Balasubramaniam vs M.Arokiasamy (Dead) Thr. Lrs. on 2 September, 2021


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Supreme Court of India

Balasubramaniam vs M.Arokiasamy (Dead) Thr. Lrs. on 2 September, 2021

Author: A.S. Bopanna

Bench: Hon’Ble The Justice, Surya Kant, A.S. Bopanna

                                                            NON­REPORTABLE


                                    IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION
                                     CIVIL APPEAL NO. 2066 OF 2012



                         Balasubramanian & Anr.                    .…Appellant(s)


                                                   Versus


                         M. Arockiasamy (dead) Through Lrs.    …. Respondent(s)



                                             JUDGMENT

A.S. Bopanna,J.

1. The appellant is before this Court in this appeal,

assailing the judgment dated 30.10.2009 passed by the

High Court of Madras, Madurai Bench in S.A. No. 1303 of

1994. The appellant herein is the plaintiff in the suit

while the respondents are the legal representatives of the

Signature Not Verified deceased first defendant before the Trial Court. For the
Digitally signed by
SATISH KUMAR YADAV
Date: 2021.09.02
17:04:15 IST

sake of convenience and clarity the parties will be
Reason:

Page 1 of 22
referred to in the rank assigned to them before the court

of first instance namely, the Court of District Munsif,

Palani.

2. The factual matrix in brief is that the plaintiff filed

the suit bearing O.S No. 769/1987 seeking the relief of

perpetual injunction to restrain the defendants from

interfering with the peaceful possession and enjoyment of

the plaint schedule property, as claimed by the plaintiff.

The defendant No.2 did not respond to the summons

issued in the suit and therefore, was placed ex­parte. The

defendant No.1 appeared before the trial court and

contested the suit. The case of the plaintiff was that the

plaint schedule property belonged to the plaintiff who has

been enjoying the same for a period of 40 years by paying

kist. The property belonging to the defendant No.1 is

adjacent to the suit property. The same was sold by the

defendant No.1 to one Parvatham Ammal wife of

Ponnusamy in the year 1984. The properties were sub­

divided after the purchase and were assigned the Survey

No.1073/3V, and 1073/3B. The property bearing Survey

Page 2 of 22
No.1073/13A belonged to Parvatham Ammal. The said

Smt. Parvatham Ammal alienated the property to one

Subban Asari. Hence, it was contended by the plaintiff

that the defendant No. 1 has no manner of right over the

suit schedule property. The plaintiff alleged that the

defendant No.1 approached the plaintiff and demanded to

sell the property to him but the plaintiff refused to do so,

due to which the defendants attempted to trespass into

the suit property. The plaintiff having resisted the same

claimed that the suit is filed in that view seeking

injunction.

3. The defendant No.1 in order to resist the suit, filed

a detailed written statement disputing the right claimed

over the suit schedule property by the plaintiff. It was

contended that the suit schedule property neither

belonged to the plaintiff nor was the plaintiff in

possession of the same. On the other hand, it was

contended that the defendant was in possession of the

property. It was averred that the suit property and

certain other properties originally belonged to Ponnimalai

Page 3 of 22
Chetti, the father of Konar Chettiar. He purchased 1/3rd

share in Survey No.1073/3 and 1/5th share in Survey

No.1073/13. Though only the said extent was purchased,

the entire extent was in his possession and enjoyment.

The said Konar Chettiar handed over the entire extent to

Marimuthu Kudumban son of Sivanandi Kudumban who

was the grandfather of defendant No.1. Subsequently,

0.33 cents of land in Survey No.1073/3A was acquired

for the formation of Kodaikanal road and the remaining

extent of land available in the said Survey Number is only

46 cents. Marimuthu Kudumban disposed 0.35 cents of

land in Survey No.1073/13 from out of the extent of 1.76

acre to one Arockiammal i.e., the mother of the defendant

No.1 under a sale deed dated 10.08.1937 and delivered

the possession. The remaining 1.41 acres of land was

also enjoyed by Marimuthu Kudumban. Subsequently, he

died leaving behind him the mother of defendant no. 1

namely Arockiammal as the only heir. Arockiammal was

thus in possession and enjoyment of 0.79 cents in Survey

No.1073/3V and 1.41 acre in Survey No.1072/13A

Page 4 of 22
alongwith the 0.35 cents of land purchased by

Arockiammal. The defendant No.1 was enjoying the

properties through the guardian since the defendant No.1

was 3 years old when Arockiammal and her husband

died.

