MANU/TN/0443/2000

Equivalent Citation: AIR2000Mad465, 2000-3-LW793

IN THE HIGH COURT OF MADRAS

Second Appeal No. 1791 of 1992
Decided On: 27.03.2000
Appellants: S. Madasamy Thevar
Vs.
Respondent: A.M. Arjuna Raja
Hon'ble Judges/Coram:
S. Thangaraj, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.P.H. Thulasiraman, Adv.
For Respondents/Defendant: S.V. Jayaraman, S.C.
Case Note:

Civil - question of law - Section 103 of Code of Civil Procedure, 1908 -

whether High Court can determine issue regarding title not determined by
Appellate Court properly in exercise of its powers under Section 103 - High
Court in second appeal can interfere with findings of Trial Court on ground
of failure on part of Trial Court as well as First Appellate Court when such
findings either recorded without proper construction of documents or on
assumption not supported by evidence.

JUDGMENT
S. Thangaraj, J.
1 . The respondent in A.S. No. 91 of 1989 on the file of the Subordinate Judge.
Srivilliputhur has filed this Second Appeal challenging the Judgment and decree
passed by the said Court.
2 . The respondent/plaintiff filed O.S. No. 422 of 1984 on the file of the District
Munsif. Srivilliputhur for declaration and injunction. The trial Court after full trial,
dismissed the suit and the unsuccessful plaintiff filed A.S. No. 91 of 1989 on the file
of the Subordinate Judge, Srivilliputhur who allowed the appeal and hence, the
Second Appeal.
3. The following substantial questions of law are framed in the Second Appeal:--
(1) Whether the judgment and decree of the lower appellate Court is in
accordance with Order 41, Rule 31, C.P.C.?
(2) in a suit for declaration of title and for consequential injunction does not
the initial burden of proof lie on the plaintiff?

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 (3) in keeping with the Initial burden. Is not the plaintiff bound to prove his
case by positive evidence on his side, rather than by reliance on the
loopholes, if any. on the side of the defendant?
(4) is not secondary evidence as provided under Section 65 of the Indian
Evidence Act worthy of credence and entitled to be acted upon and in the
absence of the original in any way detract from the merits of a case?
(5) in the absence of a clear and specific finding as to actual possession and
enjoyment, is the plaintiff entitled to a consequential relief of permanent
injunction on mere proof of title alone?
(6) Should a Court be swayed by the volume of evidence in a case without
testing its quality?
On 7-1-2000, both the parties requested this Court to frame an additional substantial
question of law which is as follows :--
Whether the High Court can determine issue regarding title, which has not
been determined by Appellate Court properly, in exercise of its powers under
Section 103 of Code of Civil Procedure?
4. The suit properties shown in 'A' and 'B' schedule in the plaint are 20 cents and 66
cents respectively are in Rajapalayam. Both the parties claimed title to the suit
properties and each one of them have produced their respective title deeds, apart
from oral evidence let in by them in support of their respective contentions. As the
defendant is the appellant herein, we have to consider his case in proper perspective
and at the same time without forgetting the general principle that the plaintiff has to
prove his case and he cannot succeed by taking advantage of lack of evidence in the
case of the defendant. Though the trial Court approached the matter by considering
the evidence let in by the plaintiff and at the same time the evidence adduced on the
side of the defendant and has come to the conclusion. The first appellate Court while
elucidating the various facts has written the judgment in such a way to have a feeling
in the minds of those who read the judgment that it has shifted the burden of proof
on the defendant. A perusal of the judgment with some care would go to show that
the first appellate Court has also approached various issues on the basis of the claim
made by the plaintiff, the appellant before the said Court and the way in which the
facts were considered by shifting the burden on the defendant is not in accordance
with law. However, the questions of facts are expected to be decided by the trial
Court as well as the first appellate Court and the High Court in the Second Appeal
should act on the question of law. While approaching the present Second Appeal by
bearing the principle in mind, learned counsels for both sides felt that in the
circumstances of the present case, the High Court in the Second Appeal has to
consider the question of law on the basis of the facts presented by the respective
parties along with the various substantial questions of law framed in the Second
Appeal. In this case, learned counsels for both sides by consent requested this Court
to frame an additional substantial question of law in order to satisfy the provisions of
Section 103, C.P.C. I do not think it necessary to state the definition of Section 100,
C.P.C. However, it will be apt to quote a recent decision of the Supreme Court in Hari
Singh v. Kanhaiya Lal MANU/SC/0548/1999 : AIR 1999 SC 3325 wherein their
Lordships have held (Para 10):--
Sub-section (3) places an obligation on the appellant to precisely state the
substantial question of law involved in the appeal. Sub-section (4) confers

