IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.133 of 2006 1.Pormannan 2.Porsaravanan 3.Raghupathy 4.Vinayagam ... Appellants/ Defendants vs. P.Thiagarajan ... Respondent / Plaintiff This second appeal is filed against the judgement and decree dated 24.6.2005 passed by the Additional Subordinate Judge, Tiruvannamalai, in A.S.No.68 of 2004 confirming the judgement and decree dated 8.1.2002 passed by the Principal District Munsif, Tiruvannamalai, in O.S.No.251 of 1999. For Appellants : Mr.J.Ramakrishnan for M/s. Sarvabhuman Associates For Respondent : Mr.R.Subramanian JUDGMENT This second appeal is focussed by the defendants, animadverting upon the judgement and decree dated 24.6.2005 passed by the Additional Subordinate Judge, Tiruvannamalai, in A.S.No.68 of 2004 confirming the judgement and decree dated 8.1.2002 passed by the Principal District Munsif, Tiruvannamalai, in O.S.No.251 of 1999, which was filed for permanent injunction. 2. For the sake of convenience, the parties are referred to 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 plaintiff filed the suit O.S.No.251 of 1999 for permanent injunction. The defendants filed the written statement and resisted the suit. (b) Whereupon issues were framed. The plaintiff on his side examined himself as Ex.P.W.1 along with Ex.P.W.2 and Exs.A1 to A18 were marked. On the side of the defendants, the second defendant examined himself as Ex.D.W.1 along with D.W.2 and D.W.3 and Exs.B1 to B14 were marked. Exs.C1 and C2 are Court documents. (c) Ultimately, the trial Court decreed the suit. (d) Being aggrieved by and dis-satisfied with the same, the defendants preferred the appeal for nothing but to be dismissed by the appellate Court confirming the judgment of the trial Court. 4. Challenging and impugning the judgements and decrees of both the Courts below, the second appeal has been filed on various grounds, the gist and kernal of them would run thus: (i) The Courts below failed to take into account the oral and documentary evidence in the proper perspective and simply accepted the case of the plaintiff. (ii) The Courts below concentrated much on the alleged defects of the defendants case and failed to see as to whether the plaintiff established his case by producing clinching oral and documentary evidence. In fact, the oral and documentary evidence found on the side of the plaintiff are far from satisfactory, but the Courts below failed to take note of the same. (iii) Sections 101 to 103 of the Indian Evidence Act have not been considered by the Courts below. (iv) The plaintiff ought to have proved his alleged exclusive possession as on the date of filing of the suit, but he has not proved it and the Courts below failed to consider the same. (v) The Courts below wrongly relied upon Ex.C1 and C2-the Commissioner's Report, as the same cannot be relied on for proving possession. The appellate Court also did not adhere to Order 41 Rule 31 of the C.P.C. in rendering the judgment. 5. At the time of admitting the second appeal, my learned predecessor framed the following substantial questions of law: "1. Whether the Courts below are correct in law in shifting the burden of proof upon the appellants in contravention of Sections 101 to 103 of the Evidence Act, 1872? https://hcservices.ecourts.gov.in/hcservices/ 2. When the respondent shad failed to establish his alleged exclusive possession over the suit properties on the date of the suit, whether a decree for injunction can be granted in his favour?" 6. Both these substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with each other. 7. Tersely and briefly the arguements as put forth on the side of the defendants could be set out thus: (a) The Courts below picked holes in the case of the defendants and took it for granted as though the plaintiff approached the Court with a good case. (b) The documents marked on the side of the plaintiff in no way prove that as on the date of filing of the suit, the plaintiff- Thiyagarajan was in possession of the suit property. In fact, the plaintiff, in his deposition during cross-examination candidly and categorically admitted that he could not produce any evidence to prove his possession as on the date of filing of the suit. (c) The Commissioner could not identify the first item of the suit property at all. The Commissioner's report was wrongly relied on to establish the possession of the plaintiff. (d) The Commissioner cannot give any finding relating to the possession of the property by any party. (e) The burden of proof as envisaged under Sections 101 to 103 of the Indian Evidence Act was not kept in mind by both the Courts below in adjudging the lis. (f) Exs.A9 and A.10 were wrongly interpreted and understood by the Courts below. Accordingly, he prays for setting aside the judgments of the Courts below and for dismissing the suit. 8. By way of torpedoing and pulverising the arguements as put forth and set forth on the side of the defendants, the learned counsel for the plaintiff would advance his arguements, which could pithily and precisely be set out thus: (i) Govindasamy Naicker purchased the suit property even as early as in the year 1925 by virtue of a registered sale Deed and he during his life time sold the said property in favour of his daughter Unnamalai Ammal, whereupon she enjoyed it and after her https://hcservices.ecourts.gov.in/hcservices/ death, her children are enjoying the same. The plaintiff is one among