This second appeal has been filed by the defendant, animadverting upon the judgement and decree dated 16.9.2008 passed by the learned Sub Court, Gobichettipalayam, in A.S.No.22 of 2008, confirming the judgement and decree dated 20.12.2007 passed by the learned District Munsif, Sathiyamangalam in O.S.No.231 of 2005. 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 Respondents/plaintiffs filed the suit O.S.No.231 of 2005 as against the defendant, seeking partition of the suit properties, as against which, the defendant filed the written statement and resisted the suit.
(b) During enquiry, the trial Court framed the relevant issues. The 3rd plaintiff examined herself as P.W.1 along with one Ramaswamy as P.W.2 and Exs.A1 to A.3 were marked. The defendant examined himself as D.W.1 along with one Arumugham as as D.W.2 and Exs.B1 to B15 were marked. One Ponnammal was examined as Court witness.
(c) Ultimately the trial Court decreed the suit, as against which, the defendant filed the A.S.No.22 of 2008, 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 said judgement in A.S.No.22 of 2008, this second appeal has been focussed on various grounds suggesting the following substantial questions of law, which are extracted here under:
a) Whether the Courts below erred in law and misdirected themselves in holding that the present suit in O.S.No.231 of 2005 is not hit by the principleh of res-judicata even though the very same trial Court in O.S.No.232 of 2002 held that the item 1 of the present suit property is not the self acquired property of Rakkiyagounder and that it was only a joint family property of the defendant and his father?
b) Whether the Courts below are correct in law in granting decree for 5/6th share each to the plaintiffs in item 1 of the suit property particularly when the succession opened as early as on the date of the death of Thiru Rakkiyagounder on 3.11.1981, at that time, the defendant and his father were the co-parceners, whereby each entitled to = share, therefore the plaintiffs could claim only 1/12th share each?
c) Whether the Courts below are correct in law in holding that the suit 1st item is the self acquired property of Rakkiyagounder, admittedly when he had no surplus income to purchase the suit item 1 in his name under Ex.B2 and Ex.B3?
d) Whether the Courts below have committed an error in rejecting the plea of adverse possession especially when the defendant has produced ample evidence to prove his actual, exclusive possession and enjoyment of the property by way of ouster against the plaintiffs?
4. A poring over and perusal of the typed set of papers, including the certified copies of the judgements and decrees of both the Courts below, would exemplify and display that the respondents/plaintiffs filed the suit for partition on the main ground that out of two items of the properties, the first item of the suit property was purchased by Rakkiyagounder from out of his own self ascertain, as per Ex.B2-the Sale Deed dated 2.6.1965 and Ex.B3-the Sale deed dated 24.1.1972 and that the second item of the suit property was acquired by the joint earnings of the joint family members; and Rakkiyagounder died leaving behind his wife Ponnammal(the first plaintiff) and his four daughters, namely, P2 to P5 and the defendant. Accordingly, the plaintiffs prayed for dividing both items of the suit properties into six equal shares and allotment of five shares in favour of the plaintiffs.
5. Remonstrating and refuting, challenging and impugning the averments/allegations in the plaint, the defendant filed the written statement contenting that the first item of the suit properties was purchased by Rakkiyagounder from out of the income derived from joint family nucleus; the second item of the suit property was acquired exclusively by the defendant from out of his own earnings and accordingly, he prayed for the dismissal of the suit.
6. However, both the Courts below rendered the finding to the effect that the second item of the suit property happened to be the exclusive property of the defendant, as against which, the plaintiffs have not filed any appeal.
7. Both the Courts below held also that the first item of the suit property cannot be treated as ancestral property, but it was the self-acquired property of the deceased Rakkiyagounder and hence, it is liable to be divided into six equal shares among the plaintiffs and the defendant.
8. The learned counsel for the defendant would advance his argument to the effect that both the Courts below failed to take into consideration the fact that admittedly the ancestral property was sold as per Ex.B1 dated 14.3.1963 by Rakkiyagounder and a sale price of Rs.100/- emerged out of it and; he by his own shrewd efforts got interest over the said amount and purchased a part of the first item for a sum of Rs.200/-, as per Ex.B2 dated 2.6.1965 and the remaining portion of the first item of the property was purchased for a sum of Rs.100/- as per Ex.B3 dated 24.1.1972 and the defendant also contributed financially for such purchase.