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 on the High Court an obligation to formulate the substantial question of law,
if it is satisfied that it is involved. Then Sub-section (5) confers right on the
respondent to urge that no substantial question of law arises. The proviso
supplements the discretion to the Court to formulate if some other
substantial question of law arises if not formulated. The aforesaid scheme of
this section clearly reveals the intent of the legislature to limit the exercise of
power of the High Court under Section 100. Thus the existence of a
substantial question of law is the sine qua non for the exercise of power by
the High Court under this Section.
5. Their Lordships of the Supreme Court in the recent years have held in number of
decisions that the concurrent findings of fact arrived at by the Court below should not
be interfered with by the High Court in the Second Appeal, however, erroneous they
may be or the High Court should not substitute its subjective satisfaction in the place
of those given by the Court below.
6 . In Navaneethammal v. Arjuna Chetty AIR 1996 SC 3521, it was held by their
Lordships of the Supreme Court that the High Court should not reappreciate the
evidence to reach another possible view in order to set aside the findings of fact
arrived at by the first appellate Court.
7 . In Kshitish Chandra Purkait v. Santosh KumarPurkait MANU/SC/0647/1997 : AIR
1997 SC 2517 , their Lordships of the Supreme Court have held that in the Second
Appeal, the High Court should be satisfied that the case involves a substantial
question of law and not mere question of law.
8 . In Ninge Gowda v. LingeGowda MANU/SC/1009/1997 : (1997) 1 SCC 477 . the
High Court has wrongly framed an issue and on appreciation of evidence reversed the
finding of fact recorded by the first appellate Court and in such circumstances, the
Supreme Court has held that the appreciation of evidence by the High Court under
Section 100, C.P.C. therefore is unwarranted to reverse the findings of fact recorded
by the first appellate Court, which is the final Court of fact.
9. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor MANU/SC/0058/1999 :
AIR 1999 SC 864 . their Lordships have held (Para 11 of AIR) :--
Keeping in view the amendment made in 1976, the High Court can exercise
its jurisdiction under Section 100, C.P.C. only on the basis of substantial
questions of law which are to be framed at the time of admission of the
second appeal and the second appeal has to be heard and decided only on
the basis of such duly framed substantial questions of law. A judgment
rendered by the High Court under Section 100, C.P.C. without following the
aforesaid procedure cannot be sustained.
1 0 . In Kamataka Board of Wakf v. Anjman-E-Ismail Madris-UN-Niswan
MANU/SC/1584/1999 : (1999) 6 SCC 343 . their Lordships of the Supreme Court
have held--
High Court's reversal of the concurrent findings of the trial and appellate
Courts and substituting its subjective satisfaction in the place of that of the
lower Courts was wholly unwarranted.
11. Their Lordships of the Supreme Court in Kondiba Dagadu Kadam v. Savi tribal
Sopan Gujar MANU/SC/0278/1999 : [1999] 2 SCR 728 have held (Para 5):--

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 The High Court cannot substitute its opinion for the opinion of the first
appellate Court unless it is found that the conclusions drawn by the lower
appellate Court were erroneous being contrary to the mandatory provisions
of law applicable or its settled position on the basis of pronouncements made
by the Apex Court, or was based upon inadmissible evidence or arrived at
without evidence.
12. From these recent decisions, it is clear that under Section 100, C.P.C., the High
Court cannot interfere with the findings of fact arrived at by the first appellate Court
which is the final Court of facts except in such cases where such findings were
erroneous being contrary to the mandatory provisions of law, or its settled position
on the basis of the pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.
13. The High Court ordinarily will not interfere with the concurrent findings of the
Courts below or the findings of the first appellate Court which is the final Court of
facts and the findings can be set aside on valid reasons as contemplated under law.
Very many decisions say various reasons for such interference by the second
appellate Court on the findings of fact by the first appellate Court. To show how their
Lordships have earlier construed such position before the amendment in the year
1976, it is apt to quote some of the earlier decisions on this point.
14. In Shivabasava v. Sangappa (1905) ILR 29 Bom 1 (PC), it was held--
Affirming the decision of the High Court that such a disposal of the suit was a
"substantial error or defect of procedure" within the meaning of Section 584
of the Civil Procedure Code (Act XIV of 1882) and that the High Court
therefore had Jurisdiction to set aside the finding on second appeal.
15. In Ramachandra v. Ramalingam MANU/SC/0016/1962 : [1963] 3 SCR 604 . It
was held (Para 10)--
In hearing a second appeal, if the High Court is satisfied that the decision is
contrary to law or some usage having the force of law, or that the decision
has failed to determine some material issue of law or usage having the force
of law, or if there is a substantial error or defect in the procedure provided
by the Code, or by any other law for the time being in force which may have
produced error or defect in the decision of the case upon the merits, it can
interfere with the conclusions of the lower appellate Court.
16. In Sonawati v. Sri Ram. MANU/SC/0291/1967 : [1968] 1 SCR 617 , the Supreme
Court has held that the first appellate Court did not refer to important pieces of
evidence and therefore such conclusion cannot be regarded as binding upon the High
Court in Second Appeal.
17. In Radha Nathan v. Haripada MANU/SC/0543/1970 : AIR 1971 SC 1049 , it was
held (Para 4)--
It has been urged that under Section 100, Civil Procedure Code, it was not
open to the High Court to interfere with questions of fact. The High Court has
pointed out that certain material evidence in the shape of documents was not
considered by the first appellate Court and a good deal of assumptions of
fact were made. Apart from that on proved and admitted facts it was open to
the High Court to find what the nature of the tenancy was.

