IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.4.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.426 of 2010 & M.P.No.1 of 2010 1.Bakkiyam 2.Santhi 3.Senthilkumar 4.Vijaya Krishnan 5.Palaniammal 6.Angamuthu .. Appellants/Defendants -Vs- 1.Kannan 2.Sellammal 3.Santhi 4.Tamilselvi .. Respondents/Plaintiffs Prayer: This Second Appeal is filed under section 100 of C.P.C against the judgment and decree dated 24.8.2009 passed in A.S.No.60 of 2008 on the file of the Subordinate Court, Rasipuram, Namakkal District reversing the decree and judgment dated 2.3.2005 passed in O.S.No.493 of 2004 by the District Munsif Court, Rasipuram, Namakkal District. For Appellant : Mr. I .C.Vasudevan for Mr.R.Nalliappan JUDGMENT The defendants in the original suit are the appellants in the second appeal. The suit was filed by the respondents for a permanent injunction in respect of the suit property defined in the plaint schedule, whose extent is given as 5.16 acres. Contending that the appellants/defendants, who are the owners of the adjacent land, allowed their cattles to stray into the suit property even while the crops were standing and thus allowed them to cause damage to the standing crops and that the said act on the part of the appellants/defendants in allowing their cattle to cause damage to the standing crops continued unabated even after they were appraised of such facts and advised not to allow such things to happen, the respondents/plaintiffs had filed the suit for a permanent injunction restraining the defendants from causing any hurdle or interference to their peaceful possession and enjoyment of the suit property. https://hcservices.ecourts.gov.in/hcservices/ 2.The suit was resisted by the appellants/defendants contending that the plaintiffs were entitled to 5.16 acres alone, whereas patta had been issued for a larger extent; that the respondents/plaintiffs had not clarified whether they claim relief in respect of the extent found in patta or the lesser extent as per the document of title and that hence the respondents/plaintiffs should be non-suited for the relief sought for. It was contended further that the appellants/defendants never allowed their cattles to stray into the land of the respondents /plaintiffs to cause damage to the grape crops and turmeric crops as alleged by the respondents/plaintiffs and that hence, there was no cause of action for seeking an injunction against the appellants/defendants. 3.Based on the said pleadings, the trial Court framed the four issues and conducted the trial in the trial Court. They are as follow: 1.Whether the details of the suit property are correct? 2.Whether the possession of the plaintiffs is disturbed by the defendants? 3.Whether the plaintiffs are entitled for the permanent injunction? 4.To what relief the plaintiffs are entitled? 4.The first plaintiff besides examining himself as PW1, also examined one Murugesan as PW2. As many as 8 documents were produced and marked as Exs.A1 to A8 on the side of the plaintiffs. The first defendant alone figured as the sole witness viz., DW1 on the side of the defendants. No document was marked on their side. The learned trial Judge, at the conclusion of the trial, after hearing the arguments advanced on either side and on appreciation of evidence, came to the conclusion that there was discrepancy in the extent of property claimed by the respondents/plaintiffs and that the cause of action alleged in the plaint was not proved. Consequently, the learned trial Judge dismissed the suit without cost. 5.As against the said judgment and decree of the trial Court dated 02.03.2005 made in O.S.No.493 of 2004, the respondents herein /plaintiffs preferred an appeal on the file of the learned Subordinate Judge, Rasipuram in A.S.No.60 of 2008. The learned Subordinate Judge, after hearing the arguments advanced on both sides, came to the conclusion that there was no discrepancy in the extent of land claimed to be in possession and enjoyment of the respondents/plaintiffs and that clear cause of action had been proved to exist by the respondents/plaintiffs. Hence reversing the judgment and decree of the trial Court, the learned Subordinate Judge allowed the appeal and decreed the suit as prayed for with a direction that the parties shall bear their respective cost of litigation. 6.As against the judgment and decree of the learned Subordinate Judge, Rasipuram, the appellants herein /defendants have brought forth this second appeal on various grounds set out in the memorandum of grounds of appeal. https://hcservices.ecourts.gov.in/hcservices/ 7.This Court heard the submissions made by Mr. I.C.Vasudevan, learned counsel representing the counsel on record for the appellants. This Court also perused the judgments of the Courts below and the documents produced in the form of typed-set of papers. 8.Under Section 100 of Civil Procedure Code, an appeal from the decree of the appellate Court shall lie to the High Court only on a substantial question of law. That means, a second appeal shall lie to the High Court only on a substantial question of law. In this case, there is no dispute regarding the boundaries of the property and the extent of the property owned by the respondents/plaintiffs. The respondents/plaintiffs have made it clear that the extent of property owned by them with respect to which they are claiming the relief is only acre 5.16. However, they have also chosen to show the extents mentioned in the patta in hectares issued by the Revenue authorities. There is no much difference between the extent found in hectares and found in acres. Admittedly, the plaintiffs are entitled to a total extent of 5.16 acres. Patta was issued in the name of the plaintiffs for hectare 1.75.5 and hectare 0.33.0. When it is converted into acres, it will come around 5.15 acres. The measurement given by the plaintiff in acres is acre 5.16. As such there is no significant difference between the extent shown in hectares and acres. However, the learned trial Judge seems to have harped on the supposed discrepancy as it had been misled by paragraph 4 of the written statement which gave a wrong figure of conversion of hectares into acres. The said mistake committed by the learned trial Judge has been rightly corrected by the learned lower appellate Judge. 