This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 15.3.2004 passed in A.S.No.253 of 2002 by the District Judge,Perambulur, confirming the judgement and decree dated 31.7.1997 passed by the District Munsif, Perambulur, in O.S.No.321 of 1993, which was filed for declaration and permanent injunction. For the sake of convenience, the parties are referred to hereunder according to their letigative 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:
The appellant/plaintiff filed the suit O.S.No.321 of 1993 as against the defendants, seeking the following relief:
"to declare the title of the plaintiff to the suit properties and as a consequential relief of permanent injunction from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties at any time and in any manner."(extracted as given in the plaint) The first defendant entered appearance and filed the written statement.
3. The trial Court framed the relevant issues. During enquiry, the plaintiff examined himself as P.W.1 along with one Kannan as P.W.2 and Exs.A1 and A28 were marked. On the defendants' side the first defendant examined himself as D.W.1 along with one Muthu as D.W.2 and Ex.B1 to B.23 were marked.
4. Ultimately, the trial Court dismissed the suit. As against which, the plaintiff preferred the appeal A.S.No.253 of 2002, which was dismissed by the first appellate Court, confirming the the judgement and decree of the trial Court.
5. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, the plaintiff filed this second appeal on various grounds and also suggesting the following substantial questions of law.
"(1) Whether the lower appellate Court having found that the suit lands covered by Ex.A1 old patta No.66, in the name of father of the appellant; and that the family members of appellant had paid taxes under Ex.A2-A14, A23-27, was justified in law in holding that the non-production of any title deed, disentitled the appellant from claiming exclusive title to the suit lands/ (2) Whether the lower appellate Court, without any evidence, in regard to the alleged partition and separate possession put forward by the first respondent/first defendant was right in law in granting = share in the suit lands in favour of the first defendant/first respondent?
(3) The appellant having produced the original patta Ex(A1) and UDR patta Ex.(A20), tax receipts Exs.A2 to A4, and A23 to A27 the lower appellate Court was right in law in refusing the grant, the relief of permanent injunction against the defendants/respondents who attempted to trespass upon the suit lands?(extracted as such)
6. A deep analysis of the typed set of papers, including the judgements of both the Courts below and also considering the arguments of the defendants would display and demonstrate that the plaintiff filed the suit seeking barely for declaration and injunction, describing and labelling the defendants as utter strangers. However, both the Courts below gave a concurrent finding that the plaintiff and the defendants are not strangers, but they are relatives to the plaintiff.
7. The learned counsel for the defendants would copiously and convincingly, based on records, narrate and portray that one Gurunathan was the original owner of the suit property, who had two sons, namely, Thiruvannamalai and Ramalingam. Thiruvannamalai had his son Palani, who had his son Dharmalingam-the first defendant herein. Ramalingam died leaving behind three children, of whom, Thangavel-the plaintiff was one of his heirs. It is the said Thangavel, who ventured and chosen to project D1 as a stranger to him and seek to get declaration and injunction in respect of the suit property.
8. The learned counsel for the defendants also invited the attention of this Court to paragraph No.6 of the judgement of the trial Court and developed his argument that there is a clear finding based on evidence by the trial Court to the effect that the plaintiff himself admitted that the defendants are in possession to an extent of half of the suit property and certain portions are also leased out by them and they are enjoying it. Over and above that, the original Revenue records bespeak in support of the defendants' possession and enjoyment of the half share in the suit property. The first appellate Court in paragraphs 12 and 13 discussed the possession of the half share of the suit property being with the defendants. The first appellate Court also refers to Exs.A2 to A8-the tax receipts, which stand in the name of Manonmaniammal-the mother of D1. Ex.A9 to Ex.A11-the tax receipts stand in the name of Gurunathan-the original owner. Ex.A12 to A.14 are the tax receipts in the name of Ponnusamy-the son of Ramalingam.
9. The first appellate Court also appositely looked askance at the plaintiff's attitude and held that he did not approach the Court with clean hands, as in Ex.A20-UDR Patta produced by the plaintiff, the name Dharmalingam-D1 is found scored out. It is a common or garden principle of law that no patta could be altered by mere scoring out. There should be relevant proceedings by which only such deletion could take place. Hence, the first appellate Court appropriately and correctly found fault with the plaintiff in his attitude in producing such mutilated Ex.A20 before the trial Court to achieve success in the litigative battle by hook or by crook.
10. It is a trite proposition of law that the onus of proof is on the plaintiff to prove his case. The plaintiff has to stand or fall on his own evidence. Here it is the specific case of the plaintiff that the plaintiff is the absolute owner of the suit property and that he has been in possession and enjoyment of the same and the defendants are trying to barge in and be in irruption of it. But the judgements of both the Courts below would expose and expatiate, detail and delineate the relevant facts to the effect that the plaintiff himself admitted that the defendants are in possession of half of the suit property. Hence, I could see no question of law much less substantial question of law arisen in this case.
11. At this juncture, I recollect and call up the following decisions of 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 inherenth 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, an excerpt from it would run thus-
9. 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 a 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. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that:
"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 calls 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."
12. A bare perusal of it would indicate and demonstrate that unless there is a substantial question of law, the question of entertaining the second appeal would not arise. Accordingly, the second appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.