IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.Nos.960 to 962 of 1998 In S.A.Nos.960 & 961 of 1998: Sundarambal : Appellant/Plaintiff in both SAs vs. Venkatesa Padayachi : Respondent/Defendant in SA 960/98 Venkatesan : Respondent/Defendant in SA 96/98 In S.A.No.962 of 1998: Sundarambal : Appellant/Plaintiff vs. 1.Venkatesa Padayachi 2.The Commissioner, Sirkali Municipality, having his office at Sirkalai Town & Munsif : Respondents/Defendants Prayer in S.A.No.960 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the decree and judgment, dated 08.07.1997 of the Principal Subordinate Judge, Mayiladuthurai in A.S.No.34 of 1992 reversing the decree and judgment, dated 21.02.1992 of the District Munsif, Sirkali in O.S.No.127 of 1982. Prayer in S.A.No.961 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the decree and judgment, dated 08.07.1997 of the Principal Subordinate Judge, Mayiladuthurai in A.S.No.74 of 1992 reversing the decree and judgment, dated 21.02.1992 of the District Munsif, Sirkali in O.S.No.174 of 1987. Prayer in S.A.No.962 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the decree and https://hcservices.ecourts.gov.in/hcservices/ judgment, dated 08.07.1997 of the Principal Subordinate Judge, Mayiladuthurai in A.S.No.73 of 1992 reversing the decree and judgment, dated 21.02.1992 of the District Munsif, Sirkali in O.S.No.181 of 1986. For Appellant : Mr.P.K.Sabapathy For Respondent in S.A.960 & 961/1992 For 1st Respondents in S.A.962 of 1992 : Mr.A.Muthukumar COMMON JUDGMENT The plaintiff, who was successful in the trial Court and lost in the First Appellant Court is the appellant herein. 2.The plaintiff/appellant in all the three appeals are one and the same person. 3.The dispute, in these appeals, is in respect of the eastern wall of the plaintiff's house. O.S.No.127 of 1982 was filed by the plaintiff/appellant for declaration of his title to the 'A' schedule property and for recovery of possession of 'B' schedule property, after removing the superstructure viz., Brick-wall put up by the plaintiff. 4.The case of the plaintiff in the suit was that the 'A' schedule property is a house and the eastern wall of the house also belongs to him exclusively and he is also having an extent of 102 square feet east of the 'A' schedule property, which is described as 'B' schedule property and the defendants have no title or possession of the same and the defendant had encroached upon the 'B' schedule property and constructed a wall and therefore, suit was filed for declaration and for recovery of 'B' schedule property. 5.O.S.No.181 of 1986 was filed by the plaintiff against the respondent and another, the Commissioner, Sirkali Municipality for injunction restraining the 2nd defendant from granting permission to the first respondent/first defendant to demolish the plaintiff's eastern wall or to do any other act affecting the plaintiff's right and O.S.No.174 of 1987 was filed by the plaintiff for declaration that the plaintiff has got an easementary right to discharge the water of the plaintiff eastern wari on the east of the plaintiff wall on the defendant's side and for direction, directing the defendant to remove his newly constructed western wall, which is adjourning the plaintiff's eastern wall. 6.A reading of the plaints, in all the suits, would make it clear that the plaintiff claims title to the eastern wall and also https://hcservices.ecourts.gov.in/hcservices/ claims title on some portions east of his eastern wall and sought for demolition of the wall put up by the defendant in the portion belonging to the plaintiff and for recovery of possession of the property from the defendant and also claimed easement right over the same. 7.The case of the parties in these appeals are as follows:- Originally, the suit property and the larger extent belonged to Abdul Razack and others and under a deed of exchange, dated 16.11.1952, an extent of 14 feet east-west and 128 feet north-south was given by Abdul Razack in favour of his brother A.Sheik Ismail. It is further admitted that the total extent of the property, that was in the possession and enjoyment of Abdul Razack was an extent of 42 feet east-west and 128 feet north-south and out of the total extent of 42 feet east-west, 14 feet east-west on the western portion was given in exchange to A.Sheik Ismail and from Sheik Ismail, that property was purchased by the plaintiff, under a registered sale deed 15.10.1980 and in the sale deed in favour of the plaintiff Ex.A1, it has been clearly stated that the eastern wall belongs to the plaintiff and the plaintiff is entitled to 14 feet east-west and as per the Commissioner's report, the east-west measurement of 14 feet would go upto the wall constructed by the defendant east of the plaintiff's eastern wall and therefore, the defendants have encroached upon the plaintiff's property and constructed a wall and that has to be demolished and the suit has to be decreed. 