IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.08.2009 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.365 and 391 of 2003 and C.M.P.Nos.307 and 815 of 2009 1. Thangaraj (deceased) 2. Victor Anantraj ... Appellant in both S.As. (2nd Appellant is brought on record as L.R. Of the deceased sole appellant vide order of Court dt. 12.12.2006) Vs. Balaraman ... Respondent in both S.As. Second Appeals filed as against the judgments and decrees dated 09.10.2002 in A.S.Nos.75 and 77 of 2001 on the file of the Principal Subordinate Judge, Chengalpattu, confirming the judgment and decree dated 30.04.1999 in O.S.Nos.401 and 402 of 1997 on the file of the District Munsif cum Judicial Magistrate at Alandur. For Appellant : Dr.G.Krishnamurthy For Respondent : Mr.T.L.Rammohan, Sr.Counsel for Mr.T.Ravindran C O M M O N J U D G M E N T O.S.No.401 of 1997 was filed by one Balaraman as against Thangaraj, seeking permanent injunction in respect of an immovable property whereas the said Thangaraj filed the suit O.S.No.402 of 1997 as against the said Balaraman seeking declaration and recovery of possession in respect of a portion of the same suit property. Joint trial was conducted and the trial Court dismissed the suit O.S.No.402 of 1997 filed by Thangaraj and decreed the suit O.S.No.401 of 1997 for injunction, in favour of Balaraman. 2. Animadverting upon the common judgment and decrees passed by the trial Court, the said Thangaraj preferred two appeals A.S.No.75 of 2001 (O.S.No.401 of 1997) and A.S.No.77 of 2001 (O.S.No.402 of 1997) for nothing but to be dismissed confirming the judgment and decrees of the trial Court. Whereupon, these Second Appeals have been filed. https://hcservices.ecourts.gov.in/hcservices/ 3. The epitome and long and short of the case of Balaraman in O.s.No.401 of 1997 could be set out thus: The property bearing plot No.44A in S.No.56/2 at 158, Zameen Pallavaram was allotted to the plaintiff by virtue of the Special Tahsildar's assignment during the year 1997. Even prior to it, the plaintiff was in possession and enjoyment of the same by putting up a thatched structure. While so, the defendant, who is a neighbour to the plaintiff on the northern side, was trying to barge in to the suit property and put up construction thereon. Hence the suit. 4. Refuting and remonstrating, gainsaying and challenging the averments/allegations in the plaint, the defendant Thangaraj filed the written statement that the suit property was assigned in favour of one P.Subramanian by the Government of Tamil Nadu and he had been in possession and enjoyment of the same. While so, he inducted the defendant as a tenant into the suit property. Whereupon, the defendant has been in possession and enjoyment of the same. The said Subramanian ultimately sold the suit property by virtue of a registered sale deed dated 10th March 1977 in favour of the defendant who had put a superstructure in the suit property. The allegations to the contrary in the plaint are all false. Accordingly, he prayed for the dismissal of the suit. 5. The said Thangaraj, the defendant in O.S.No.401 of 1997 filed the suit O.S.No.402 of 1997 setting out the facts which are virtually found set out in the written statement filed by him in O.S.No.401 of 1997. Thangaraj also would further aver to the effect that during the pendency of the earlier suit, the said Balaraman trespassed into the suit property and put up a hut in a portion of it with the help of criminal elements and the said portion trespassed by the said Balaraman is described as 'B' portion in schedule of the plaint in O.S.No.402 of 1997. Accordingly, the plaintiff prayed for declaration of the plaintiff's title to the 'B' scheduled property and for recovery of possession of the same, after removal of the superstructure thereon. 