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18. In Budhwanti v. Tulab Chand Praaad MANU/SC/0745/1987 : [1987] 2 SCR 534 ,
it was held (Para 11)--
It is true that in a second appeal a finding on fact even if erroneous will
generally not be disturbed but wherein it is found that the findings is vitiated
by application of wrong tests or on the basis of conjectures and assumptions
then a High Court will be well within its rights in setting aside in a second
appeal patently erroneous finding in order to render justice to the party
affected by the erroneous finding.
19. In J. B. Sharma v. State of Madhya Pradesh MANU/SC/0028/1998 : [1998] 1 SCR
85 . It was held (Para 14 of AIR) :--
It will thus be seen that the first appellate Court while recording the finding
acted on an assumption not supported by any evidence and further failed to
consider the entire document on the basis of which the finding was recorded.
The High Court was, therefore, justified under Section 100 of the Code of
Civil Procedure to set aside the finding.
20. In S.V.R. Mudaliar v. Rajabu F. Buhari MANU/SC/0712/1995 : [1995] 3 SCR 312
, it was held (Para 15)--
There is no need to pursue the legal principle, as we have no doubt in our
mind that before reversing a finding of fact, the appellate Court has to bear
in mind the reasons ascribed by the trial Court. This view of ours finds
support from what was stated by the Privy Council in Rani Hemant Kumari v.
Maharaja Gagadhindra Nath (1906) 10 CWN 630, wherein, while regarding
the appellate judgment of the High Court of Judicature at Fort William as
"careful and able", it was stated that it did not come to close quarters with
the judgment which it reviews, and indeed never discusses or even alludes to
the reasoning of the Subordinate Judge.
21. In Kochukakkada Aboobacker v. Attah Kasim MANU/SC/0815/1996 : [1996] 1
SCR 570 , the Supreme Court has held (Para 3)--
Having considered the totality of the facts and circumstances, we are of the
considered view that the learned Judge had rightly interfered with the
concurrent finding of fact recorded by the trial Court and appellate Court and
granted a preliminary decree for partition. We do not find any error of law
much less substantial question of law, for interference.
22. In Surain Singh v. Mehenga MANU/SC/1092/1996 : [1996] 1 SCR 1152 , their
Lordships of the Supreme Court have held--
Though normally the High Court might have interfered with the finding
recorded by the appellate Court, in view of the diverse views by the trial
Court and the appellate Court, the High Court was impelled to go into the
question and recorded a finding. The material evidence and relevant
circumstances were not adverted to by the first appellate Court. The High
Court, therefore, had done that exercise. It being a finding of fact, we do not
find it a fit case for our further interference.
2 3 . In Mehrunnisa v. Visham Kumari AIR 1998 SC 427 their Lordships have
considered three earlier decisions of the Supreme Court, wherein it was pointed out