4. It was further averred that the defendant No.1

sold 0.31 cents of land in survey No.1073/13 from out of

1.76 acres of land to Parvatham Ammal on 24.11.1984.

The remaining 1.41 acres of land has been in possession

and enjoyment of defendant No.1. After the purchase of

land Parvatham Ammal obtained patta for Survey

No.1073/13 to the extent of 55 cents and sub­divided in

1073/13A. The Revenue authorities issued patta for the

extent of 55 cents and on 19.12.1987 Parvatham Ammal

sold 55 cents of land to one Subban Asari. The defendant

alleged that Subban Asari in order to grab the suit

property is litigating in the instant suit in the name of the

plaintiff. The defendant No.1 disputed the payment of kist

by the plaintiff which has been done with the ulterior

motive for the suit. The defendant No.1 claimed in the

Page 5 of 22
written statement that the defendant No.1 is residing in

the thatched house in the suit property and is engaged in

agricultural work. The defendant No.1 therefore, sought

for dismissal of the suit.

5. Based on the rival pleadings, the trial court framed

two issues and an additional issue casting burden on the

plaintiff to prove whether the plaintiff was in exclusive

possession and enjoyment of the suit property and as to

whether the plaintiff is entitled for permanent injunction

as prayed for. The plaintiff examined himself as PW1 and

relied upon the documents at Exhibit A1 to A16. No other

witness was examined on behalf of the plaintiff. The

defendant examined two witnesses as DW1 and DW2 and

documents at Exhibits B1 to B14 were marked.

6. The learned District Munsif (Trial Court) having

taken note of the rival contentions and the evidence

tendered by the parties recorded a categorical finding

that the plaintiff has failed to prove possession over the

suit schedule property and taking note of certain

admissions made by the plaintiff during the course of the

Page 6 of 22
cross­examination and the contention put­forth by the

defendant, was also of the view that though the claim of

the plaintiff is denied by the defendant No.1 the plaintiff

has not sought the relief of declaration and in that light

the only question relating to possession was answered

against the plaintiff. The suit of the plaintiff was

accordingly dismissed with costs through its judgment

dated 13.04.1993.

7. The plaintiff being aggrieved by the same preferred

a Regular First Appeal under Section 96 of the Civil

Procedure Code before the District Judge, Dindigul (First

Appellate Court) in A.S No.51 of 1993. The learned

District Judge framed two points for consideration,

essentially to the effect as to whether the plaintiff is

entitled to the relief of permanent injunction. While

taking note of the evidence tendered by the parties before

the trial court, the learned District Judge has placed

much reliance on the documents at Exhibit A5 series,

namely, the kist receipts and based mainly on the same

has arrived at the conclusion that the claim of the

Page 7 of 22
plaintiff that he is in possession of the suit schedule

property is to be accepted since he was paying kist in

respect of the property.

8. The defendant No.1 therefore, claiming to be

aggrieved by the judgment dated 18.03.1994 passed by

the learned District Judge in A.S. No.51/1993 preferred

the Second Appeal under Section 100 of the Civil

Procedure Code before the Madras High Court, Madurai

Bench in S.A. No.1303 of 1994. The High court while

admitting the Second Appeal had framed a substantial

question of law, as to whether the suit without the prayer

for declaration is maintainable when especially the title of

the plaintiff is disputed. Thereupon having taken note of

the rival contentions urged by the parties had arrived at

the conclusion that the substantial question of law

framed has substance and therefore, set aside the

judgment dated 18.03.1984 passed in A.S. No.51/1993

by the learned District Judge Dindigul. The plaintiff

therefore, claiming to be aggrieved has filed the instant

appeal.

