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TMI Blog2020 (8) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ven a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained - Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant-Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent-Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted. The second question of law, that is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent the Signature Not Verified Digitally signed by INDU MARWAH First Appellate Court had declined the Respondent's claim to a Date: 2020.08.27 18:19:32 IST Reason: decree of recovery of possession of the suit premises. The High Court held that the Respondent, being the Plaintiff in the suit was entitled to a declaration of title in respect of half portion of the suit premises, recovery of possession of the said half portion of the suit premises and also to recovery of income from the said half of the suit property owned by the Respondent and/or charges for use, enjoyment and/or occupation thereof. 2. The Appellant claims to be the owner of the suit premises, being the building and premises at Door No.4 in R.S. No.120/13 at Mela Senia Street, Aduthurai, Tamil Nadu. 3. According to the Appellant, the Appellant's father purchased the suit premises for valuable consideration, by a registered deed of sale dated 17.2.1938. The Appellant claims to have been in possession of the suit premises, as owner, from the inception and not as tenant. 4. In 1994, the Respondent, hereinafter referred to as the 'Respondent Plaintiff', filed a suit being O.S. No.169/1994 in the Court of the Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises, with absolute rights. 10. The learned District Munsif (Trial Court) framed the following three issues for adjudication in the said suit :- (i) Whether the Respondent Plaintiff was entitled to declaration of title to the suit property and recovery of possession of the suit property from the Defendant (the Appellant in this Appeal) (ii) Whether the Defendant (the Appellant herein) was a tenant at the suit property or not; (iii) To what other relief was the Respondent Plaintiff entitled. 11. By a judgment and decree dated 22.1.1998, the Trial Court dismissed the said suit, holding that the Respondent Plaintiff had failed to prove that the suit property had been purchased by his father. All the three issues were decided against the Respondent Plaintiff. 12. The Trial Court found that the Respondent Plaintiff had not been able to produce any rent agreement, rent receipts or any other oral or documentary evidence to establish that the Appellant was a tenant at the said premises. The Trial Court held that the Respondent Plaintiff was not entitled to any relief in the said suit. 13. Being aggrieved by the said judgment and decree dated 22.1.1998 passed by the Trial Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff or his father or any other family member had ever paid any taxes in respect of the suit premises. 18. The First Appellate Court concurred with the finding of the Trial Court, that the Respondent-Plaintiff had failed to establish that the said premises had been rented out to M. Abdul Aziz father of the Appellant-Defendant. On the other hand, the Appellant had been in possession of and had been enjoying the suit premises for a long time. The First Appellate Court thus found the Appellant liable to pay "backage income" in respect of the portion of the suit property, of which the Respondent Plaintiff was the owner. 19. The First Appellate Court, in effect, held that the Appellant was liable to make over to the Respondent Plaintiff, income if any, derived from the said portion of the suit premises which was owned by the Respondent Plaintiff and/or pay charges for use, occupation and enjoyment of the portion of the suit premises owned by the Respondent Plaintiff. 20. The First Appellate Court, however, held that the Respondent Plaintiff was not entitled to recovery of possession since the Respondent Plaintiff had failed to establish landlord- tenant relationship between the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]" 25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw." 30. In Hero Vinoth v. Seshammal (2006) 5 SCC 545, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. 31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:- "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179. 36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam AIR 1963 SC 302. 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. 37. The principles relating to Section 100 CPC relevant for this case may be summarised thus : (i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by perversity. It is nobody's case that the evidence taken as a whole does not reasonably support the finding of the First Appellate Court, or that the First Appellate Court interpreted the evidence on record in an absurd and/or capricious manner. It is also nobody's case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle. 40. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant-Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent-Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted. 41. The second question of law, that is, the question of whether the First Appellate Court was right in holding that the plaintiff was entitled to a declaration of title in respect of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule property by the learned first appellate Judge, warrants interference from this Court. Substantial Question of Law No.1 is answered accordingly. 9. In fine, the Second Appeal No.558 of 2000 is allowed and the decree and judgment of the learned first appellate Judge in A.S. No.16/1998 on the file of the Court of Subordinate Judge, Kumbakonam is set aside in respect of dismissal of the suit for recovery of possession in respect of half of the plaint schedule property. The plaintiff is entitled to recover half of the plaint schedule property after identifying the same with the help of an Advocate Commission at the time of execution of the decree In other respects, the decree of the learned first appellate Judge in A.S. No.16/1998 on the file of the Court of Subordinate Judge, Kumbakonam is hereby confirmed. Second Appeal No. 64 of 2000 is dismissed. No costs. Consequently, connected miscellaneous petition is closed." 44. The High Court, with greatest of respect, has patently erred in its conclusion that there was contradiction in the findings of the First Appellate Court, in that the First Appellate Court had declined the Respondent Plaintiff the relief of delivery of possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit. 50. In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not. 51. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of possession 55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in- interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit. 56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact." "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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