U M DEIVASIGAMANI Vs. T K KUPPUSAMY GOUNDER

JUDGEMENT

(1.) 1.(This second appeal is filed against the judgment and decree dated 28.04.2008 made in A.S.No,88 of 2007 on the file of the Principal District Court, Erode confirming the judgment and decree dated 15.12.2006 made in O.S.No,464 of 2004 on the file of the District Munsif Cum Judicial Magistrate, Perundurai (Transferred O.S.No,650 of 1999 First Addl. Sub Court, Erode).This second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 28.04.2008 passed in A.S.No,88 of 2007 by the Principal District Judge, Erode, confirming the judgment and decree of the trial Court, namely, District Munsif cum Judicial Magistrate, Perundurai, in O.S.No,464 of 2004, (Transferred O.S.No,650 of 1999 First Addl. Sub Court, Erode). For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

(2.) THE plaintiff/appellant filed the suit O.S.No,464 of 2004 seeking the following reliefs:"(a) Declaring the plaintiff's absolute right, title, interest and possession of suit property(b) granting permanent injunction restraining the defendants, their men, agents, assignees from interfering with plaintiff's peaceful possession and enjoyment of the suit property either by trespass or by any other manner whatsoever(c) awarding cost of the suit and(d) grant such other further reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and render justice."THE defendants entered appearance and filed the written statement and resisted the suit. 3. THE trial Court framed the relevant issues. During trial, the plaintiff examined herself as P.W.1 and one Ramasamy Gounder was examined as P.W.2 and Exs.A1 to 16 were marked. On the side of the defendants, Karuppusamy/D2 examined himself as D.W.1 and Exs.B1 to B21 were marked. Exs.C1 to C3 were marked as Court documents.4. Ultimately, the trial Court dismissed the suit as against which an appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal is sought to be filed on various grounds and also by suggesting the following alleged substantial questions of law:"(a) Whether the Courts below are correct in law in dismissing the suit for declaration and permanent injunction particularly when the plaintiff has established his title under Ex.A2 (05.10.1999), more so, his claim is supported by the parent document Ex.A1 dated 16.07.1911 which requires no proof under Sec.90 of the Evidence Act?(b) Whether the Courts below committed an error in dismissing the suit on the ground of resjudicata especially when the plaintiff was not a party to the earlier suit and that the subject matter of the suit properties are totally different and distinctive in nature?(c) Whether the Courts below are right in law in not considering the plea of adverse possession when the plaintiff and his predecessors-in-title have proved and established the title by adverse possession over the suit property beyond the period prescribed under the Statute?"5. Heard both sides.6. A plain poring over and perusal of the records would demonstrate and display that the present suit filed by the appellant in the Second appeal before the trial Court is for the reliefs stated supra, citing the following schedule of property:"SCHEDULE OF PROPERTYTAMILAs such, for an extent of 50 X 50 in re-survey No,201/2 the plaintiff laid the suit. 7. Both sides in unison would put forth the unassailable and incontrovertible, indubitable and indisputable facts to the effect that earlier there were two suits emerged in respect of 176-A, 177-A, 179-H and 178-B measuring a total extent of 8.26 acres. THE details of those suits are not very much relevant for the disposal of this case. However, those suits are O.S.No,53 of 1976, O.S.No,71 of 1978 and O.S.No,253 of 1976 of Principal Sub Court, Erode and a common judgment emerged there under, where upon first appeal, second appeal and SLP emerged and disposed of. As such, finality has been achieved in those proceedings. THE fact also remains that the present appellant in this Second Appeal happened to be one of the defendants in the earlier suit. It so happened that during the pendency of the Second Appeal in the previous proceedings the plaintiff herein, i.e. the appellant in the Second Appeal purchased the suit property referred to supra from one Ramasamy, as per Ex.A2, the sale deed dated 05.10.1999.8. THE learned counsel for the plaintiff/appellant herein would advance his argument that the previous proceedings are having nothing to do with the present suit property as in stricto senso the present suit property is situated in S.No.178-A, whereas in the previous proceedings, along with other survey numbers, S.No.178-B alone was the subject matter, but here the litigation is relating to S.No.178-A this subtle distinction has not been taken into account by both the Courts below and simply they were carried away by the representation made by the respondents/defendants to the effect that the previous proceedings are squarely applicable to the present suit. Accordingly the defendants got the suit dismissed.9. Whereas, the learned counsel for the respondents/defendants would develop his argument to the effect that it is not the case of the appellant/plaintiff before the trial Court or in his