Page 8 of 22

9. In the above background we have heard Mr.

Jayanth Muth Raj, learned senior counsel appearing for

the plaintiff­appellant, Mr. Sriram P., learned counsel

appearing for the respondents and perused the appeal

papers.

10. The reference made hereinabove to the rival

pleadings would delineate the nature of contentions that

were put­forth by the parties in support of the suit and to

oppose the same. The manner in which it is dealt by the

various fora in the hierarchy will have to rest on the

claim that was originally put­forth in the plaint and the

manner in which the claim was sought to be established

with the evidence tendered, either documentary or oral.

The learned senior counsel for the appellant has

strenuously contended that the parameter for

interference by the High Court in the Second Appeal

under Section 100 of the Civil Procedure Code is well

established and the High Court cannot travel beyond the

same and advert to re­appreciate the evidence on factual

aspects. It is contended that though a substantial

Page 9 of 22
question of law was framed by the High Court, the same

has not been answered. It is his contention that even

otherwise the substantial question of law as framed by

the High Court is not sustainable inasmuch as the law is

well settled that in a suit for bare injunction the plaintiff

need not always seek for declaratory relief and if this

aspect of the matter is kept in view there was no other

substantial question of law subsisting and the second

appeal ought to have been dismissed. He contended that

in such event when the lower appellate court which is the

last court for appreciation of facts has recorded its

finding of fact, the same cannot be interfered by the High

Court on re­appreciation of the evidence. In that view it is

contended that the judgment passed by the High court is

liable to be set aside and the judgment of the lower

appellate court is to be restored.

11. The learned counsel for the defendant No.1

however, sought to sustain the judgment passed by the

High Court. It is pointed out that the suit was instituted

by the plaintiff as far back as in the year 1987 and the

Page 10 of 22
trial court through its judgment dated 13.04.1993 had

referred to the entire evidence and arrived at a conclusion

that the prayer made in the plaint is liable to be rejected.

Though the lower appellate court has set aside the same,

the judgment of the lower appellate court would indicate

that the evidence has not been properly appreciated and,

in such circumstance, the High Court as far back as on

30.10.2009 has set aside the judgment of the lower

appellate court and in such event, at this distant point in

time it would not be appropriate to set aside the order of

the High Court more particularly when the defendant

No.1 has been in possession, prior to and subsequent to

the suit. The learned counsel therefore, sought for

dismissal of this appeal.

12. In the light of the rival contentions, before

adverting to the fact situation herein it is to be stated at

the outset that on the general principles of law laid down

in the decisions referred to by the learned senior counsel

for the appellant, there can be no quarrel whatsoever. In

the case of Gajaraba Bhikhubha Vadher & Ors.

Page 11 of 22
versus Sumara Umar Amad (dead) thr. Lrs. & Ors.

(2020) 11 SCC 114 the fact situation arising therein

was referred to and having taken note that five

substantial questions of law had been framed, this Court

had arrived at the conclusion that such substantial

questions of law which arose therein had not been dealt

with appropriately since it had not been considered in the

light of the contentions. It is in that circumstance, this

Court was of the view that the judgment of the High

Court is to be set aside and the matter is to be remitted

to the High Court. In the case of Ramathal versus

Maruthathal & Ors. (2018) 18 SCC 303, the issue

considered was as to whether the High Court was wrong

in interfering with the question of fact in the Second

Appeal. It was a case where both the courts below had

arrived at a concurrent finding of fact and both the

Courts had disbelieved the evidence of witnesses. In such

a case where such concurrent factual finding was

rendered by two courts and in such situation, it had been

interfered by the High Court in a Second Appeal, this

Page 12 of 22
Court was of the view that the interference was not

justified. However, it is appropriate to notice that in the

said decision this Court had also indicated that such

restraint against interference is not an absolute rule but

when there is perversity in findings of the court which are

not based on any material or when appreciation of

evidence suffers from material irregularity the High Court

would be entitled to interfere on a question of fact as well.