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(1) if the finding was of an assumption not supported by evidence and failure to
consider the entire document; (2) failure to consider the entire relevant evidence and
also to consider the evidence having direct bearing; (3) failed to have proper
construction of the documents and inferences have not legally be drawn, the High
Court was justified in interfering with such findings. Affirming those reasons. Their
Lordships have held that the judgment of the High Court interfering with the findings
of the lower appellate Court was justified.
24. This Court in Rajammal v. Ramasami (1998) 1 MLW 451 held--
Since the lower Appellate Court has Ignored the weight of circumstances and
allowed its judgment to be influenced by inconsequential matters, this Court
is entitled to interfere under Section 100 of the Code of Civil Procedure.
25. In Rajiah Nadar v. Manomani Ammal MANU/TN/0030/1999 : AIR 1999 Mad 213 ,
this Court after considering Section 100. C.P.C. held (Para 25)--
There is no justification to construe Section 100 in a very narrow and
restricted sense and the recent trend has been in favour of keeping an open
eye as against the glaring misreading, misquoting or failure to consider
crucial evidence. These judgments wilt also show that the Supreme Court had
not only upheld the interference by the High Court against the findings
rendered by the first appellate Court, but also as against the concurrent
findings of fact by both the lower Courts on several grounds.
26. The High Court in the Second Appeal can interfere with the findings of the trial
Court on the ground of failure on the part of the trial as well as the first appellate
Court, as the case may be, when such findings are either recorded without proper
construction of the documents or failure to follow the decisions of the Apex Court and
acted on assumption not supported by evidence. Under Section 103, C.P.C., the High
Court has got power to determine the issue of fact. The Section lays down:--
Power of High Court to determine issue of fact :-- in any second appeal, the
High Court may, if the evidence on the record is sufficient determine any
issue necessary for the disposal of the appeal .--
(a) which has not been determined by the lower Appellate Court or
both by the Court of first instance and the lower Appellate Court; or
(b) Which has been wrongly determined by such Court or Courts by
reason of a decision on such question of law as is referred to in
Section 100.
27. In Bhagwan Sharma v. Bani Ghosh MANU/SC/0094/1993 : AIR 1993 SC 398 .
Their Lordships of the Supreme Court have held (para 5) --
The High Court is certainly entitled to go into the question as to whether the
findings of fact recorded by the first appellate Court which was the final
Court of fact were vitiated in the eye of law on account of non-consideration
of admissible evidence of vital nature. But, after setting aside the findings of
fact on that ground the Court had either to remand the matter to the first
appellate Court for a rehearing of the first appeal and decision in accordance
with law after taking into consideration the entire relevant evidence on the
records, or in alternative to decide the case finally in accordance with the

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 provisions of Section 103(b). If in an appropriate case the High Court
decides to follow the second course, it must hear the parties fully with
reference to the entire evidence on the records relevant to the issue in
question and this is possible if only a proper paper book is prepared for
hearing of facts and notice is given to the parties. The grounds which may be
available in support of a plea that the finding of fact by the Court below is
vitiated in law does not by itself lead to the further conclusion that a contrary
finding has to be finally arrived at on the disputed issue. On a reappraisal of
the entire evidence the ultimate conclusion may go in favour of either party
and it cannot be prejudged.
28. This Court in Rahmathulla Shutthari alias Peer Hazarath v. The Muslim Jamath of
Eachampatti (1998) 1 M LW 413 held that the High Court in the Second Appeal can
consider such material evidence which were not considered by the Courts below or
wrongly determined.
2 9 . Under Article 133 of the Constitution of India, Civil Appeal shall lie to the
Supreme Court from the judgment, decree or final order in a civil proceedings of a
High Court if the High Court certifies under Article 134A. In one such appeal filed
under Article 133 of the Constitution of India in M.S. Jagadambal v. Southern Indian
Education Trust MANU/SC/0529/1987 : [1988] 1 SCR 722 . It was contended that the
trial Court did not frame an issue as to the defendants perfecting title to the suit
property by adverse possession and that has caused prejudice to the defendants.
Their Lordships have held (Para 11 of AIR) --
We are not persuaded by the alternate contention urged by learned counsel
for the respondents. The trial Court did not frame an Issue as to the
defendants perfecting title to the suit property by adverse possession. The
defendants did not produce an evidence in support of the plea of adverse
possession. It is not the case of the defendants that they were misled their
approach to the case. It is also not their case that they were denied
opportunity to put forward their evidence. It is, therefore, not proper for us
at this stage to remand the case to enable the defendants to make good their
lapse.
30. In the instant case also, the defendant/appellant has pleaded for prescription of
title by adverse possession and the trial Court has not framed any issue and thereby
the trial Court as well as the first appellate Court has no opportunity to decide the
said question. However, the appellant has candidly admitted, though it was stated in
the written statement no such plea was taken during trial of the case. This decision
supports the view that civil case cannot be remanded back to the Court below in
order to decide any question of fact which was not properly pleaded and no evidence
was let in by the parties in support of the said plea.
3 1 . While considering Order 41, Rule 23, C.P.C. Their Lordships of the Supreme
Court in Ashwinkumar K. Patelv. Upendra, J. Patel MANU/SC/0153/1999 : AIR 1999
SC 1125
In our view, the High Court should not ordinarily remand a case under Order
41, Rule 23, C.P.C. to the lower Court merely because it considered that the
reasoning of the lower Court in some respects was wrong. Such remand
orders lead to unnecessary delays and cause prejudice to the parties to the
case. When the material was available before the High Court, it should have

