IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.191 of 2009 and M.P.No.1 of 2009 Thiyagi N.Krishnan(died) Palaniammal(Died) Pechiammal ... Appellant/Appellant/3rd Party vs. 1.The Tahsildar(South), Taluk Office(South), Coimbatore-18. 2.The Revenue Divisional Officer, Coimbatore-18. 3.The District Collector, Coimbatore-18. 4.The Commissioner, Coimbatore Municipal Corporation, Coimbatore. ....Respondents/Respondent/ defendants This second appeal is filed against the judgement and decree dated 9.7.2007 passed in A.S.No.188 of 2003 by the Principal District Judge, Coimbatore, confirming the judgement and decree dated 5.3.2003 passed by the Principal District Munsif, Coimbatore, in O.S.No.2729 of 1990. For Appellant : No appearance For Respondents : No appearance JUDGMENT Animadverting upon the judgement and decree 9.7.2007 passed in A.S.No.188 of 2003 by the Principal District Judge, Coimbatore, confirming the judgement and decree dated 5.3.2003 passed by the Principal District Munsif, Coimbatore, in O.S.No.2729 of 1990, which https://hcservices.ecourts.gov.in/hcservices/ was filed for permanent injunction, this second appeal is focussed on various grounds. 2. Originally the second appellant Pechiammal's father Thiyagi N.Krishnan filed the suit O.S.No.2729 of 1990 seeking the relief of permanent injunction as against the defendants/respondents 1 to 4, so as to restrain them from interfering with his peaceful possession and enjoyment of the suit property. The defendants entered appearance and filed the written statement resisting the suit. 3. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the trial Court. 4. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A22 were marked. One V.Kannan was examined as D.W.1 on the defendants' side and Exs.B1 to B.10 were marked. 5. Ultimately, the trial Court dismissed the suit, as against which, the appeal A.S.No.188 of 2003 was filed by the plaintiff. It appears the said Krishnan died on 17.8.2004. Whereupon his wife- Palaniammal and daughter-Pechiammal were added as his legal heirs. Finally, the appellate Court, after entertaining additional evidence, confirmed the judgement and decree of the trial Court and dismissed the appeal. 6. Being disconcerted and aggrieved by the said judgements and decrees of both the Courts below, this second appeal is focussed on various grounds and also raising the following alleged substantial questions of law: "a) Whether the lower Appellate Court erred in dismissing the appeal without considering Ex.A6 to A9 which are relevant documentary evidence to show that the appellant is in peaceful possession and enjoyment of the suit property for over 40 years? b) Whether the lower appellate Court right in holding that the respondents complied with the direction as per Ex.A23, when Ex.B15 shows that the decision in Ex.A.23 has been not complied with? c) Whether the lower appellate Court misconstrued Ex.B15 by holding that the respondents complied with the direction as per Ex.A23?" 7. Despite printing the name of the appellant, there is no appearance. https://hcservices.ecourts.gov.in/hcservices/ 8. A plain poring over and perusal of the typed set of papers, including the judgements and decrees of both the Courts below, would demonstrate and display, evince and expatiate that the deceased plaintiff-Krishnan occupied an extent of 5 cents of land on the Road side, without any authorisation. When the public officials attempted to remove such encroachment for widening the road, he started giving resistance in multifarious ways. It is also the findings of both the Courts below that the other encroachers were removed, but the plaintiff was resisting. 9. The perusal of the judgement dated 1.9.2003, rendered by this Court in W.A.No.2287 of 2003 would reveal that the authorities concerned were directed to consider the grant of house patta relating to the suit property of five cents, if at all the plaintiff would file an application within a week from the date of the order of the Court and till such finalisation of the petition, he shall not be dispossessed. As such, it is crystal clear that this Court did not direct or order that a patta should be conferred on Krishnan in respect of the suit property. However, in the proposed grounds of second appeal, the appellant would put forth a distorted picture of the order of this Court earlier as though this Court had directed the Highways Department to issue patta. 10. The ground No.3 in the memorandum of grounds of second appeal is extracted hereunder for ready reference. "3. The lower appellate Court ought to have allowed the appeal as this Honourable Court has directed the respondents herein not to disturb the appellant's peaceful possession and enjoyment of the house property until the respondents and high Ways Department issue patta to appellant's house property to an extent of 5 cents at Uppilipalayam Village in Survey No.246." The aforesaid ground of appeal pre-supposes wrongly as though this Court earlier directed the Highways Department to issue patta in favour of the plaintiff and till then there should not be any eviction. 11. The first appellate Court clearly and categorically held that after the passing of the order by this Court, as revealed by Ex.A.23-the Collector issued G.O.173, as revealed by Ex.B-14, conferring patta to an extent of five cents of land in a different area, because the suit property is on the road margin and it is required for expansion of the road. Howevr, Krishnan's wife-the second plaintiff-Pechiammal refused to receive the patta. The lower Court correctly analysed the evidence put forth by the public officials that no patta could be conferred concerning the suit property, as that would be detrimental for road expansion. https://hcservices.ecourts.gov.in/hcservices/ 12. At this juncture my mind is reminiscent and redolent of the following maxim: "Privatorum conventio juri publico non derogat" which means 'If the thing stipulated for is in itself contrary to law, the paction by which the execution of the illegal act is stipulated must be held as intrinsically null." 13. However, in this case, the position is much the worse as Krishnan had no private right at all to occupy the suit property and he was an encroacher. Both the Courts below, by analysing the documents produced on either side arrived at the conclusion that at no point of time Krishnan was authorised to occupy the road margin. In fact, the attitude of the public officials by way of respecting this Court's order, by allotting one other site measuring 5 cents in favour of Krishnan, who happened to be a freedom fighter, is appreciable. But, the deceased Krishnan's wife and daughter did not realise the same and they are unable to see the wood for the tree. As such, their insistence to squat in the encroached portion is antithetical to the existing Laws as well as the welfare of the public. 14. It appears, the officials initiated action under the Land Encroachment Act and in order to stall the proceedings, Krishnan and his descendants are indulging in this sort of litigation and that should not be encouraged. 15. In view of my discussion supra, the proposed substantial questions of law (a) as though the lower appellate Court has not considered Ex.A6 to Ex.A9 is totally untenable and the appellant cannot try to squat on the property simply on the alleged ground that Krihnan and his descendants have been in possession and enjoyment of the suit property for over forty years. 16. Substantial questions of law (b) and (c): These questions of law does not arise because by misinterpreting the earlier order of this Court, those grounds of appeal emerged. 17. At this juncture, my mind is reminiscent and redolent 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 https://hcservices.ecourts.gov.in/hcservices/ 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." https://hcservices.ecourts.gov.in/hcservices/ 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- 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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. https://hcservices.ecourts.gov.in/hcservices/ 18 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 Principal District Judge, Coimbatore. 2. The Principal District Munsif, Coimbatore. 3. The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.A.Booblie, Advocate, SR.8994. S.A.No.191 of 2009 SSN(CO) RVL 22.04.2009 https://hcservices.ecourts.gov.in/hcservices/