IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.743 of 2011 Sabapathy .. Appellant/Plaintiff vs. 1. Shanthanalakshmi 2. Gandhimathi .. Respondents/Defendants This Second Appeal is focussed as against the judgment and decree of the Additional Sub Court, Mayiladuthurai, dated 30.07.2010 passed in A.S.No.12 of 2009 confirming the judgment and decree of the Additional District Munsif Court, Mayiladuthurai, dated 03.11.2008 passed in O.S.No.24 of 2008. For appellant : Mr.S.Sounthar JUDGMENT This Second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 30.07.2010 passed in A.S.No.12 of 2009 by the Additional Subordinate Judge, Mayiladuthurai, confirming the judgment and decree of the Additional District Munsif, Mayiladuthurai, in O.S.No.24 of 2008. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A re'sume' of facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff/appellant herein filed the suit seeking the following reliefs: "kapyhLJiw Tljy; khtl;l chpikapay; eLth; ePjpkd;wk; m/t/vz;/160-2005y; Vw;gl;l jPh;g;g[ kw;Wk; jPh;g;ghizahdJ thjpia kpul;oa[k; tYf;fl;lhakhft[k; bgwg;gl;ljhft[k; rl;lg;go bry;yj;jf;fjy;y kw;Wk; ,y;yh epiyaJ vd uj;J bra;Jk; mjid 1. 2 gpujpthjpfs; jhth brhj;jpid ntW ahhplnkh rhrdnkh ve;j tpy;y';fnkh jhth brhj;jpw;F Vw;gLj;jf;TlhJ vd xU epue;ju cWj;Jf; fl;lis ghpfhuKk; tH';fpl ntz;Lkha[k;/@ (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-Sabapathy examined himself as P.W.1 along with P.W.2-Chandran and Exs.A1 to A6 were marked. The first defendant-Santhanalakshmi examined herself as D.W.1 and Exs.B1 to B5 were marked. (e) Ultimately the trial Court dismissed the suit, as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 3. Being aggrieved by and dissatisfied with the said judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds and also suggesting the following substantial questions of law: "1. Whether the judgments of Lower Courts are liable to be set aside as perverse in its not considering material admissions of D.W.1? 2. Whether the judgment of lower appellate Court is liable to be set aside in its failure consider the evidence on record independently?" (extracted as such) 4. Heard the learned counsel for the appellant. 5. The learned counsel for the appellant would submit that both the Courts below committed error in dismissing the plea of the plaintiff and simply rejected his case as though he voluntarily submitted to decree in the earlier suit filed by D2. He would also reiterate what are all stated in the grounds of Second Appeal. 6. I fumigate my mind with the principles as found enshrined in the following decision: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. https://hcservices.ecourts.gov.in/hcservices/ 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 7. A mere poring over and perusal of those excerpts including the whole judgment would reveal that perversity or illegality in the findings of the Courts below or failing to apply the correct law or mis-reading or non-reading of the evidence would warrant interference in Second Appeal. 8. It has to be seen as to whether there is any perversity or illegality in the judgments rendered by both the Courts below. 9. The indubitable and indisputable, or atleast the undeniable facts would run thus: The appellant/plaintiff herein was originally the owner of the suit property. According to the defendants, the plaintiff executed voluntarily settlement deed on 06.12.2004. Subsequently, he executed a cancellation deed dated 07.03.2005. Whereupon, D2 herein filed the suit O.S.No.160 of 2005 for cancelling the said cancellation deed and in that alone, according to D2, the plaintiff appeared and submitted to decree after engaging an Advocate and also filing a memo. However, according to the plaintiff, in the present suit, the said alleged consent memo was not voluntarily executed by him; by manipulation and filling up certain blank signed paper by him, such memo was fabricated and filed in the previous litigation initiated by D2. 10. Both the Courts below gave a concurrent finding to the effect that the said Advocate Shankaran who appeared for the plaintiff herein in the earlier suit was not only an Advocate who appeared for him in that case, but he appeared for the same plaintiff herein in very many cases also. It was also he who drafted the Will of the plaintiff etc. As such it is a clear finding on facts. If at all anything as alleged by the plaintiff herein, had happened as against him, then his conduct would have been entirely different and both the Courts below felt that his conduct was not above board and he did not prove his case. In fact, he went to the extent of pointing out that D2 was not examined in the present suit, for which the trial Court pointed out that it was not for the plaintiff to dictate terms to the defendants and the onus of proof was on the plaintiff to prove his case which he failed to prove. The onus of proof was not discharged by the plaintiff and to that effect findings of fact were given consistently by both the Courts below and in that https://hcservices.ecourts.gov.in/hcservices/ I could see no perversity or illegality. Witnesses might lie, but the circumstances will not lie. Here in addition to the available evidence, the Courts below also took into account the various circumstances and ultimately decided the lis to the effect that the plaintiff had not approached the Court with clean hands. Hence I could see no question of law much less substantial question of law involved in this matter. 11. In the result, this Second Appeal is dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Additional Subordinate Judge, Mayiladuthurai. 2. The Additional District Munsif Court, Mayiladuthurai. 1 cc To Mr.S.Sounthar, Advocate, SR.38114. S.A.No.743 of 2011 KGK(CO) RVL 10.08.2011 https://hcservices.ecourts.gov.in/hcservices/