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 itself decided the appeal one way or other, it could have considered the
various aspects of the case mentioned in the order of the trial Court and
considered whether the order of the trial Court ought to be confirmed or
reversed or modified. It could have easily considered the documents and
affidavits and decided about the prima facie case on the material available.
In the instant case, learned counsel for both sides have admitted that the Second
Appeal need not be remanded back to the Court below and this Court itself can look
into the relevant materials available on record and pass a judgment in accordance
with law.
32. At the time of admission of the Second Appeal, six substantial questions of law
have been framed and in addition to that, as requested by both parties one more
additional substantial question of law has been framed in this Second Appeal.
3 3 . To appreciate the case of respective parties, it is better to state the facts in
nutshell without offending the provisions of Section 100, C.P.C. and all the same time
by utilising the provisions of Section 103, C.P.C.
3 4 . Originally, 'A' and 'B' schedule properties belonged to one Arumuga Perumal
Moopanar. One Balkish Ammal filed O.S. No. 16 of 1949 before the Subordinate
Judge, Ramnad District at Madurai against him and obtained a decree and
subsequently in E.P. No. 50 of 1959, the properties were brought in Court auction on
4-1-1960 and Balkish Ammal herself purchased the property for Rs. 23,301 in the
Court auction sale and the sale was confirmed by the Court on 4-1-1960. Balkish
Ammal took possession of the suit properties shown under item Nos. 5, 6 and 7 of
the sale certificates and also other properties. Baikish Ammal had two sons by name
Mohammed Ebrahim, and Mohammed Ismail and she executed a gift deeds Exs. A14
and A15 dated 3-5-1969 in respect of undivided half share in 86 cents in favour of
Ismail and Ebrahim respectively. The gifts were acted upon and Ebrahim and Ismail
were in possession and enjoyment of the properties, on 1-9-1983 Ismail and Ebrahim
executed Ex. A4 sale deed selling 20 cents of the said property ('A' schedule ) in
favour of one Subramaniam and delivered possession to him. Subramaniam in turn
sold the property under Ex. A5 sale deed in favour of the plaintiff Arjunaraja who has
taken possession of the property. Mohammed Ibrahim died. His wife and children
were in possession of the remaining properties conveyed under Ex. A-15. The
plaintiff by a registered sale dated 17-8-1984 purchased the said property from them.
Similarly, he has also purchased the other half share from Mohammed Ismail on the
same day under Ex. A8 and thereafter he became the owner of 66 cents of land
shown under 'B' schedule also.
35. The defendant/appellant has contended that he purchased the properties under 9
sale deeds marked as Exs. B2 to B10 and since then he has been in possession and
enjoyment of those properties which includes 'A' and 'B' schedule. In order to prove
his possession, he has relied on Exs. B-18 to B-23 and also Exs. B-16 and B-17
Approved Plans to prove the construction of building in the said property. The parties
face difficulties because of the failure to state the boundaries of the lands purchased
by each one of them under various documents. The respondent/plaintiff has
contended that the properties purchased by him are comprised in Adangal Nos. 122,
123 and 124 whereas the defendant had contended that he has purchased 1 acre and
86 cents of land in Adangal Nos. 122, 123 and 124. The parties relied on various
documents and it was the contention of the parties that the documents were not
properly considered and construed by the Courts below. The trial Court dismissed the

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suit on the ground that the plaintiff/respondent has failed to locate the property
properly and that the defendant/appellant herein has proved his possession over the
said property by showing the construction put up by him on the said land, however,
the first appellant Court has reversed the findings of the trial Court, and according to
the appellant herein, the first appellate Court reversed and interfered with the
findings of the trial Court on the grounds that (1) the defendant has not examined his
vendor, and (2) that the original sale deeds were not filed by the defendant. Learned
counsel for the defendant/appellant herein has elaborately argued the case on the
basis of documents and concluded his arguments saying that the lands shown under
'A' and 'B' schedule properties were purchased by the appellant and they are in his
possession and enjoyment and that the plaintiff/respondent who has neither proved
his title nor possession, is not entitled to the relief prayed for by him. Learned
counsel for the appellant further added that the reasons stated by the first appellate
Court are not in accordance with law and the same is liable to be corrected in the
appeal. The reason stated by the first appellate Court is that the appellant herein has
not examined any of the predecessors in title who had sold the properties in favour of
the appellant under Exs. B2 to B10. The first appellate Court has construed the
position of law, that it was for the plaintiff/respondent to prove his case and it is not
for the appellant/defendant to prove his contention by examining the vendors of the
said documents. Further, it was argued that even as per the documents produced by
the appellant herein, he has made out a clear case for his title, possession and
enjoyment of the suit property and without looking into the said documentary
evidence, the lower Court has relied upon the oral evidence of the vendors. One of
the reasons stated by the learned counsel for the appellant that the first appellate
Court should have arrived at its conclusion on the basis of the case of the plaintiff
and not on the weakness of the case of the defendant/appellant. The next reason
stated by the first appellate Court is that the appellant herein has not produced any
original documents in order to substantiate his case whereas the plaintiff has
produced all original documents.
3 6 . Learned counsel for the appellant has relied on a decision of this Court in
Karuppanna v. Kolandaswami MANU/TN/0265/1954 : AIR 1954 Mad 486 , wherein it
was held (para 4) --
When once the case for the introduction of secondary evidence is made out,
certified copy got from the Registrar's office can be admitted under Section
57. Sub-section (5) of the Registration Act, without other proof than the
Registrar's certificate of the correctness of the copy and shall be taken as a
true copy. As the certified copy obtained from a Registrar's office is
admissible under Section 57(5), Registration Act, for the purpose of proving
the contents of the original documents, the mere production of such copy,
without any further oral evidence to support it, would be enough to show
what the original document contained.
37. In Subudhi Padhan v. Raghu Bhuvan MANU/OR/0016/1962 : AIR 1962 Ori 40 . It
was held (para 8) -
A certified copy of a registered mortgage deed may be admissible in evidence
under Section 65(e) Evidence Act, as secondary evidence but that does not
dispense with the proof of actual execution.
38. In Padmanabhachari v. Sithpathirao (1954) 2 MLJ 75. It was held --