6. Remonstrating and refuting the averments/allegations in the plaint in O.S.No.402 of 1997, the defendant Balaraman therein, filed the written statement virtually incorporating therein his averments in the plaint in O.S.No.401 of 1997 and in addition to that he would also aver that he (Balaraman) did not barge into the suit property and occupy a portion of it described as 'B' scheduled property in the plaint in O.S.No.402 of 1997. The claim of Thangaraj that he purchased the property from Subramanian is nothing but an utter falsehood and there is no registered sale deed in his favour. The said Subramanian was not the owner of the suit property at any point of time. Accordingly he prayed for the dismissal of the suit O.S.No.402 of 1997. https://hcservices.ecourts.gov.in/hcservices/ 7. The trial Court framed the relevant issues and during joint trial, Balaraman examined himself as P.W.1 along with P.W.2, K.Sivanandam and Exs.A1 to A17 were marked. Thangaraj examined himself as D.W.1 along with three others and Exs.B1 to B33 were marked. Ultimately, the trial Court by a common judgment dismissed the suit of Thangaraj in O.S.No.402 of 1997 and decreed the suit of Balaraman in O.S.No.401 of 1997. The appeals in A.S.Nos.75 and 77 of 2001 filed by Thangaraj were dismissed. 8. Animadverting upon the judgments and decrees of both the Courts below, these two Second Appeals have been focussed on almost same and similar grounds thus: The evidence of P.Ws.1 and 2 should not have been believed by both the Courts below and the suit O.S.No.401 of 1997 should have been dismissed. Ex.B8, in the name of Subramanian was not considered properly by the Courts below. The appellate Court simply agreed with the trial Court and dismissed the claim of Thangaraj, the second appellant herein. Even though Ex.B1 to B33 were marked on the side of Thangaraj, those documents were not discussed and considered by the lower Courts, except for two documents. Accordingly, the second appellant prayed for setting aside the judgments of the Courts below and for decreeing the suit of Thangaraj O.S.No.402 of 1997 and for dismissal of the suit O.S.No.401 of 1997. 9. My learned predecessor at the time of admitting both the appeals, formulated one and the same type of substantial questions of law as under: "1. Whether both the courts were correct in dismissing the entire suit? and 2. Whether the plaintiff has established his title, at least, to a part of the suit properly?" It is exfacie and prima facie clear that the substantial questions of law have to be reformulated and accordingly, the substantial questions of law do emerge thus: "1. Whether the Courts below failed to take into consideration the evidentiary value of Ex.B6, dated 10.03.1997, the letter executed by Subramanian, in favour of Thangaraj, as the one allegedly proving the collateral purpose to wit the possession of Thangaraj in the part of the suit property? 2. Whether the judgments of both the Courts below were erroneous, in the alleged absence of any evidence to prove possession of the plaintiff in respect of the suit property? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether both the Courts below failed to take into consideration Exs.B1 to B33 except for two documents and thereby were perverse in their findings relating to the defendant's case?" 10. For convenience sake, Thangaraj is referred to as the appellant and Balaraman is referred to as the respondent here under. 11. The learned counsel for the appellant in the Second Appeals would set forth and put forth his argument detailing and delineating the facts and also reiterating the grounds of appeal that the first appellate Court in its judgment simply translated into English the Tamil judgment of the trial Court; Ex.B6 is having its probative force relating to proving the nature of the possession of a portion of the suit property; simply because the Court found that the appellant has not proved his title to the suit property, the suit was decreed in favour of the respondent, even though he has not independently established his title or possession in respect of the suit property. 12. Whereas the learned counsel for the respondent herein, by way of torpedoing and pulverising the arguments as put forth on the side of the appellants, would advance and develop his arguments that on imaginary grounds the appellant therein is trying to lay claim over 0.6 cents of land and that there is no shard or shred, molecular or iota, jot or scintilla extent of evidence in support of his claim. 13. A bare poring over and perusal of the relevant records would exemplify that the very bedrock of the case of Balaraman is that as per Ex.A1-the form-XXIII issued by the Tahsildar concerned, the plot bearing No.44-A measuring an extent of 0.3 cents was conferred on him. 14. Whereas, the contention of Thangaraj is that his predecessor in title, namely, Subramanian was similarly given with form-XXIII, as revealed by Ex.B8, relating to Plot bearing No.45-A, measuring an extent of 0.3 cents. 