AI Drafter 
TaxTMI 
TaxTMI 
2020 (8) TMI 866
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 District Munsif, Valaingaiman at Kumbhakonam, claiming declaration of ownership of the suit premises, a direction on the Appellant, being the Defendant, to deliver possession of the suit premises to the Respondent Plaintiff, a decree for payment of Rs. 900/- towards arrears of rent/occupation charges in respect of the suit premises, and a decree for payment of future profits. 5. In the plaint filed in the said suit, it has been alleged that the said premises, which had been purchased by the Resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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, the Respondent Plaintiff appealed to the Subordinate Court at Kumbhakonam, hereinafter referred to as the 'First Appellate Court'. 14. By a judgment and order dated 17.9.1999, the First Appellate Court allowed the said appeal, and set aside the said judgment and order dated 22.1.1998 of the Trial Court , holding that the Respondent Plaintiff was entitled to declaration of title over half portion of the suit premises and also to recovery of income, if any, from the said ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te 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 Respondent Plaintiff and the Appellant defendant, and that in any case the Appellant had been in possession of the suit premises for a long time. 21. The First Appellate Court passed a fair and just order, holding that the Respondent-plaintiff, being the owner of a portion of the said premises, was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant being t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal. 26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellate 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 half of the suit property, has, as observed above, been decided in favour of the Respondent Plaintiff, based on pleadings and evidence. The conclusion of the First Appellate Court, of the entitlement of the Respondent Plaintiff to a declaration in respect of his half share in the suit pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....late 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 possession of the suit property but had granted the Respondent Plaintiff mesne profits for three years, prior to the institution of the suit. 45. 'Mesne profits' are profits which a person in wrongful possession of property might have derived, but would not include....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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. 52. The maxim "possession follows title" is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that posses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isper 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 statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57. The condition precedent for entertaining and deciding a second appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a subst....