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 The certified copy is therefore, admissible under Section 65(e) and (f) of the
Evidence Act. The certified copy therefore is secondary evidence of the public
record of the mortgage deed kept in the Registrar' office. Again by invoking
Section 57(5), the said copy becomes admissible for the purpose of proving
the contents of the original document itself.
39. From these decisions, the certified copies of the documents obtained from the
Registrar's office are admissible and though they are secondary evidence, it cannot be
said that they are totally inadmissible and cannot be relied upon by the Courts.
Though the reasons stated by the first appellate Court are not acceptable, we have to
consider the question of law on the basis of the documents.
40. Learned counsel for the appellant has relied upon the documents filed by the
appellant and argued that Exs. B-2 to B-10 show that the appellant has purchased the
suit properly and he has been in possession and enjoyment of the property. Learned
counsel further argued that the first appellate Court has not considered the
possession of the property on the date of filing of the suit. Exs. B14 to 24 show that
the appellant has constructed building on the suit property and he has been paying
the tax to Rajapalayagam Municipality, whereas the respondent/plaintiff has not filed
any such documents to prove his possession and enjoyment of the property. Learned
counsel for the appellant has pointed out that in Ex. A1 the name of Arugama
Perumal is shown and that alone will not give any right to the respondent, as Patta is
not a document of title. He has further pointed out that under Exs. A 2 and A3 the
boundaries of the property sold under Court auction are not given and the boundary
shown under Exs. A5, A-7 and A-8 differ with the boundaries shown under Ex. A4. He
has also pointed out that the boundaries shown under Exs. A22 and A25 do not tally
with the present boundaries and without showing the boundaries, the
respondent/plaintiff cannot locate or Identify the property in G.R. No. 1278/11, the
total extent of which is nearly 1 acres 48 cents. As per Ex. B11 settlement
Zamabandhi Chitta, it is shown that the appellant is entitled to 0.59.5 ares in G.R.
No. 1278/11.
4 1 . Learned counsel heavily relied upon Ex.B1 order passed by the Tahsildar
Rajapalayam dated 14-3-1985. The plaintiff's vendor Subramaniam has sent an
application to the Tahsildar, Rajapalayam to include his name as a joint pattadar in
G.R. No. 1278/11 and the then Tahsildar by his order dated 2-12-1983 allowed the
said application and Included Subramaniam as one of the joint pattadars in respect of
the land in G.R. No'. 1278/11. The appellant herein filed an appeal before the
Revenue Divisional Officer, Slvakasi and the Revenue Divisional Officer set aside the
order of the Tahsildar on two grounds (1) the appellant Madasamy Thevar was not
examined by the Tahsildar. (2) on the basis of the documents, the Tahsildar failed to
see the actual land to find out whether the parties are entitled to any land in G.R. No.
1278/11. As per the directions given by the Revenue Divisional Officer for further
enquiry, the then Tahsildar Rajapalayam after following the decision of the Revenue
Divisional Officer passed his order dated 14-3-1985 which is marked as Ex. B1.
Learned counsel for the respondent has pointed out the orders of the District Revenue
Officer under Ex. B18 wherein he has held that since the present suit was pending in
Civil Court, the judgment and decree passed by the Court should be considered and
thereafter, the Tahsildar can pass orders regarding the grant of joint patta in the
name of Subramaniam. the plaintiffs vendor. Learned counsel for the respondent has
contended that since the District Revenue Officer under Ex. A 18 has set aside Ex. B1
order, the appellant cannot rely upon Ex. B1. It was argued on the side of the
appellant that though the order was set aside awaiting the decision of the Civil Court,