15. At this juncture, it is worthwhile to extract hereunder the respective schedules appended to the plaints. In the plaint filed by Balaraman(O.S.No.401 of 1997), the following schedule is found exemplified: "Plot bearing No.44-A comprised in S.No.56/2 situated at 158, Jamin Pallavaram bounded on North by Hill side land, South by Main Road, East by Ramalingam Plot No.(46), West by Durairaj Plot No.43." In the plaint filed by Thangaraj(O.S.No.402 of 1997), the following schedule is found exemplified: https://hcservices.ecourts.gov.in/hcservices/ "Schedule-A "Land in S.No.56/2, bearing Plot No.45-A, Zamin Pallavaram Village, Saidapet Taluq, Chingleput District, being bounded on the North by Hill bounded on the South by Battai, bounded on the West by the property of Dorairaj and bounded on the East by the property of Ramalingam, measuring 6 cents." Schedule-B Land in S.No.56/2, bearing Plot No.45-A in Zamim Pallavaram Village, Saidapet Taluq, Chingleput District, being bounded on the North, on the South, on the East by the property of the plaintiff and bounded on the West by the property of Durairaj, measuring North to South 10 feet and East to West 10 feet and shown in Green in the plan annexed and marked as A B C D." 16. A plain reading of the above would disclose and evince that Balaraman claims only the Plot bearing No.44-A measuring an extent of 0.3 cents and nothing more. However, Thangaraj even though claims only Plot bearing No.45-A measuring an extent of 0.3 cents, as per Ex.B8, even so curiously, claimed the Plot No.45-A measuring an extent of 0.6 cents. 17. At this juncture, I would like to point out that it is not known as to how Thangaraj, by relying on Ex.B8, simply in the suit, would claim that he is entitled to 0.6 cents. Pellucidly and palpably, it is clear that Thangaraj, placing reliance on Ex.B6-the alleged sale letter dated 10.3.1977, purported to have been executed by Subramanian in his favour, claimed as though, he is entitled to 0.6 cents of land. Even though, as many as 33 documents have been relied on Thangaraj's side, absolutely there is no shard or shred, iota or miniscule, jot or scintilla of evidence to demonstrate that at any point of time the said Subramanian was owning 0.6 cents of land or possessing the alleged 0.6 cents of land. 18. At this juncture, I recollect and call up the following maxims '(i) Nemo dat quod non habet', which means no one can convey better than what he has. (ii) Vicarius non habet vicarium, which means a delegate cannot delegate. 19. When there is no indication that Subramanian himself had ownership right over 0.6 cents of land, he could not have validly transferred under Ex.B6, an extent of 0.6 cents of land. Over and above that, the learned counsel for Balaraman would appropriately and appositely, convincingly and legally put forth and set forth his https://hcservices.ecourts.gov.in/hcservices/ argument to the effect that Ex.B6 cannot be treated as a sale deed at all, as it is an unregistered one and furthermore, it is not at all having the sanctity of a sale deed. 20. As per Section 17 of the Registration Act, it is palpably and axiomatically clear that Ex.B6, by no stretch of imagination, could be termed as a sale deed. As per Section 49 of the Registration Act, for collateral purpose the said document could be relied on. However, in this case, to prove even the nature of possession also, Ex.B6 cannot be relied on for the reason that the description of property in Ex.B6 is vague and it cannot be equated with the property as found described in Ex.B8. Thus, Ex.B6 and Ex.B8 would in no way highlight that Subramanian was in possession and enjoyment of 0.6 cents of land. 21. With reference to Ex.A1, if the property described in the schedule of the plaint filed by Balaraman (O.S.No.1921 of 1996)) is scrutinised, it is at once clear that Balaraman's plot No.44-A should be to the North of Plot No.45-B and South of Plot No.44-B. But, a bare perusal of the judgements of both the Courts below as well as the oral evidence adduced on both sides would indicate as though his plot is abetting the road on the Southern side, but Ex.A1 would not in any way evince that on the Southern side Road is situated, because on the Southern side, the Plot No.45-B alone is found specified as existing, as per Ex.A1. Balaraman would claim that Thangaraj is occupying some area to the North of his Plot as a neighbour. 