suit for perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property, as claimed by the plaintiff. - trail court dismissed the suit as the plaintiff not proved his possession and plaintiff not filed a suit for declaration of title and possession - Appellant court reassessed and found that plaintiff proved his possession as he is paying kists and decreed the suit - Second appeal, the High court set aside the appellant court judgment as the plaintiff failed to prove his possession and also not filed a suit for declaration of title and confirmed the judgment of trial court- Apex court held that While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that 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. 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 - divergent findings on fact were available - 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. - Civil appeal was dismissed
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)
J U D G M E N T
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
deceased first defendant before the Trial Court. For the
sake of convenience and clarity the parties will be
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 subdivided 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 wellconsidered 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
