21 November 2022


Supreme Court

Balasubramaniam vs. M.Arokiasamy (Dead) Thr. Lrs.




Reference to factual aspects in Second Appeal by the High Court to raise and conclude on question of law does not mean that evidence has been re-appreciated

The Plaintiff filed the suit 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 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 concluded that the substantial question of law framed has substance and therefore, set aside the judgment passed by the learned District Judge. The plaintiff therefore, claiming to be aggrieved has filed the instant appeal.

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. On the documentary evidence, it was indicated that, the kist receipts would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid.

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, 1908 (CPC) though re-appreciation 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 views taken by the courts below was required to be approved.

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 re-appreciated. 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 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. 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. Appeal dismissed.

Tags : Facts Reference Second appeal

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