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there is nothing wrong in looking the order, as the Tahsildar has visited the
properties in question and also has given his order after going through the various
documents filed by the parties. When we peruse Ex. B1 and Ex. A18 it is clear that
Ex. B1 was not set aside by the District Revenue Officer under Ex.A18 after
considering the merits of the documents and it was an order passed awaiting the
decision of the Civil Court. Ex. B1 can be taken into consideration to a limited extent
and the fact remains that the Tahsildar after visiting the said properties and also
considering the various documents has come to the conclusion that the properties of
the respondent do not lie in G.R. No. 1278/11.
42. Learned counsel for the respondent has pointed out that the plaint averments
give the entire particulars regarding the source of title of the respondent. Under
Ex.A2 item Nos. 5, 6 and 7 are the suit properties herein and in Exs. A4 and A5, G.R.
No. 1278/11 is given and apart from that in Ex. A5 Adangal 122, 123.
124arealsogivenandthosearealr reasons which made the first appellate Court to set
aside the findings of the trial Court and to pass a judgment and decree in favour of
the respondent. Learned counsel for the appellant has argued that G.R. No. 1278/11
comprised of nearly 20 acres of lands and therefore, the respondent cannot rely much
upon G.R. number and it is for the plaintiff to identify the lands. Without proper
identification, no decree can be passed in his favour.
43. When we consider the substantial questions of law framed by this Court, at the
time of taking the Second Appeal on the first question is in respect of Order 41, rule
31. C.P.C. The said rule deals with content, date and signature of judgment. Order
41, Rule 31(a). C.P.C. deals with the "points for determination". Learned counsel for
the appellant has argued that the first appellate Court has not framed the proper
points for determination in the appeal whereas the only point framed is omnibus in
nature. The only point raised by the first appellate Court is whether the judgment and
decree of the trial Court are to be set aside and the appeal to be allowed ? it would
have been better if the first appellate Court has framed sufficient points for its
consideration in the appeal. However, though sufficient points are not framed for
determination, the first appellate Court has considered all the relevant questions
raised by the parties in the first appeal and also oral and documentary evidence and
thereafter has come to the conclusion of reversing the judgment and decree passed
by the trial Court. In such circumstances, as the relevant points are all considered by
the first appellate Court, it cannot be said that the said Court has not followed Order
41, Rule 31(a), C.P.C.
44. In a suit for declaration of title and consequential injunction, the initial burden or
his right over the properties and also his possession is on the plaintiff. Learned
counsel for the appellant has argued that the trial Court has rightly considered those
points and held that the plaintiff has not proved his title as well as possession to the
property and dismissed the suit. The first appellate Court has taken a different view
and thereby it allowed the appeal and decreed the suit in favour of the plaintiff for
declaralion and injunction. As far as the Second Appeal is concerned, though the
appellant is the defendant, yet the respondent, as plaintiff has not prove his title and
possession of the property, otherwise the decree passed in his favour by the first
appellate Court cannot be confirmed. In a suit for declaration of title and for
consequential injunction, it is the duty of the plaintiff to prove his case and he cannot
place any reliance on the loopholes in the case of the defendant. In the instant case,
the appellant has filed documents to prove his possession and the Court below
without considering the various documents filed by the appellant has granted
permanent injunction in favour of the plaintiff. Learned counsel has argued that

