IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.803 of 2011 D.Mohana ... Appellant/Defendant vs. T.Vedagiri ... Respondent /Plaintiff This Second Appeal is focussed as against the judgment and decree dated 29.10.2009 passed by the IV Additional Judge, City Civil Court, Madras, in A.S.No.148 of 2009 confirming the judgment and decree dated 25.82008 passed by the XVI Assistant Judge, City Civil Court, Madras, in O.S.No.6081 of 2007. For appellant : Mr.M.Rajaraman For respondents : Mr.A.Prabhakaran JUDGMENT This Second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 29.10.2009 passed by the IV Additional Judge, City Civil Court, Madras, in A.S.No.148 of 2009 confirming the judgment and decree dated 25.82008 passed by the XVI Assistant Judge, City Civil Court, Madras, in O.S.No.6081 of 2007, which was filed for recovery of possession. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs: "a. to direct the defendant to quit and delivery of vacant possession of the suit schedule mentioned property to the plaintiff; and b. to pay the cost of the suit."(extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 and Exs.A1 to A6 were marked. On the defendant's side no one was examined and no document was marked. (e) Ultimately the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 4. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this second appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law: "1.Are the Courts below right in granting the relief of possession to the respondent when the respondent had specifically deposed before the Court in O.S.No.1898 of 2003 that he never wanted the appellate to vacate from the suit property? 2. Are the Courts below right in granting the relief of possession, when especially the respondent had not placed any legal evidence to support the cause of action?" (extracted as such) 5. The indubitable and indisputable or atleast the undeniable facts would run thus: (i) The respondent/plaintiff is the younger brother of the appellant/defendant. The suit property originally belonged to their father. On his death, the plaintiff, the defendant and one other sister of the plaintiff became the legal heirs. Subsequently, in favour of the plaintiff, the defendant and one other sister relinquished their right over the suit property by executing a release deed. However, the defendant herein filed subsequently a suit for partition, which was dismissed on the ground that she already released her right over the suit property. Thereafter, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff did choose to file the present suit, as against which, the second appeal has arisen. (ii) Both the Courts below believed the version of the plaintiff that the licence granted in favour of the defendant to occupy a portion of the suit property was revoked by the plaintiff and that he sought for vacating the premises, but the defendant failed to do so. 6. The contention of the defendant is to the effect that in the partition suit, which was dismissed, the defendant herein, who was the plaintiff therein, pleaded that her occupation i.e. the occupation of the defendant herein was that of a permissive occupier for life, and now, by having a volte face and turning turtle, the plaintiff herein has chosen to file the suit for eviction. But such a plea did not find favour with by both the Courts below. 7. It is a pure finding of fact by the Courts below. At this juncture, I hark back to the principles as found embodied in the following judgement of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the 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." and the other precedents emerged in this regard. (ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. 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 https://hcservices.ecourts.gov.in/hcservices/ defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 8. A bare perusal of the above precedents would exemplify and demonstrate that unless there is any perversity or illegality in the decisions rendered by the Courts below, the question of interfering in second appeal on the finding of facts would not arise and there should be valid legal grounds also for interference. 9. The learned counsel for the defendant, who is the appellant herein, would submit that the deposition of the plaintiff herein, so to say, the defendant therein in the previous suit O.S.No.1898 of 2003 was quite antithetical to his stand in the present suit, which the Courts below failed to take note of. 10. I am of the view that there is no question of law much less substantial question of law is involved in the second appeal, because such a plea is only a question of fact and the trial Court as well as the first appellate Court discussed in entirety the pros and cons of the matter and held that any version given by the plaintiff in the previous suit as defendant in no way stood in the way of his claiming possession, after cancelling the licence. There is nothing to indicate and exemplify that the defendant got any permission from the plaintiff to occupy the suit property for her life. On par with permanent lease, the defendant could not prove anything, like permanent license in her favour, to occupy the suit property. Hence, I am of the considered view that there is no perversity or illegality in the findings rendered by the Courts below. There is no question of law much less substantial question of law is involved in the second appeal. Accordingly, the second appeal is liable to be dismissed. 11. In the result, the second appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. 12. The learned counsel for the appellant/defendant would make an extempore submission that the appellant/defendant being an old lady cannot holes-boles leave the suit property and go somewhere else and hence, he prays for sufficient time, so to say, till the end of this year for vacating the premises and handing over possession to the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 13. I could see considerable force in his submission and accordingly, time is granted till the end of this year, so to say, till the end of December 2011, by that time, the appellant/defendant should vacate the premises and hand over vacant possession to the plaintiff. To that effect, an affidavit shall be filed by the appellant/defendant within a period of 15 days from this date. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1. The IV Additional Judge, City Civil Court, Madras. 2. The XVI Assistant Judge, City Civil Court, Madras +1 CC to Mr.A.Prabhakaran, Advocate, S.R.No.36300 +1 CC to Mr.M.Raja Raman, Advocate, S.R.No.36205 S.A.No.803 of 2010 SJ(CO) SRA(6/7/2011) https://hcservices.ecourts.gov.in/hcservices/