8.On the other hand, the case of the defendant was that the entire extent of 42 feet east-west and 120 feet north-south was surrounded by lane on the eastern side and the western side and it was stated in the original document of title that the measurement of 42 feet x 120 feet included the lane and without measuring the property from the lane, the Commissioner and Surveyor measured the property from the western wall of the plaintiff and that was the reason for the confusion and having measured east-west measurement from the plaintiff's western wall, the Commissioner found that the wall constructed by the defendant east of the plaintiff's eastern wall was within the distance of 14 feet and therefore, it is contended by the plaintiff that the wall constructed by the defendant was an encroachment and the plaintiff is having right over the same. It is further contended that had the property been measured from the lane it would have been found out that the plaintiff has no property east of the eastern wall and that portion belonged to the defendant and that was not properly appreciated by the Courts below. It is further contended that out of the 42 feet east-west, western 14 feet, including the lane on the western side was given to the plaintiff's vendor under Ex.A2 and after the exchange deed Ex.A2, the plaintiff's vendor mortgaged the property to the plaintiff under Ex.A4 and prior to the said deed Ex.A4, there was an agreement of sale between the plaintiff and his vendor under Ex.A5 and in Exs.A4 and 5, it has not https://hcservices.ecourts.gov.in/hcservices/ been stated that eastern wall is the exclusive wall of the plaintiff and only for the first time, in Ex.A1 the exclusive right of the eastern wall was given to the plaintiff and therefore, the plaintiff cannot claim any right over the eastern wall. The trial Court accepted the case of the plaintiff and decreed the suit as prayed for and the First Appellate Court set aside the findings of the trial Court and held that the plaintiff was not entitled to declaration and the plaintiff's eastern wall is not the exclusive wall of the plaintiff and the plaintiff has no right over any extent of the property that is situate east of the wall and the measurement given by the Commissioner cannot be accepted, as the Commissioner has not measured the property from the lane, which was also conveyed and therefore, the plaintiff is not entitled to declaration and other reliefs as prayed for and allowed the appeal. 9.At the time of admission, the following substantial questions of law were framed by this Court:- 01.Whether documentary evidence could be excluded by oral evidence? 02.Whether the testimony of the Executive Magistrate be deemed to be that of an interested or partisan witness if the party calling him as a witness happens to be a Government servant's relative? 03.Whether the Court of appeal has power to examine the Commissioner in case of any ambiguity in his report or to remand the case for recording evidence to clear the ambiguity? 10.Heard both sides. 11.According to me, the substantial questions of law framed by this Court, at the time of admission, cannot be considered as substantial questions of law, in the light of the judgments of the Hon'ble Supreme Court reported in 2009(1) LW 1 in the case of State Bank of India & others vs. S.N.Goyal, (2006)5 SCC 545 in the case of Hero Vinoth (Minor) vs. Seshammal and 2008(4) Scale 300 in the case of Kashmir Singh vs. Harnam Singh & another. 12.In the judgment reported in (2006)5 SCC 545, in the case of Hero Vinoth (Minor) vs. Seshammal and in 2008(4) Scale 300 in the case of Kashmir Singh vs. Harnam Singh & another, the Hon'ble Supreme Court has laid down the principles relating to section 100 CPC as follows:- (i)An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of https://hcservices.ecourts.gov.in/hcservices/ law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii)The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (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-recognized 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, when the evidence, taken as a whole, is not reasonable capable of supporting the finding.” 13.Further in the judgment reported in 2008(4) Scale 300, in the case of Kashmir Singh vs. Harnam Singh & another held as follows:- “A.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. It satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not https://hcservices.ecourts.gov.in/hcservices/ formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. B.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 the 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. C.The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assured jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. https://hcservices.ecourts.gov.in/hcservices/ D.The phrase “substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law” means of having substance, essential, real, of sound worth, important or considered. