity] with prayers inter-alia for injunction qua possession qua suit property. There is also a prayer for mandatory injunction to remove certain construction materials stacked in a piece of land lying on the Southern side of suit property and this piece of land on the Southern side of suit property in which according to plaintiff construction materials have been stacked has been described as 'B' Schedule. The suit property, according to plaint placed before me is a vacant site. This Court, for the purpose of 2/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 better appreciation of this judgment deems it appropriate to extract and reproduce entire plaint schedule and the same reads as follows:
brhj;J tpguk;
' ehfg;gl;odk; gjpt[ khtl;lk;. ehTh; rhh;gjptfk;. ehfg;gl;odk; jhYfh. ehTh; gg;spf; MgP!; nuhL. fPH;rufpy; nuhl;Lf;F fpHf;F ,/vk;/mdpgh tPlL ; f;Fk;. bfhy;iyf;Fk;
nkw;F. Kd;g[ nfhtpe;jrhkp gps;is tPlL
; f;Fk;.
bfhy;iyf;Fk; jw;nghJ 1k; gpujpthjp fpuak; bgw;Ws;s g[y vz;/1842y; mike;Js;s ,lj;Jf;F tlf;F uhkrhkp eha[L iu!; kpy;Yf;F bjw;F ,e;j ehd;bfy;iyf;Fl;gl;ll ehTh; Kdprpgy; thh;L 5. gpshf; 21. efu g[y vz;/1841y; 1899 r/mo fhypkid. fPH;nky; 110 mo. bjd;tly; 16 mo. mjpYs;s fUnty ku';fs; cs;gl/ gp broa{y;
nkny fz;l jhth brhj;jpd; bjd;gw[ k; mjhtJ g[y vz;/1841y; bjd;g[wk; 19/4f;F 1/5 Mf 14/55 r/kP/ (my;yJ) 156 rJuo Mizah; mwpf;ifapy; Fwpg;gpll; go (mjpYs;s fl;Lkhd';fs; mfw;wpl braYWj;Jf; fl;lisf;F) (,/k/vz;/286-2010y; fle;j 17/06/2010 njjpapll;
cj;jutpd;go nrh;f;fg;gl;llJ)/' (Underlining made by this Court for ease of reference) 3/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021
4. Therefore, it is clear that the suit property is a vacant site as mentioned supra. After full contest, trial Court, in and by judgment and decree dated 12.08.2015 decreed the suit. Defendants in the suit carried the matter in appeal by way of regular first appeal under Section 96 of CPC to the 'Subordinate Judge's Court at Nagapattinam' [hereinafter 'First Appellate Court' for the sake of convenience and clarity] vide A.S.No.37 of 2015. First Appellate Court, after full contest which included recording further evidence, allowed the appeal on 29.10.2020.
5. It may not be necessary to dilate much on facts as the suit in the trial Court for all practical purposes is one for bare injunction qua possession qua suit property which is a vacant site.
6. In a suit for bare injunction of this nature, primary and pivotal point for consideration is whether plaintiff was in possession of suit property on the date of filing of suit. To be noted, as already alluded to supra, suit was presented on 17.09.2007 in trial Court in this case. 4/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021
7. Further more, with regard to possession qua vacant site, cardinal legal principle is possession follows title. In this backdrop, the reasons based on which First Appellate Court allowed the appeal has been very succinctly captured and articulated in Paragraph No.15 of the judgment of the First Appellate Court, which reads as follows:
''15/ Mfnt. tprhuiz ePjpkd;wk; th/rh/M/1 kw;Wk;
ePjpkd;w Mizah; mwpf;if Mfpatw;iw rhpahf ghprPyid bra;ahky; thjpf;F th/r/M/1d; mog;gilapy; vt;tst[ tp!;jPuzKila brhj;J thjpf;F ghj;jpakhdJ vd;gij ghprPyid bra;ahky; thjp tHf;fpy; nfhhpa[s;s ghpfhuk; bgw chpika[ilath; vd;W jPh;g;gspj;Js;sJ Vw;Wf;bfhs;sf;Toajy;y vd;W ,e;ePjpkd;wk; Kot[ bra;J. nkny Twpa[s;s fhuz';fspd; mog;gilapy; jhth rh;nt vz;/1841y; fPH;nky; $hjpao 110. bjd;tly; $hjpao 16 mof;F cl;gl;ll 1760 rJuo ,lj;ij mDgtpj;J tUfpwhuh> my;yJ th/rh/M/1y; Fwpg;gplL ; s;s 1899 rJuoia mile;J mDgtpj;J tUfpwhuh> vd;gij Kot[ bra;J. jhth brhj;ijg; bghUj;J chpik tpsk;gi [ f bra;J. mjd; mog;gilapy; jhd; epue;ju cWj;Jf;fl;lis kw;Wk; braYWj;Jf; fl;lis ghpfhuk; bgw Koa[k; vd;W 5/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 ,e;ePjpkd;wk; Kot[ bra;J. thjp tHf;fpy; nfhhpa[s;s ghpfhuk; fpilf;ff;Toajy;y vd;W Kot[ bra;J gpur;rid vz;/4f;F tpil fhz;fpwJ/'
8. Notwithstanding very many averments in the memorandum of grounds of appeal and notwithstanding 3 questions being proposed in the memorandum of grounds of appeal (which according to memorandum are 'substantial questions of law'), learned counsel made focused submissions on proposed question No.2 which reads as follows:
'2) Whether the first appellate Court is right in reversing the judgment of the trial Court especially the defendants themselves admitted that they got possession of the encroached site “B” Schedule of the property by way of oral exchange from the plaintiff's mother some 30 years and thereby admitted that the same belonged to plaintiff's earlier, the burden of proof shifted upon the defendants to prove the oral exchange by evidence and they got possession of the same?'
