S.BALAKRISHNAN Vs. K.CHITTIBABU

JUDGEMENT

(1.) THE unsuccessful plaintiff, who lost the suit before the trial court and the appeal before the lower appellate court, is the appellant in the present second appeal. The appellant filed the suit O.S.No.490/2001 on the file of Additional District Munsif, Kancheepuram for a declaration that he is the absolute owner of the suit property, which is described to be 74 cents of punja land comprised in Survey No.265/2C in Wallajahbad village, Kancheepuram Taluk, Kancheepuram District. Besides the relief of declaration, the appellant herein/plaintiff had also prayed for the relief of permanent injunction against the respondents herein/defendants not to interfere with his alleged peaceful possession and enjoyment of the said property and as an alternative relief for the recovery of possession of the suit property, but cleverly coining the prayer as one for the relief of mandatory injunction directing them to put the appellant herein/plaintiff in possession of the suit property, if the appellant/plaintiff happened to be dispossessed by the respondents/defendants.

(2.) THE suit was contested by the respondents/defendants contending that out of the total extent of 74 cents comprised in Survey No.265/2C, 10 cents of land was purchased by one Kanniyappa Maistry from Kalyanasundaram, the original owner of the property under a sale deed dated 07.09.1966; that on 10.04.1973, the said Kanniyappa Maistry conveyed the property purchased by him from Kalyanasundaram to Baby Ammal, the mother of the plaintiff; that on the same day, the mother of the plaintiff purchased two cents of land in the very same sub division from Kalyanasundaram and thus she became entitled to 12 cents of land; that the said Baby Ammal, in turn, sold the above said 12 cents of land under a sale deed dated 15.12.1999 to the first defendant; that, if the said 12 cents of land is deducted, the remaining extent in the very same survey number that could have been validly conveyed by Kalyanasundaram to the plaintiff was only 62 cents and that taking advantage of a mistake that crept in the sale deeds dated 10.04.1973 in reciting the total extent of land comprised in Survey No.265/2C, the appellant herein/plaintiff chose to file the suit as a vexatious one.

(3.) A second appeal shall lie to the High Court against an appellate decree of a court subordinate to the High Court under section 100 CPC only on a substantial question of law. The High Court dealing with the second appeal should first of all satisfy itself that the second appeal involves a substantial question of law and, if such satisfaction is arrived at, should formulate and record such a substantial question of law based on which the appeal is to be admitted. Even after such admission, on appearance, the respondent can contend that such a question is not at all a substantial question of law or that such a substantial question of law is not involved in the second appeal. In this regard, notice regarding admission was issued to the respondents and the respondents are before this court represented by counsel.