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen important not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as 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. E.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 is 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.” 14.Considering the principles laid down by the Hon'ble Supreme Court in the above judgments, in my opinion, the substantial questions of law framed at the time of admission, cannot be treated as substantial questions of law. 15.According to me, no substantial questions of law arising for consideration in these second appeals and the Lower Appellate Court has rightly appreciated the oral and documentary evidence and dismissed the suit and allowed the first appeal. 16.The specific case of the plaintiff was that the property was originally owned by Abdul Razack and another and under Ex.A2, eastern https://hcservices.ecourts.gov.in/hcservices/ portion measuring an extent of 14 feet east-west was given in exchange to the plaintiff's vendor and thereafter, the plaintiff purchased the property under Ex.A1 from his vendor. A reading of Ex.A2 would make it clear that what was conveyed to the plaintiff's vendor was an extent of 14 feet east-west, which includes the lane. In, Ex.A2, it has been stated that the total extent of the property is having lane on the eastern and western side and the property includes the lane also. The specific words used are:- “Bky;g[wk; Xl;L jhH;thuk; fPH;g[uk; Bky;g[uk; re;J cl;gl.” Therefore, the total extent of the property includes the lane on the eastern and western side. Under Ex.A2 western portion having an extent of 14 feet east-west was conveyed to the plaintiff's vendor. While describing that portion, it has been stated that Bky; ghfk; cs;s fl;ol ghfk; mjhtJ Bky;g[wk; cs;s re;jpy; nUe;J fpHBky; $hjpao 14 bjd;tly; $hjpao 128 cs;s fl;ol ghfKk;. In Ex.A2, it was not stated that eastern wall was the exclusive wall of the plaintiff's vendor and that was conveyed to the plaintiff's vendor and under Ex.A2 out of the total extent of 42 feet east-west, which includes the lane on both sides, 14 feet east-west on the western side including the lane was conveyed. Ex.A4 was the mortgage created by the plaintiff's vendor in favour of the plaintiff and in that document also, there was no mention about the eastern wall exclusively belonged to the plaintiff's vendor. The same recital regarding the extent and boundary as mentioned in Ex.A2 was stated in Exs.A4 and A5 and only for the first time, in Ex.A1 viz., plaintiff's Sale Deed, it was stated that eastern wall and western wall belongs to the plaintiff exclusively. Even in Ex.A1, it has been specifically stated that the suit property includes the western lane. Therefore, the property that was conveyed to the plaintiff measuring an extent of 14 feet east-west starts not from the western wall of the plaintiff's house, but from the lane that is situated west of the suit property and without noticing the same, the Commissioner measured the property from the western wall of the plaintiff's house and found that 14 feet extend upto the defendant's newly constructed eastern wall and therefore, the eastern wall of the plaintiff belongs to him exclusively the plaintiff is also having right over a portion of land situated east of his eastern wall. Had the Commissioner measured the property in the middle of the property on the eastern that mistake could not have happened. Therefore, having regard to the recitals in Exs.A2, 4 and 5 wherein there was no claim to the exclusive right over the eastern wall was given to the plaintiff and the measurement was given by taking into consideration the lane portion also, it was rightly held by the Lower Appellate Court that the plaintiff has not proved his right or title over the wall, that was constructed by the defendant and the defendant has constructed the wall within his own property and the plaintiff has not proved her title to his eastern wall. Once the plaintiff has no title to the eastern wall, she is not entitled to the declaration and the other relief claimed in the other suits. Hence, I do no see any substantial questions of law in these second appeals and the First Appellate Court has rightly appreciated https://hcservices.ecourts.gov.in/hcservices/ the oral and documentary evidence and allowed the appeal and dismissed the suit. 17.In the result, these second appeals fail and the same are dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar er To, 01.The District Munsif, Sirkali. 02.The Principal Subordinate Judge, Mayiladuthurai. 1 cc To Mr.A.Muthukumar, Advocate, SR.35038 1 cc To Additional Government Pleader Advocate, SR.34905 common judgment made in S.A.Nos.960 to 962 of 1998 GS(CO) RH (13.9.11) https://hcservices.ecourts.gov.in/hcservices/