9.Coming to the question of the proof for cause of action, the learned trial Judge had taken the view that since it was the fact admitted by the plaintiffs themselves through PW1 that the defendants did not trespass into the lands or claim the suit property, but they knowingly or innocently allowed their cattles to stray into the suit property whereby damage to the crops was caused by the cattles, the same would not give a cause of action for filing a suit for injunction against the defendants. The learned trial Judge also came to the conclusion that the said fact of cattles of defendants causing damage to the crops of the plaintiffs was not proved by sufficient evidence. The said finding as well as the above said observation were impugned before the lower appellate Court and the lower appellate Court, being the final Court of appeal on facts, on a thorough re-appreciation of facts came to the conclusion that the evidence adduced on the side of the plaintiffs, as against a bald denial by DW1, was enough to prove the fact that the cattles of the appellants/defendants were allowed to stray into the suit land and such cattles caused damage to the standing crops. The learned trial Judge had disbelieved the evidence of PW2 as a corroborating peace of evidence in support of PW1's evidence. The learned lower appellate Judge on a re- appreciation of his evidence came to the conclusion that the rejection of the evidence of PW2 was improper and the cumulative https://hcservices.ecourts.gov.in/hcservices/ effect of oral and documentary evidence adduced on the side of the plaintiffs was that the alleged cause of action stood proved. It is also pertinent to note that evidence has been adduced by the plaintiffs to the effect that when the defendants were appraised of the fact of their cattles straying into the suit property and causing damage to the crops the defendants instead of assuring the plaintiffs that such things will not be repeated, chose to cause a threat to the plaintiffs that they would cause disturbance to the peaceful possession and enjoyment of the property, If the plaintiffs ventured to make any such complaint. 10.The learned lower appellate Judge also extracted a portion of evidence of DW1 in cross examination:- "thjpfs; Mapy;gl;o fhty; epiyaj;jpy; v';fs;kPJ g[fhh; bfhLj;jJ th!;jtk;jhd;/ ehDk; vd;idr; nrh;e;j 9 egh;fSk; thjpfs; bgahpy; ehkf;fy; rhh;g [ ePjpkd;wj;jpy; tHf;F jhf;fy; bra;jJ cz;ik/ nftpnal; kDtpy; v';fs; brhj;J kw;Wk; thjpfspd; brhj;J vd;W Fwpg;gplg;gl;Ls;sJ/ v';fs; epyj;ij eh';fs; mDgtpg;gij jil bra;jjhy;jhd; eh';fs; thjpfs; kPJ nftpnal; jhf;fy; bra;njhk;/" DW1 has admitted that there was a complaint preferred by the plaintiffs against the defendants on the file of Ayilpatti Police Station. He has also admitted that the defendants filed a Caveat on the file of the Sub-court Namakkal. Under what circumstances, the said caveat was filed has not been elaborated. DW1 would state that the caveat was filed since the plaintiffs tried to prevent the defendants from enjoying their property. No where in the written statement the defendants have stated that the plaintiffs made any attempt to prevent the defendants from enjoying their properties. If such is the case, the defendants would not have chosen to file a caveat expecting a suit to be filed by the plaintiffs. On the other hand, they themselves would have filed a suit seeking injunction against the respondent herein/plaintiffs. The fact that they have chosen to file a caveat will also go to show that they expected the respondent herein / plaintiffs to file a suit against them. Therefore, the factual finding of the lower appellate Court that there was cause of action in so far as the appellants/defendants allowed their cattle to stray into the suit property and thereby caused damage to the crops is well founded and at no stretch of imagination, it can be stated to be perverse. It is pertinent to note that the learned trial Judge has taken a stand that the plaintiffs should have put up a fence in order to prevent the cattles of defendants from straying into the suit property and without doing it, filing a suit for injunction should not be encouraged. The learned lower appellate Judge has rightly held that such an observation was incorrect. 11.For all the reasons stated above, this Court comes to the conclusion that the appellants have come forward with the second appeal on a question of fact alone and on the question of demeanor of a particular witness, which cannot be elevated to a level of a substantial question of law unless such a finding is proved to be perverse. The finding recorded by the lower appellate Court is not proved to be perverse. This Court is convinced that no substantial https://hcservices.ecourts.gov.in/hcservices/ question of law is involved in the second appeal. There is no defect or infirmity in the judgment of the lower appellate Court and the same does not deserve any interference and that this second appeal deserves to be dismissed in limini. 8.Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gpa To 1. The Subordinate Court Rasipuram, Namakkal District 2.District Munsif Court Rasipuram, Namakkal District. + 1 cc to Mr.R.Nalliappan, Advocate Sr 26705 S.A.No.426 of 2010 & M.P.No.1 of 2010 SP (CO) RH (7.6.10) https://hcservices.ecourts.gov.in/hcservices/