9. Learned counsel submits that the above is the Substantial Question of Law (SQL) which arises in the case on hand.
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10. This Court now proceeds to examine the captioned Second Appeal for the purpose of admission as it is listed under cause list caption 'FOR ADMISSION' i.e., in the admission Board. Before embarking upon this exercise this Court deems it appropriate to remind itself about 2 relevant obtaining positions of law.
11. The first obtaining position of law turns on Kanailal case being Kanailal and Others Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715 and Kirpa Ram case being Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935. Kanailal principle is to the effect that the principles underlying Order XLI Rule 31 CPC have to be telescoped into a Section 100 CPC legal drill also. Kirpa Ram principle is to the effect that Court exercising jurisdiction under Section 100 CPC can dismiss a Second Appeal at the admission stage if no substantial question of law arises. This Court, on a conjoint reading of Kanailal and Kirpa Ram principles, is of the view that the point for determination in captioned Second Appeal is whether a substantial question of law, more particularly, question proposed by protagonist of Second Appeal 7/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 (extracted and reproduced supra) qualifies and arises as substantial question of law in the case on hand.
12. The second legal principle pertains to SQL. This expression SQL occurs in Section 100 of CPC, but it is not defined in CPC. Therefore, what exactly this expression means or in other words what are determinants and constituents of this expression was first explained in Rimmalapudi Subba Rao case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)]. This elucidation by a Hon'ble Full Bench of Madras High Court was affirmed by a Constitution Bench of Hon'ble Supreme Court in the celebrated Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314], (also known as Century Spinning Mills case). Relevant paragraph in Chunilal Mehta's case is Paragraph No.6 and the same reads as follows:
'6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test 8/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 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 if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.'
13. Rimmalapudi Subba Rao case on elucidation of constituents/determinants qua SQL, more particularly, SQL occurring in Section 100 of CPC and affirmation of the same by Constitution Bench of Hon'ble Supreme Court in Century Spinning Mills case has been neatly captured by Hon'ble Supreme Court in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179]. Relevant paragraph in Santosh Hazari case is Paragraph No.12 and the same reads as follows:
9/16
https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 '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 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 10/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 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 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.”'
14. This Court having remind itself of two cardinal principles, now proceeds to consider whether SQL arises in the case on hand. 11/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021
15. As already alluded to supra, the suit property is a vacant site and suit is for all practical purposes one for bare injunction qua possession qua suit property. In a suit for protecting possession of suit property, pivotal point (as already alluded to in this judgment) is whether plaintiff was in possession of suit property on the date of filing of suit. When the suit property is a vacant site, another cardinal principle is possession follows title. Therefore, plaintiff, on facts and circumstances of this case (considering the manner in which title is traced) has to necessarily demonstrate title to suit property and as a sequitur prove possession. Possession on the date of filing of suit has to necessarily be proved by plaintiff to succeed in a case of this nature. For better appreciation of these aspects of the matter, a rough sketch which forms part of the case file (part of trial Court proceedings) which has been placed before me is scanned and reproduced infra. 12/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 13/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021
16. To be noted, Survey No.1841 is the suit property. This takes us back to findings returned by First Appellate Court which have been extracted and reproduced supra and in the light of aforementioned settled legal principles, this Court is unable to persuade itself to believe that the First Appellate Court has gone wrong. On the contrary, First Appellate Court has taken a correct legal approach which is tune and tandem with the obtaining position of law. To be noted, First Appellate Court is a Court of fact and is the last Court of fact. With regard to question No.2 of memorandum of grounds of appeal which has been projected as SQL, it talks about shifting of burden but the burden never shifts. It is the onus which swings like a pendulum from one end of the lis to the other. A perusal of the First Appellate Court judgment also brings to light that it has not shifted the burden based on onus. Therefore, this Court is unable to persuade itself to believe that the above is question qualifies as SQL much less is this Court able to persuade itself to believe that this arises as a SQL on the facts, findings trajectory and arguments made in the captioned Second Appeal. Therefore, it follows as an inevitable sequitur that captioned Second Appeal cannot but be dismissed, as no substantial question of law arises. Captioned 14/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 Second Appeal dismissed at the admission stage holding that no substantial question of law arises. Though obvious, it is made clear that if plaintiff chooses to file a suit for declaration as observed by First Appellate Court (more particularly in Paragraph No.15 of judgement of First Appellate Court) the same will be tested on its own merits/in accordance with law uninfluenced, unimpeded and untrammelled by observations made in this judgment as they have been for the limited purpose of disposing of captioned Second Appeal and as this Court has not interfered with the judgment and decree of the First Appellate Court. Consequently, captioned CMP is also dismissed. Owing to the nature of matter and nature of submissions made before this Court, there shall be no order as to costs.
16.04.2021 Speaking/Non-speaking order Index : Yes / No Internet : Yes / No mk 15/16 https://www.mhc.tn.gov.in/judis/ S.A.No.343 of 2021 M.SUNDAR. J mk To
1. The District Munsif District Munsif Court Nagapattinam.
2. The Sub-Judge Sub-Court Nagapattinam.
S.A.No.343 of 2021
16.04.2021 16/16 https://www.mhc.tn.gov.in/judis/