them. (ii) Already there is a partition suit pending among the heirs of Unnamalai Ammal relating to various properties including the suit property. At one point of time one of the co-sharers also filed a suit O.S.No.1415 of 1980 before the District Munsif Court, Thiruvannamalai, as against third parties, as evidenced by Ex.A7, relating to the suit property. (iii) In the written statement itself candidly and categorically the defendants stated that they are having no objection relating to item No.1 of the suit property and they contested the suit only relating to item No.2. Consequently, the trial Court framed issues only relating to item No.2 and not relating to item No.1 of the suit properties. Now, it is too late in the day on the part of the defendants to raise in the second appeal objections relating to the first item of the suit property. (iv) The documents relied on by the plaintiff are mostly ancient documents and accordingly, those documents were rightly taken note of by the Courts below and gave their findings, warranting no interference in Second appeal. (v) No question of law much less substantial question of law arises for consideration in this second appeal and accordingly, he prays for dismissal of the second appeal. 9. Before discussing the rival contentions put forth on either side, I fumigate my mind with 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 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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. https://hcservices.ecourts.gov.in/hcservices/ (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 10. A plain reading of those precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved. 11. Keeping the aforesaid dicta of the Honourable Apex Court, I proceed to analyse and scrutinize the case in the second appeal. 12. The Courts below referred to all the documents and oral evidence in consistently and logically holding that the plaintiff established his possession over the suit property, whereas the defendants have not proved their case. 13. At this juncture I recollect and call up the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. The cumulative effect of those two maxims are to the effect that the person who affirms should prove it. 14. No doubt, the cumulative reading of Sections 101 to 103 of the Indian Evidence Act would highlight and spotlight the fact that the initial burden is always on the plaintiff who asserts certain facts. It has to be seen as to whether the Courts below properly conducted themselves in analysing the evidence. 15. On the side of the plaintiff as many as 18 documents were marked and the plaintiff examined himself as P.W.1 along with P.W.2, so as to buttress and fortify his contentions. Ex.A1-the Sale deed in favour of Govindasamy Naicker would refer to Survey No.1890/1 measuring a total extent of 15.20 acres and out of that one acre happened to be the subject matter of purchase by Govindasamy Naicker. Subsequently, Ex.A3-the Sale deed executed by Govindasamy Naicker in favour of his daughter Unnamalai Ammal would reveal that he sold two items of properties bearing Sub-Division No.1A measuring an extent of one acre and Sub-Division No.1B measuring an extent of 2 acres in S.No.1890. As such, it is the contention of the plaintiff that Govindasamy Naicker, after purchasing under Ex.A1 an extent of one acre, by enjoyment enlarged his possession and thereafter, sold the said two portions in favour of his daughter. Ex.A4 is the memorandum dated 21.9.1953 issued by https://hcservices.ecourts.gov.in/hcservices/ Revenue Department in the name of the said Unnamalai Ammal relating to Survey No.1890. 16. The learned counsel for the defendants would submit that the contention of the defendants is that only 15 years anterior to the date of filing of the suit, say to say, during the year 1999, the defendants entered into the second item of the suit property and started enjoying the same and in such a case, they are not concerned with the documents produced on the side of the plaintiff, but the defendants positively, as per them, produced documents to prove their possession. 17. The learned counsel would place reliance on Ex.B1-the provisional Registration Certificate issued by the Industries Department in respect of the 4th defendant's Brick kiln and that would refer to S.No.1890 and not to any particular sub division. However, in Ex.B2 which emerged after the filing of the suit, there is reference to Survey No.1890/1B4. 18. I recollect the principle 'Ante litem motam'; accordingly, documents which emerged anterior to the emergence of dispute alone could be placed reliance, but those which emerged after the arisal of the dispute should be looked askance at, as either side may try to raise their accusative fingers as against such documents, which are not conducive to their respective cases as though those documents are self-serving documents brought about purely for the purpose of buttressing and fortifying their respective cases. 