22. Here, Ex.A1 would reveal and disclose that to the North of Balaraman's Plot No.44-A, the Plot No.44-B is contemplated, and in such a case, I am at a loss to understand as to how Thangaraj, who could, at the most, be the plot owner of 45-A, by stepping into the shoes of Dr.Subramanian, could have occupied an area to the North of Balaraman's property. 23. Durairaj is stated to be having the plot to the West of the property of Balaraman and for that matter even Thangaraj would claim that Durairaj's plot is to the West of his plot. As such, both Balaraman and Thangaraj would claim as though Durairaj happened to be their Western neighbour and it is not at once clear as to how it could be. Unless Durairaj owned property, measuring a larger extent abetting Plot No.45-A, 45-B and 44-A, both cannot claim that Durairaj happened to be their Western neighbour and this is a crucial point to be noted. 24. The evidence on record would clearly indicate and project that Thangaraj, and obviously after his death, his descendants are occupying an area, some 70 feet away from the Southern side road. But as per Ex.B8, immediately to the North of the road, Thangaraj should have his area of occupation. But the evidence adduced on his side would speak to the contrary. Ex.B8 would reveal that the plot https://hcservices.ecourts.gov.in/hcservices/ belonging to Thangaraj is situated to the North of the road and South of the Plot bearing No.45-B and to the East of Plot No.43 and West of Plot No.46. As such, in juxtaposition Ex.A1 and Ex.B8 are considered, Balaraman and Thangaraj cannot be neighbours. 25. The Plot bearing No.45-B intervenes in between the Plots bearing Nos.44-A and 45-A. As such, all these facts are quite obviously and axiomatically clear, but both the parties did not take into account these salient features and they simply drafted their respective plaints in their own self serving manner and went to the trial, having some cloudy thoughts in their minds. 26. Both the Courts below also did not take into consideration these salient features. No steps were taken for locating the Plots bearing Nos.44-A and 45-A. When certain facts could be discerned and understood clearly and palpably, by getting a Commissioner appointed and measuring the plots concerned, any amount of oral evidence would be useless. 27. In this case, the oral evidence only highlights as to how both the parties were not even aware of their respective rights as well as in respect of what they were fighting for as against each other. The Courts below have in fact, considered the defects in the case of Thangaraj, but failed to consider the defects in the pleadings as well as the case put forth on the side of Balaraman. 28. As such, to the risk of repetition and pleonasm, but without being tautalogous, I would like to highlight and spotlight the fact that Balaraman is undoubtedly entitled to Plot No.44-A measuring 0.3 cents as found in Ex.A1 and Thangaraj and after his death his descendants are entitled to Plot No.45-A, measuring an extent of 0.3 cents and those respective plots should be located and accordingly, each side should be asked to restrict their claims as well as occupation only to their respective areas and not anything more. 29. Instead of getting a Commissioner appointed, as contemplated supra, both the Courts dilated on scanning the oral evidence of the witnesses, who are not so well informed about the survey map and sketches. Hence, I could see that there is perversity in the approach of both the Courts below, warranting interference by this Court. 30. The learned counsel for the defendant relied on the following decisions of the Supreme Court as well as this Court: (i) 2007-1-L.W.869 – G.AMALORPAVAM AND OTHERS VS. R.C.DIOCESE OF MADURAI AND OTHERS; (ii) 2009(3) CTC 493 – R.PANNERSELVAM VS. A.SUBRAMANIAN AND ANOTHER; https://hcservices.ecourts.gov.in/hcservices/ (iii) 2008(2) CTC 11 – THAILAMMAI AND OTHERS VS. KARUPPANAN AND OTHERS 31. At this juncture, my mind is reminiscent and redolent of the following decisions also: (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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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." (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