IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.185 of 2009 and M.P.No.1 of 2008 1.Pavayee @ Pavayeeammal 2.Palanisamy ...Appellants/Plaintiffs vs. Kandaswamy(deceased) 1.Thangammal 2.Chandral 3.Maheswari ... Respondents/Defendant This second appeal is filed against the judgement and decree dated 10.8.2005 passed in A.S.No.50 of 2004 by the I Additional Sub Court, Erode, confirming the judgement and decree dated 30.6.2004 passed by the II Addl. District Munsif, Erode, in O.S.No.203 of 2003. For Appellants : Mr.T.Murugamanikkam For Respondents : No appearance JUDGMENT This second appeal is focussed by the plaintiffs, animadverting upon the judgement and decree dated 10.8.2005 passed in A.S.No.50 of 2004 by the I Additional Sub Court, Erode, confirming the judgement and decree dated 30.6.2004 passed by the I Addl. District Munsif, Erode, in O.S.No.203 of 2003, which was filed for permanent injunction, so as to restrain the original defendant from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. The original defendant entered appearance and resisted the suit. 2. The trial Court framed the relevant issues. During enquiry the second plaintiff examined himself as P.W.1 and Ex.A1 to A8 were marked. The original defendant examined himself as D.W.1 along with one Palanisamy as D.W.2 and Krishnan as D.W.3 and Exs.B1 and B2 were marked. 3. Ultimately the trial Court dismissed the suit. As against https://hcservices.ecourts.gov.in/hcservices/ which, first appeal A.S.No.50 of 2004 was filed by the plaintiffs. It appears the original defendant died and his L.Rs have been impleaded. The appellate Court confirmed the judgement and decree of the trial Court and dismissed the appeal. Being disconcerted and aggrieved by the said judgements and decrees of both the Courts below, this second appeal is focussed by the plaintiffs on various grounds, including the following substantial questions of law: "A. Whether a suit for bare injunction to protect possession is not maintainable against a co-owner in respect of a house property? B. Whether the judgements of the Courts below are vitiated in that they have failed to render a finding in a suit for permanent injunction filed to protect possession? C. Whether property tax receipts cannot be accepted as proof of possession in respect of a house property?" 4. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 5. Heard the learned counsel for the plaintiffs. 6. From a bare poring over and perusal of the relevant records and also from the argument of the learned counsel for the plaintiffs, what I could understand is that the suit property indubitably and indisputably belonged to Karuppayee, who died issueless. Her husband pre-deceased her. Whereupon Karuppayee's property devolved upon her husband's heirs, namely, Ramaswamy and Kandaswamy. Ramaswamy died leaving behind the plaintiffs. As such, both the Courts below correctly held that the plaintiffs', representing the deceased Ramaswamy and D1-Kandaswamy, who subsequently died, happen to be the co-owners of the suit property and in such a case, the plaintiffs cannot seek injunction as against the defendants. 7. The learned counsel for the plaintiffs would advance his argument to the effect that this is not a vacant land or an agricultural land, but house property and hence, till the filing of the partition suit, the possession of the plaintiffs should be protected, as otherwise it will lead to multifarious troubles and difficulties. 8. It is a trite proposition of law that one cannot obtain injunction as against a co-ownes and that proposition is very much applicable in the facts and circumstances of this case. In fact, I am of the considered opinion that this O.S. should have taken the place of I.A. in a comprehensive partition suit, which should have been filed by the plaintiffs and such a partition suit is the appropriate remedy. But they have chosen to simply file an injunction suit. Hence, I could see no question of law much less substantial question https://hcservices.ecourts.gov.in/hcservices/ of law involved in this case. 9. 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 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, https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 10. My discussion supra would connote and denote that here 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 I Additional Sub Court, Erode. 2.The II Addl. District Munsif, Erode. +1cc to M/s.T.Murugamanikkam, Advocate Sr 10027 SAI(CO) km/21.4. S.A.No.185 of 2009 https://hcservices.ecourts.gov.in/hcservices/