IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.104 of 2009 Lakshmi ... Appellant/Defendant vs. Raman .... Respondent/Plaintiff This second appeal is filed under Section 100 of C.P.C. against the judgement and decree dated 15.11.2007 passed in A.S.No.125 of 2007 by the Principal Subordinate Court, Salem, confirming the judgement and decree dated 4.4.2007 passed by the II Addl. District Munsif, Salem, in O.S.No.2423 of 2004. For Appellant : No appearance JUDGMENT This second appeal is focussed by the defendant, animadverting upon the judgement and decree dated 15.11.2007 passed in A.S.No.125 of 2007 by the Prl. Sub Court, Salem, confirming the judgement and decree dated 04.04.2007 passed by the II Additional District Munsif, Salem, in O.S.No.2423 of 2004, which was filed for permanent injunction as against the defendant, restraining him from interfering with the plaintiff's peaceful possession and enjoyment of the suit immovable property. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. (b) The trial Court framed the relevant issues. During trial, on the plaintiff's side one Raman was examined as P.W.1; Semban was examined as P.W.2 and Vairavel was examined as P.W.3 and Exs.A1 to A47 were marked. On the defendant's side no one was examined and no document was marked. Ex.C1 to Ex.C3 were marked as Court documents. (c) Ultimately, the trial Court decreed the suit and as against which, A.S.No.125 of 2007 was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of https://hcservices.ecourts.gov.in/hcservices/ the lower Court. 2. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal is focussed by the defendant on various grounds and also setting out the following substantial questions of law:- a) Whether the Courts below are justified in holding that the suit is not bared by res judicata and decreeing the suit for permanent injunction as prayed for? b) Whether the suit for permanent injunction without seeking the relief of declaration of title of the respondent/plaintiff is maintainable in law in view of the permanent injunction granted in favour of the appellant/defendant herein in the earlier suit in O.S.No.754 of 2000 filed by her? 3. Despite printing the names concerned, none appeared. 4. A bare poring over and perusal of the typed set of papers, including the judgements of both the Courts below, would exemplify and expatiate, demonstrate and display that earlier the suit O.S.NO.754 of 2000 was filed as against six persons, including the respondent/plaintiff herein, namely, Raman, by citing him as D3 therein and in respect of the 'A' scheduled property therein, the previous suit was dismissed and in respect of the 'B' scheduled property, the suit was decreed. 5. The 'B' scheduled property in the said suit O.S.No.754 of 2000, was described as one bearing Survey No.13/4C2, comprising of 27 cents. However, in the present suit O.S.No.2423 of 2004, the Survey Number is 28/3E2 measuring an extent of 0.41.5 ares. 6. It is therefore ex facie and prima facie clear that the suit property in the present suit is different from the suit property in the earlier suit and in such a case, a fortiori the plea of res judicata cannot be pressed into service. It is obvious and axiomatic that a subsequent suit is barred between the same parties if at all the dispute is with regard to one and the same item of property. The lower Court, au fait with law and au courant with facts appropriately and appositely referred to the above said point and decided that the principle of res judicata is not applicable and no more dilation on that point is required, as it is quite obvious and axiomatic. As such, the suggested substantial question of law (a), based on res judicata, does not arise. 7. The suggested substantial question of law (b) also is centered on the same plea to the effect that the injunction granted in the previous suit O.S.No.754 of 2000 would be a bar for the respondent https://hcservices.ecourts.gov.in/hcservices/ herein to pray for injunction in the present suit concerned. 8. To the risk of repetition, without being tautalogous, I would like to highlight that in the present suit, the Survey Number is 28/3E2A, which is, as correctly found out by the lower Court, covered by the plaintiff's sale deed Ex.A1-dated 17.2.1994; wherefore the question of the plaintiff praying for the declaration of title doe not arise and the plaintiff correctly thought fit to pray only for injunction in respect of a land, over which he is having ownership right, as per Ex.A1-his title deed and that too when indubitably and indisputably the defendant does not claim ownership right over the subject matter of Ex.A1, which is the suit property herein. 9. No doubt, the trial Court also pointed out that there is boundary dispute between the plaintiff and the defendant. But neither of the parties took steps to get the boundary dispute settled by filing comprehensive suit. Put simply, one fact is clear that the plaintiff and the defendant in the suit do not claim each others land, but there is some boundary dispute and it is for the parties, as correctly pointed out by the trial Court, to seek necessary remedy to get the boundary dispute settled once and for all. As such, based on documentary and oral evidence, the trial Court as well as the first appellate Court thought fit to grant injunction in favour of the plaintiff, recognising the possession of the plaintiff over the suit property, warranting no interference by this Court. 10. Both the Courts below, after discussing the evidence, both oral and documentary, held that the plaintiff, on the date of filing of the suit, was in possession of the suit property, as contemplated in Ex.A1 and accordingly, granted injunction and this Court, in Second appeal cannot be called upon to re-appreciate those details relating to possession. 11. At this juncture, my mind is redolent and reminiscent of the following decisions of the Honourable Supreme 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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- 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." https://hcservices.ecourts.gov.in/hcservices/ (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. 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. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that: "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." A plain reading of the above judgements would leave no doubt that unless there is substantial question of law involved in a matter, no second appeal would lie. 12. My discussion supra would connote and denote that here https://hcservices.ecourts.gov.in/hcservices/ absolutely there is no merit in the second appeal and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1.The Principal Subordinate Judge, Salem 2.The II Addl. District Munsif, Salem. 1 CC To Mr.V.R.Rajasekaran, Advocate, SR NO.8601 S.A.No.104 of 2009 rsm(co) pmk/31.3.2009. https://hcservices.ecourts.gov.in/hcservices/