The decision in the case of Ram Daan (dead) through

Lrs. versus Urban Improvement Trust. (2014) 8 SCC

902, is a case, where in a suit for permanent injunction

the plaintiff had pleaded possession from the year 1942

and the defendant had admitted the possession of the

plaintiff from 1965 though it was contended that they

had re­entered the property after being evicted in 1965. It

is in that circumstance the case of the plaintiff seeking to

protect the possession was accepted and the necessity for

seeking declaration did not arise as the defendant did not

assert its right of ownership which is not so in the

instant case. In the case of P. Velayudhan & Ors.

Page 13 of 22
versus Kurungot Imbichia Moidu’s son Ayammad &

Ors. (1990) Supp. SCC 9 and in the case of Tapas

Kumar Samanta versus Sarbani Sen & Anr. (2015)

12 SCC 523, the decisions are to the effect that in a

Second Appeal the High Court would not be justified in

interfering with the finding of fact made by the first

appellate court since such finding rendered would be

based on evidence. On this aspect there can be no doubt

that the same is the settled position of law but it would

depend on the fact situation and the manner in which

the evidence is appreciated in the particular facts. In the

case of Ramji Rai & Anr. versus Jagdish Mallah

(dead) thr. Lrs. & Anr. (2007) 14 SCC 200 though it is

held that there was no need to seek for declaration and

suit for possession alone was sustainable, it was held so

in the circumstance where injunction was sought in

respect of the disputed land which was an area

appurtenant to their building in which case possession

alone was relevant and restraint sought was against

preventing construction of compound wall.

Page 14 of 22

13. In the background of the legal position and on

reasserting the position that there is very limited scope

for reappreciating the evidence or interfering with the

finding of fact rendered by the trial court and the first

appellate court in a second appeal under Section 100 of

the Civil Procedure Code, it is necessary for us to take

note as to whether in the instant facts the High Court

has breached the said settled position. To that extent the

factual aspects and the evidence tendered by the parties

has already been noted above in brief. Further, what is

distinct in the present facts of the case is that the finding

rendered by the learned Munsif (Trial Court) and by the

learned District Judge (First Appellate Court) are

divergent. The trial court on taking note of the pleadings

and the evidence available before it was of the opinion

that the plaintiff has failed to prove exclusive possession

and, in such light, held that the entitlement for

permanent injunction has not been established. While

arriving at such conclusion the trial court had taken note

of the right as claimed by the plaintiff and in that

Page 15 of 22
background had arrived at the conclusion that except for

the say of plaintiff as PW1 there was no other evidence.

On the documentary evidence it was indicated that the

kist receipts at Exhibit A5 series would not establish

possession merely because the name has been

subsequently substituted in the patta records and the

kist had been paid.

14. As against such conclusion, the first appellate

court in fact has placed heavy reliance solely on the kist

receipts which in fact had led the first appellate court to

arrive at the conclusion that the continuous payment of

kist would indicate that the plaintiff was also in

possession of the property. When such divergent findings

on fact were available before the High Court in an appeal

under Section 100 of the Civil Procedure Code though

reappreciation of the evidence was not permissible,

except when it is perverse, but it was certainly open for

the High Court to take note of the case pleaded, evidence

tendered, as also the findings rendered by the two courts

which was at variance with each other and one of the

Page 16 of 22
views taken by the courts below was required to be

approved.

