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The Code Of Civil Procedure (Amendment) Act, 2002
The Indian Penal Code
Article 133(1)(a) in The Constitution Of India 1949
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951
Santosh Hazari vs Purushottam Tiwari (Dead) By Lrs on 8 February, 2001

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Madras High Court
J.Sivakami vs R.Xavier on 16 December, 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:16.12.2010

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A.Nos.1705 & 1706 of 2008

and

M.P.No.1 of 2008(in both)

J.Sivakami ... Appellant in S.A.No.1705 of 2008

1.M.Jayaraman

2.Meena

3.J.Sivakami

4.Lilly

5.J.Dinakaran ... Appellants in S.A.No.1706 of 2008

vs.

R.Xavier ... Respondent in both the S.As.

These second appeals are filed against the judgements and decrees dated 31.10.2008 passed by the II Additional Judge, City Civil Court, Chennai, in A.S.Nos.130 and 131 of 2008 confirming the judgments and decrees dated 19.11.2007 passed by the 4th Assistant Judge, City Civil Court, Chennai, in O.S.Nos.2955 of 2004 and 6495 of 2005. For Appellants : Mr.G.Karunakaran

For Respondent : Mr.K.P.Gopalakrishnan

COMMON JUDGMENT

These second appeals are focussed animadverting upon the judgements and decrees dated 31.10.2008 passed by the 2nd Additional Judge, City Civil Court, Chennai, in A.S.Nos.130 and 131 of 2008 confirming the judgments and decrees dated 19.11.2007 passed by the 4th Assistant Judge, City Civil Court, Chennai, in O.S.Nos.2955 of 2004, which was the suit for permanent injunction filed by the appellant in S.A.No.1705 of 2008 and 3rd appellant in S.A.No.1706 of 2008 and O.S.6495 of 2005, which was the suit for eviction and obtaining delivery of possession of the suit property, by the respondent in both these second appeals.

2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these second appeals would run thus:

(i) Sivagami-the sold appellant in S.A.No.1705 of 2008 and 3rd appellant in S.A.No.1706 of 2008 happened to be the plaintiff in O.S.No.2955 of 2004, which was one for seeking injunction, so as to restrain the respondent-Xavier-the respondent in both the second appeals, from evicting her. (ii) Xavier-the respondent in both the second appeals herein filed the suit O.S.No.6495 of 2005 before the IV Assistant Judge, City Civil Court, Chennai, seeking eviction and for obtaining delivery of possession of the suit property, which is found described in the schedules appended to in both the plaints concerning the aforesaid two suits. In other words the suit property is common in both the suits. (iii) Xavier/the plaintiff in O.S.No.6495 of 2005 would contend that earlier the entire property referred to in the schedule of the plaint was allotted to his father-Joseph Raja by the Slum Clearance Board. After his death, the property devolved upon him and his sister-Prema. While so, the said Prema, on receipt of a sum of Rs.25,000/- from Xavier, issued 'no objection certificate' for issuing Sale Deed in favour of Xavier, by the Slum Clearance Board. (iv) Whereupon, Xavier also paid the entire sale consideration in favour of the Slum Clearance Board and obtained the sale deed dated 22.9.2000 from the Slum Clearance Board. (v) Sivagami-the appellant in S.A.No.1705 of 2008 (plaintiff in O.S.No.2955 of 2004) along with others, namely, Jeyaraman, Tmt.Meena, Tmt.Lalli and Dinakaran, who are also appellants in S.A.No.1706 of 2008, happened to be residing in a portion in the property referred to in the plaint and it appears, bad blood started running in the relationship of the said Xavier on the one side and the appellants herein on the other side and as such, Xavier revoked the permission to occupy given to them and sought for eviction. (vi) Inasmuch as there was non-compliance on the part of the appellants therein, the aforesaid two suits emerged, one at the instance of Sivagami for injunction and another at the instance of Xavier for obtaining delivery of possession of the suit property. Both the suits were resisted by the respective defendants. (vii) Whereupon issues were framed and a joint trial was conducted. On the side of Sivagami, she examined herself as P.W.1 and marked Exs.A.1 to A5. On Xavier's side, he examined himself as D.W.1 along with D.W.2 and marked Exs.B.1 to B11. (viii) Ultimately, the trial Court by a common judgment dismissed the injunction suit (O.S.No.2955 of 2004) filed by Sivagami and decreed the suit (O.S.No.6495 of 2005) filed by Xavier. (ix) Being aggrieved by and dissatisfied with the common judgment and decrees rendered by the trial Court, two appeals were filed before the II Additional Judge, City Civil Court, Chennai, for nothing but to be dismissed by the appellate Court, confirming the common judgment and decree of the trial Court.

3. Challenging and impugning the common judgment and decrees in both the appeals, these two second appeals have been filed on various grounds, the gist and kernal, the piths and marrow of them would run thus: (a) The Courts below fell into error in not considering the fact that Prema had no necessity to obtain a sum of Rs.25,000/- from her brother-Xavier, in connection with the alleged marriage of her daughter. (b)The alleged borrowal is stated to have taken place during the year 1996, whereas, the marriage of the daughter of Prema took place only in the year 2003 and these facts were not taken into consideration by the Courts below. (c) The Slum Clearance Board was not added as a party and that a partition suit also has been filed by Sivagami and others as against Xavier and as such, the appellants would pray for setting aside the judgments of the Courts below and for decreeing the injunction suit filed by Sivaghami and for dismissing the suit filed by Xavier.