19. The kist receipts produced by the plaintiff also ex facie in no way demonstrate and display would show that they relate to the suit property concerned. The fact remains that as evidenced by Exs.A9 and A10, the first defendant earlier filed the suit O.S.No.373 of 1990 before the District Munsif, Tiruvannamai, as against the Government claiming right over a large extent of land measuring 15 acres and odd in Survey No.1890/1(now 1B). The learned counsel for the plaintiff would draw the attention of this Court to the fact that the plaintiff was not a party to the said suit. Furthermore, the evidence of D.W.1 herein-the plaintiff therein in the said suit O.S.No.373 of 1990 would clearly exemplify and convey that the suit property involved in that suit O.S.373 of 1990 do not relate to the suit property herein and furthermore, the suit property referred to therein is stated to have situated to the south of the suit property in this suit and by that, the first defendant herein himself candidly and categorically admitted that Exs.A9 and A10 do not relate to the suit property herein. 20. The learned counsel for the defendants would try to canvas the point to the effect that if such an argument is sought to be https://hcservices.ecourts.gov.in/hcservices/ put forth on the side of the plaintiff, then in toto he should not rely upon Exs.A9 and A10 and he cannot approbate and reprobate, after finding fault with the description of property in Exs.A9 and A10 and that the plaintiff cannot place reliance on the Northern boundary of the suit property referred to in the said suit No.373 of 1990. 21. The learned counsel for the defendants drawing the attention of this Court to the evidence of P.W.1 would try to canvass the case of the defendants that the plaintiff himself during cross examination admitted that he could not produce any evidence to prove his possession as on the date of filing of the suit, but, the Courts below failed to take note of the same. 22. Whereas, the learned counsel for the plaintiff would appropriately and appositely, correctly and convincingly highlight the proposition that the entire deposition should be read and not a part of a sentence or a single sentence in isolation to understand the evidence as contained in a deposition. A reading of the whole deposition of P.W.1-the plaintiff, would convey and project the impression that the plaintiff and his predecessor in title have been in possession for several decades and placing reliance on that he claims right over the property and his version during cross examination in a particular sentence could be construed only to the effect that in his individual name exclusive possession was not exemplified in the documents and such a factual reality would not in any way be fatal to the plaintiff, who claims title based on his predecessor's title. 23. At this juncture, I recollect the following maxim: Jus superveniens auctori accrescit successori : A right accruing to the one in possession continues in favour of his successor. As such, the plaintiff is entitled to place reliance on the documents in the name of his predecessors in title. 24. I am of the view that the evidence of D.W.1 himself in this suit clarifies the position that the suit property referred to in the previous suit does not relate to the suit property in this suit and in such a case, reference to the Northern boundary in the description of the suit property in the previous suit can rightly be pressed into service by the learned counsel for the plaintiff. If really the defendants 15 years ago, so to say, a decade and half, anterior to the filing of the suit entered into the suit property and started using it for his brick kiln, then certainly they must be having B-memo in their favour, but no such B-memo issued by the Revenue Department could be produced by them. https://hcservices.ecourts.gov.in/hcservices/ 25. The suit property is admittedly a poramboke land and in such a case, the question of kist does not arise and only payment of penalty would arise. It is common knowledge that the Revenue officials are expected to collect penalty only incommensurate with B-memo issued and they cannot also collect penalty from Tom, Dick or Harry in respect of a poramboke land. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil matters. 26. Here the preponderance of probabilities, from the above discussion, is in favour of the plaintiff and not in favour of the defendants. As such, both the Courts below taking into consideration the pros and cons of the matter arrived at a just conclusion, warranting no interference in appeal and they also adverted to the principle governing burden of proof in stricto sensu in accordance with Sections 101 to 103 of the Indian Evidence Act. Hence, I am of the view that the second appeal is liable to be dismissed. 27. In view of the ratiocination adhered to above, substantial questions of law are decided as under: Substantial question of law (i) is decided to the effect that the Courts below properly adhered to the principle governing burden of proof as found envisaged in Sections 101 to 103 of the Indian Evidence Act. Substantial question of law (ii) is decided to the effect that the Courts below taking into account the documents available on the plaintiff's side held that as on the date of filing of the suit, the plaintiff was in possession and accordingly granted injunction, warranting no interference in second appeal. Accordingly, the second appeal is dismissed. However, there is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Msk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Subordinate Judge, Tiruvannamalai. 2. The Principal District Munsif, Tiruvannamalai. 1 cc to Mr.R. Subramanian, Advocate, Sr. 88132 1 cc to M/s. Sarvabhuman Associates, Advocate, Sr. 88111 S.A.No.133 of 2006 JSV (CO) kk 21/4 https://hcservices.ecourts.gov.in/hcservices/