9. Both the Courts below, after due analysis of the evidence on record, arrived at the factual finding that absolutely there is nothing to indicate and ememplify that the first item of the suit properties, as per Ex.B2 and B3, were purchased from out of the income derived from the joint family nucleus. Ex.B1-the sale deed fetched only a sum of Rs.100/- and that too on 14.3.1963. It is highly improbable to visualise that the said sum of Rs.100/- was invested by him in some interest bearing investments and Rakkiyagounder, within such a short time could have purchased for Rs.200/- a part of the first item of the suit property as per Ex.B2. The pleas emerged out of fabulous and phantasmagorical thought cannot be upheld by the Court simply without any concrete evidence.
10. It is a trite proposition of law that the first appellate Court is the last Court of facts and accordingly both the Courts below gave a categorical finding that there was no shard or shred, iota or miniscule extent of evidence to highlight that the plaintiffs purchased a part of the suit properties from out of the sale proceeds obtained under Ex.B1. The oral evidence of P.W.1-the wife of Rakkiyagounder was considered by the Courts below and held that the said sale proceeds could not have been utilised for purchasing a part of the first item of the suit property, as per Ex.B2.
11. It is quite axiomatic that as per Ex.B3 the remaining part of the first item of the suit properties could not have been purchased from out of the joint family nucleus. There is also nothing to infer that the defendant contributed anything for the purchase of the part of the first item of the suit property as per Ex.B3, during the year 1972. As such, in view of the categorical findings of both the Courts below, based on evidence, there is no possibility of invoking Section 100 of the C.P.C. The preponderance of probabilities will govern the adjudication in civil cases.
12. It is a well settled proposition of law that there is no presumption that the property purchased subsequent to the sale of some ancestral property should be deemed to be the joint family properties or ancestral properties. There should be clear evidence to indicate and display that from out of the sale of such ancestral property sufficient income emerged in commensurate with the sale consideration relating to the property purchased.
13. The learned counsel for the defendant with reference to the judgement in the previous suit O.S.No.232 of 2002 and the subsequent appeal A.S.No.54 of 2005 would develop his argument to the effect that the earlier suit O.S.No.232 of 2002 was filed by the defendant herein for injunction in respect of the first item of the suit property and it was held as ancestral property.
14. The trial Court in paragraph 14, correctly held that in the previous suit there was no finding that the first item of the suit property happened to be the ancestral property. Even for argument sake it is taken that there was an incidental finding about the nature of the property in the injunction suit, it would not operate as res judicata in the subsequent partition suit. There is also no indication that any specific issue was framed in the earlier suit as to the ancestral nature of the first item of the suit property and that it was decided in favour of the defendant herein, who was the plaintiff therein.
15. Put simply the proposed substantial question of law (1) is based on res judicata is a misconceived one in view of my discussion supra.
16. A fortiori, the proposed substantial questions of laws (b) and (c) are also untenable as those questions were suggested pre-supposing as though the first item of the suit property is the ancestral property and as such, those substantial questions of laws are not tenable.
17. As far as the suggested substantial question of law (d) is concerned it is relating to adverse possession. It is quite obvious that adverse possession cannot be pleaded as against co-sharer unless ouster is pleaded and nothing has been highlighted as to what are all the evidence adduced before the lower Court relating to ouster. The trial Court in paragraph 21 adverted to the said plea of adverse possession and held that there was no evidence much less reliable evidence to prove ouster.
18. It is a common or garden principle of law that to prove ouster, the enjoyment of the defendant in respect of the first item of the suit property should be hostile to the other co-sharers and he should have exercised his right of ownership over it over the statutory period, but the trial Court as well as the first appellate Court held that absolutely there was no evidence. Nothing has been highlighted that both the Courts' analysis of evidence in this regard is perverse. The first appellate Court also referring to the records analysed the evidence and agreeing with the trial Court correctly arrived at the just conclusion, warranting no interference by this Court.
018. 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. . . . . .
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.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.
19. Accordingly, second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
msk To
1.The Principal Sub court, Gobihettipalayam
2.The District Munsif, Court, Sathiyanabgakan