plaint that S.No.178-A happens to be the subject matter of the suit he has chosen to get incorporated only S.No.178 in the sale deed Ex.A2 as well as in the schedule of property and thereby tried to grab the extent from out of the area covered under the earlier proceedings. He would also draw the attention of this Court by producing a copy of the Commissioner report filed before the lower Court and the learned counsel for the plaintiff also had a glance at it, which would reveal that the Commissioner appointed in those proceedings visited the suit property and located resurvey number 201/2, wherein he located the suit property measuring 50' X 50'. According to him resurvey No,201/2 is not found sub divided or demarcated as 50' X 50'.10. Whereas the learned counsel for the plaintiff/appellant herein would submit that in the earlier proceedings it was clearly pointed out that along with other survey numbers, S.No.178-B was found contemplated and that is described as one situated to the west of S.No.178-A. Precisely what I would understand from the submission made by the learned counsel for the plaintiff is that the present suit is only for S.No.178-A, whereas the learned counsel for the defendant would submit that that is not the case at all of the plaintiff before the lower Court. If the plaintiff is claiming a survey number over which the defendants are having no claim, then there could be no dispute at all. However in this case 50' X 50', as per the plaintiff, forms part of the land involved in the proceedings and in the present suit, a part of the said same property is sought to be litigated, which is not contemplated under law and both the Courts below correctly held that the present suit is barred in view of the previous proceedings.11. A plain reading of the plaint would be highlighting that the suit property originally belonged to one Sankara Gounder, who sold it to Marappa Gounder S/o Muthu Gounder as per Ex.A1, the sale deed dated 16.07.1911. After Muthu Gounder, his son, namely Kaithamalai Gounder and his grandson, namely Ramasamy Gounder inherited the same. After the death of Kaithamalai Gounder, his son Ramasamy Gounder was in possession and enjoyment of the same and he leased out the said suit property in favour of the plaintiff herein and thereafter alone he purchased it. THE learned counsel for the defendants herein would submit that no such lease deed was produced and nothing has been spotlighted that the plaintiff herein has been in possession and enjoyment of the said suit property ever since 1987 and as such, the present suit is nothing but an attempt to grab a part of the suit property which is covered under the earlier proceedings. 12. It is a trite proposition of law that the plaintiff who filed the suit should prove his case. It is an admitted fact that during the pendency of the Second Appeal alone, this sale deed emerged and for that matter the alleged lease deed should have been emerged, if true, during the pendency of the previous proceedings and it is for the plaintiff to prove as to how the suit property involved in the previous proceedings is having nothing to do with this property. However, both the Courts below after dealing with the matter came to the conclusion that the plaintiff has not proved that the present suit property is different from the earlier suit property. Put simply, the findings were purely based on analysis of factual evidence by the Courts below and as such, I could see no ground to interfere with the finding of facts rendered by both the Courts below.13. THE proposed substantial question of law No.1 is with regard to Ex.A2 sale deed. My above discussion supra would indicate and exemplify that both the Courts below after analyzing the evidence on record arrived at the conclusion warranting no interference.14. THE proposed substantial question of law No,2 is relating to res judicata and precisely after considering the previous proceedings, the Courts arrived at the conclusion that the previous proceedings operates as res judicata.15. THE proposed substantial question of law No,3 is relating to adverse possession. In my considered opinion, the plea of adverse possession was not raised in the plaint. Hence that would not give rise to substantial question of law.16. At this juncture, my mind is redolent and reminiscent of the following decisions of the Honourable Apex Court:(i) (2006) 5 Supreme Court Cases 545 - HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its 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 inherenth 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 his 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. . . . (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-recognized 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."(ii) 2008(4) SCALE 300 - KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.It is therefore crystal clear that there should be substantial question of law for entertaining the second appeal. Here, my discussion supra would evince and spotlight that absolutely there is no question of law, much less substantial question of law is involved in this matter. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.