This second appeal has been filed by the plaintiff, animadverting upon the judgement and decree dated 31.3.2000 passed by the learned Principal District Judge, Salem, in A.S.No.152 of 1999, confirming the common judgement and decree dated 12.7.1999 passed by the learned I Additional District Munsif, Salem, in O.S.No.1052 of 1994. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
(a) The appellant/plaintiff filed the suit O.S.No.1052 of 1994 as against the defendants, seeking permanent injunction, as as to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit properties and the goods stocked in the shops 9, 10 and 11 at Divya Towers, as against which, the defendants filed the written statement and resisted the suit.
(b) During enquiry, the trial Court framed the relevant issues. The plaintiff examined herself as P.W.1 along with one C.Muthukumar as P.W.2 and Exs.A1 to A.8 were marked. One Madra Devi was examined as D.W.1 and Exs.B1 to B7 were marked. Exs.C1 to C3 were marked as Court documents.
(c) Ultimately the trial Court dismissed the suit, as against which, the defendant filed the A.S.No.152 of 1999, for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
(d) Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds suggesting the following substantial questions of law, which are extracted here under:
a) Whether the Courts below are correct in law in their construction of Ex.A1-Lease Deed?
b) Whether the Courts below are correct in law in their interpretation of Section 108(c) and (o) of the Transfer of Property Act, 1882?
c) When the tenant is entitled to use the leased premises within the four boundaries given in the lease deed, whether the Courts below are justified in law in holding that '7' feet frontage, situate within four boundaries, does not form part of the lease hold premises?"
(extract as found in the memorandum of second appeal)
3. Heard the learned counsel appearing for the plaintiff/appellant and the learned counsel appearing for the defendants/respondents.
4. A deep analysis and poring over of the typed set of papers, including the certified copies of the judgements and decrees of both the Courts below and the submissions made on both sides, would demonstrate and display that the plaintiff filed the suit for injunction on the ground that the landlord/first defendant was attempting to interfere with the demised premises bearing Door Nos.9, 10 and 11.
5. The first defendant/landlord entered appearance and resisted the suit by pointing out that the averments and the prayer in the plaint were couched in such a language that they were capable of hiding their agenda behind it; in fact the plaintiff wanted to store and pileup his goods on the corridor, which he was not expected to do as per clause-4 of the agreement between the plaintiff and the first defendant. Accordingly, the defendants prayed for the dismissal of the suit.
6. The trial Court as well as the first appellate Court gave a categorical finding as against the plaintiff after analysing the evidence placed before it.
7. At this juncture my mind is reminiscent and redolent of the following decisions of the Hon'ble 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. . . . . . "
(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.GOYAL.
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. Here as held supra, there is no substantial question of law is found exemplified.
8. The learned counsel for the defendants would invite the attention of this Court to the judgements of both the Courts below and advance his argument to the effect that both the Courts below considered Ex.C1-the Commissioner's report and Ex.C2-the Commissioner's plan and clearly spotlighted and highlighted the fact that the Commissioner himself noted that infront of those shop Nos.9, 10 and 11, the plaintiff/tenant was misusing the verandah in violation of clause-4 of the agreement, virtually. As such, both the Courts below understanding the real motive of the plaintiff, dismissed the suit, warranting no interference by this Court.
9. However, at the time of argument, both sides in unison made a submission to the effect that the landlord/first defendant also filed R.C.O.P. in the year 2008 for evicting the plaintiff from the demised premises and in such a case, it is crystal clear that the findings of both the Courts below that there was no cause of action for the suit, warrants no interference by this Court. Accordingly, I could see no question of law much less substantial question of law involved in this matter.
10. In the result, the second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is dismissed.
msk To
1.The Principal District Judge, Salem.
2.The I Additional District Munsif, Salem