15. In view of the above, although the counsel for the

appellant may be technically correct in his submission

that the High Court erred in not clearly answering the

question of law framed by it under Section 100, CPC, the

High Court was still within its jurisdiction to determine

whether the reading of the evidence on record by one of

the Courts below was perverse. Question of law for

consideration will not arise in abstract but in all cases

will emerge from the facts peculiar to that case and there

cannot be a strait jacket formula. Therefore, merely

because the High Court refers to certain factual aspects

in the case to raise and conclude on the question of law,

the same does not mean that the factual aspect and

evidence has been reappreciated. As already noted, the

divergent view of the courts below on the same set of

facts was available before the High Court. From the

judgment rendered by the trial court, the nature of

contentions as noted would disclose that the plaintiff

Page 17 of 22
except contending that the suit schedule property was

being enjoyed for the past 40 years by paying kist has not

in fact referred to the manner in which such right had

accrued so as to suggest or indicate unassailable right to

be in physical possession. On the other hand, the

defendant while denying the right of the plaintiff to claim

the relief had traced the manner in which the property

had devolved and the right which is being claimed by the

defendant. It was also contended that the defendant No.1

is residing in the thatched house which is on the

property. It is in that light the trial court having taken

note of the assertions made by the defendant No.1 and

lack of evidence by the plaintiff had arrived at the

conclusion that the possession of the plaintiff as claimed

cannot be accepted and that the plaintiff has not sought

for declaration despite the defendant having disputed the

claim of the plaintiff.

16. The trial court while answering Issue No.1and

Addl. Issue No.1, on adverting to rival contentions and

evidence, recorded thus:

Page 18 of 22
“Though the claim of the plaintiff is denied by
the 1st defendant, the plaintiff has not sought
the relief of declaration as already adverted.
The only question remains to be answered is
whether the plaintiff has been enjoyment of
suit property and he is entitled to relief of
permanent injunction as prayed for”.

The trial court, thereafter on assessing the evidence has

concluded thus:

“This Court feels that these documents do not
require any consideration. Hence this court
could not conclude that the plaintiff is in
possession and enjoyment of the suit
properties based on the documents marked as
exhibits on the side of the plaintiff”.

17. One other aspect which is also to be noted is that

the plaintiff himself had filed applications before the trial

court claiming that the defendant No.1 had trespassed

into the suit property and encroached the house after

grant of temporary injunction. In another application

filed it was contended by the plaintiff that the defendant

had trespassed and is residing in the thatched house.

Whereas the defendant No.1 in his written statement

itself had stated that he is residing in the thatched house

Page 19 of 22
situate in the suit schedule property. The said

applications have not been pressed to its logical

conclusion nor has any other step been taken to seek

restoration of possession by establishing that the

possession in fact had been taken by the defendant No.1

subsequent to the interim injunction. Therefore, on all

counts the possession of the suit schedule property was

also not established.

18. That apart, though the lower appellate court had

reversed the judgment of the trial court, this aspect of the

matter relating to the grievance of the plaintiff that he

had been dispossessed had not been addressed and

despite the plaintiff not being in possession the

injunction being granted by the lower appellate court

would not be justified. On the other hand a perusal of the

judgment passed by the learned District Judge and the

observations contained therein to the effect that the

defendant has not produced any documentary evidence

to show that Arockiammal is the only heir of deceased

Marimuthu Kudumban and also that defendant No.1

Page 20 of 22
alone is the legal heir of deceased Arockiammal, daughter

of Marimuthu Kudumban and the conclusion that there

is no clinching proof on behalf of the defendant that he

has paid kist to the suit property as also the observation

that the defendant has miserably failed to prove his

possession over the suit property, on the face of it

indicate that the learned District Judge has misdirected

himself and proceeded at a tangent by placing the burden

on the defendant. Though there was no issue to that

effect before the trial court, the learned District Judge

with such conclusions has ultimately set aside the well­

considered judgment and decree dated 13.04.1993

passed by the trial court in O.S. No.769/1987, which will

indicate perversity and material irregularity in

misdirecting itself in wrongly expecting the defendant to

discharge the burden in a suit for bare injunction and

arriving at a wrong conclusion.

19. When the above aspects are kept in view, without

making any observations as to the question of law raised

in the present appeal, we are of the considered opinion

Page 21 of 22
that it would not be appropriate to interfere with the

judgment of the High Court which is in consonance with

the fact situation arising in the instant case. In that

view, we see no merit in this appeal.

20. The appeal is accordingly dismissed with no order

as to costs in this appeal.

21. Pending applications, if any, shall stand disposed

of.

………….…………CJI
(N.V. RAMANA)

………….…………….J.

(A.S. BOPANNA)

………….…………….J.

(HRISHIKESH ROY)
New Delhi,
September 02, 2021

Page 22 of 22



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