4. Reiterating the aforesaid grounds, the learned counsel for the appellants would submit that substantial questions of law are involved in this case as found set out in the memoranda of the grounds of appeals.

5. By way of torpedoing and pulverising the arguements as put forth and set forth on the side of the appellants in the second appeals, the learned counsel for the respondent in both the appeals would advance his arguements, the gist and kernal of them would run thus: (i) The Slum Clearance Board issued the sale Deed Ex.B.8 dated 22.9.2000 in favour of Xavier, even during the life time of Xavier's sister-Prema, who happened to be the mother of Sivagami. (ii) The impleadment of the statutory authority, namely, the Slum Clearance Board, in these proceedings does not arise at all for the reason that the Sale Deed was already executed by the statutory authority and only in respect of a portion of the area covered by the Sale Deed, eviction was sought for and in such a case, there is no illegality or infirmity in the suit filed by Xavier. (iii) There is no substantial question of law involved in these appeals.

Accordingly, the learned counsel for the respondent prays for the dismissal of both the appeals.

6. At this juncture, it is just and necessary to reproduce hereunder the suggested substantial questions of law as found set out in the memoranda of grounds of appeals. "(A) Whether the Courts below are right in dismissing the suit filed by the appellant when it is admitted by the respondent that the appellants herein are the co-owners of the suit property. (B) Whether the courts below are right in held that the appellants are in permissive occupation when there is no evidence to the effect that about the date of possession and date of permission? (C) Whether the courts below are right in held that merely no reply to the Ex.B10 the legal notice issued by the respondent herein that the appellants were in permissive occupants? (D) Whether the Courts below are right in held that when the Tamil Nadu Slum Clearance Board not a party in the suit filed by the respondents herein who is necessary party in the suit? (E) Whether the lower appellate Court is right in held that the appellants were not entitled for the relief as prayed for by them in O.S.No.2955 of 2004 when admittedly there is a suit filed by the appellants for partition and declaration of the sale deed executed in favour of the respondent as null and void on the file of Hon'ble II Assistant City Civil Court, Chennai in O.S.No.4879 of 2008? (extracted as such)

7. 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 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 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.

(iii) 2009-1-L.W.1  STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:

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 in the matter.

8. The proposed substantial Question of Law (A) as suggested by the appellants, is general in nature and it is quite obvious that it cannot be taken as a substantial question of law at all and no more elaboration in this regard is required. However, the appellants would try to put forth as though they happened to be the co-owner of the suit property. Both the Courts below, after analying the facts, arrived at the conclusion that Xavier is armed with the valid Sale Deed executed by the statutory authority and in such a case, the question of entertaining the plea of co-ownership and all would not arise. As against such clear finding of fact, there is not even any remote possibility of formulating any substantial question of law would arise. As such, the proposed substantial question of law (A) does not arise.

9. The proposed Substantial question of laws (B) and (C): These are based on factual findings rendered by the Courts below; accordingly no substantial question of law could be formulated. The trial Court found that the Slum Clearance Board executed a valid Sale Deed in favour of Xavier and accordingly proceed to decree the suit O.S.No.6495 of 2005 filed by Xavier. Whereas, the nature of plea tried to be canvased even before this Court was purely based on factual points. The contention on the side of the appellants that the marriage of Prema's daughter took place only in the year 2003 and in such a case, Prema might not have occasion to borrow Rs.25,000/- from Xavier cannot be taken as a law point and as such, I am of the view that there is no perversity or illegality in the judgments rendered by the Courts below.

10. Substantial Question of Law (D): Under this substantial question of law the non-impleadment of Tamil Nadu Housing Board has been taken as a plea. I am of the view that in a suit for eviction based on a Sale Deed executed by the Slum Clearance Board, the Slum Clearance Board is not at all a necessary party and in such a case that question also does not arise.

11. Proposed Substantial Question of Law (E): The appellants contended that the partition suit O.S.No.4879 of 2008 is pending at the instance of Sivagami and others as against Xavier relating to the same property. I am of the view that the said suit emerged pendente lite of the first appeal and so far this case is concerned, this has to be considered independently taking into account the merits involved. I am of the view that no counter claim also was made by the appellants herein in the written statement filed in the suit filed by Xavier. The Courts, from the available materials, decided the lis and there is no perversity or illegality in the findings, so as to warrant framing of any question of law, much less substantial question of law in this case.

12. In view of the ratiocination adhered to above in deciding the substantial questions of law, I am of the view that there is no merit in second appeals and accordingly, both the second appeals are dismissed. However, there is no order as to costs. Connected miscellaneous petitions are dismissed.

13. The learned counsel for the appellants would make an extempore submission that five months' time may be granted for vacating the place. The learned counsel for the respondent/Xavier is also having no objection for granting time. Accordingly, five months' time is granted for vacaing the suit property by the appellants and an affidavit shall be filed by the appellants to that effect within 10 days from this date. Msk 16.12.2010

Index:Yes

Internet:Yes

To

1. The 2nd Additional Judge, City Civil Court, Chennai.

2. The 4th Assistant Judge, City Civil Court, Chennai.

Note:Issue order copy on 20.12.2010

G.RAJASURIA,J.

msk

S.A.Nos.1705 & 1706 of 2006

16.12.2010