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possession follows title and since the possession is with the appellant who has filed
number of documents to show that he was in possession and enjoyment of the
property apart from his title, the first appellate Court ought not to have disturbed the
well considered findings of the trial Court. Exs. B13 to B24 show that the appellant is
in possession and enjoyment of the property. He has also produced Exs. B1 to B10
and B12 title deeds in his favour to prove his title to the property. By placing reliance
on these documents, learned counsel further contended that as the defendant has
produced number of documents to prove his title and possession of the suit property
the suit filed by the plaintiff was rightly dismissed by the trial Court, whereas the first
appellate Court erred in allowing the appeal without any basis whatsoever. Learned
counsel for the respondent/plaintiff has argued that he has proved his title and
possession through documentary and oral evidence, since the first appellate Court
has found that the plaintiff has title to the property and also he is in lawful
possession of the same and it has reversed the findings of the trial Court and allowed
the appeal. Both of them cannot have title to the same property so also possession.
The real dispute between the parties is the location of the property and also the
identification of the same through documents. In a Second Appeal, once again the
question of fact cannot be gone into, however, the additional question of law framed
referring Section 103, C.P.C. would give a helping hand in solving the dispute
between the parties. The various decisions stated supra would go to show that this
Court can consider the case of the parties as a whole in the Second Appeal and there
is no bar weighing the documents available in the case.
45. It was argued on the side of the appellant that the title without possession of the
property will not give any right to an party to get consequential injunction from a
Court of law. It was further contended that on the basis of the various documents
filed by the respondent, he cannot get an injunction restraining the appellant, since
the actual possession is with the appellant. The appellant has relied upon the
judgment of the trial Court and argued that the said Court has come to a correct
conclusion that the plaintiff/respondent has not proved his title to the suit property
and such a finding was interfered with by the first appellate Court on unacceptable
grounds. Learned counsel for the respondent/plaintiff has argued that the appellant
has produced various documents to prove his title through his predecessors since
1943. In the written statement, there is a specific plea by the appellant herein that
the documents of the plaintiff do not contain G.R. No. 1278/11 and all those
documents cannot be taken to prove that the suit property was conveyed in those
documents. PW 4 has stated that Adangal Nos. 122, 123 and 124 are to the total
extent of 20 acres whereas G.R. No. 1278/11 is to the total extent of 1 acre 48
cents.. His evidence further shows that patta No. 260 stands in the name of Ebrahim
and Ismail and Madasamy, the appellant herein. The defendant has filed Ex. B14, the
ground plan of G.P. No. 1278. wherein sub-division No. 11 has been shown. The
respondent/plaintiff has filed property tax receipt s Exs. A16, A17, and A20 where
neither Adangal Number nor G.R. Number is shown. Ex. A10 tax receipt stands in the
name of the respondent's vendor Subramaniam also do not contain G.R. Number of
Adangal Number. Ex.All is after suit. Exs. A2 and A3 do not contain the boundaries of
the property conveyed. It was also pointed out by learned counsel for the appellant
that there is difference between boundaries of the land in south, north and west
shown under Exs. A4 and A5. Exs. A7 and AS. the title deeds of the respondent for 'B'
schedule property, contain the name of the appellant in the schedule as "North of
Madasamy's land". Ex.B1 the order passed by the Tahsildar shows that the
respondent/plaintiff has no right in G.R. No. 1278/11. Under Ex. B18, the District
Revenue Officer set aside the order on that ground since the present suit was filed at
that time and therefore, the. Distirict Revenue Officer has stated that subject to the

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result of the civil suit, the name of the successful party can be entered into in the
revenue records. The fact remains that in Ex. B1, the Tahsildar has verified the
documents of both parties as also the actual ground by Inspecting the place and
thereafter has come to the conclusion that the respondent/plain tiffs documents do
not show that he has not got any title in G.R. No. 1278/11. As already stated, it is for
the plaintiff/respondent to prove his case and he cannot rely upon the inconsistency
or loopholes or insufficiency of materials in the case of the defendant. As it is
abundantly clear that the plaintiff/respondent has failed to prove his clear title to the
property, he is not entitled for the declaration and the decree passed by the first
appellate Court cannot sustain.
46. The main contention in substantial question of law (Nos. 5) is that even though
the relief of declaration is granted in favour of one party when the actual possession
is found in the hands of the other party whether a consequential Injunction can be
granted in favour of the party in whose favour a decree for declaration is passed.
Such a question is very general. In a civil suit wherein parties claim the property
either under title or of possession or of both, the appropriate relief has to be given
on considering their claims. In the present suit, both parties claim ownership in
respect of the same property and the defendant/appellant has furnished Exs. B16 and
B17 to prove that he has constructed the building in the said property with the
approval of Rajapalayam Municipality. Exs. B18 to B23 show that he has paid
property tax for the said property. The evidence of DW 1 would go to show that he
has constructed a small Mill under the name and style Thiruvalluvar Mill and also
constructed quarters for the workers working in the Mill. The actual possession is
with the defendant/appellant and not with the plaintiff/respondent. As far as this case
is concerned, no declaration can be given to the respondent/plaintiff and therefore,
he is not entitled to any consequential injunction.
47. When we consider the substantial question of law (No. 6), it is also a question of
general importance and when we decide the case of parties on the basis of evidence
available on record by applying the law on that point, the various questions of
general importance need not be considered, unless such situation arose in any
particular case. In the instant case, on such situation has arisen to decide no a
question of general nature and both the parties have produced voluminous
documentary evidence to prove their title to the suit property. As far as possession is
concerned, the appellant has produced substantial documents than the respondent.
What ever may be the amount to evidence produced, it is only the quality or essence
of such evidence which is necessary to decide the actual issue which has arisen in a
particular case. However, it is well settled that it is not the quantity but the quality of
evidence which gives a helping hand to get any appropriate relief by the parties.
48. While considering the additional issue, we have given substantial reasons in the
foregoing paragraphs basing on the decisions of Their Lordships of the Supreme
Court and any such question of law which is necessary for deciding the right of the
parties on the basis of documents can be considered by the High Court in the Second
Appeal. The various reasons pointed out by the Supreme Court are also stated in the
foregoing paragraphs and in accordance with such decisions, the case of the parties
herein are considered to arrive at a conclusion on the basis of the questions of law.
49. The substantial questions of law framed in the Second Appeal are answered in
the foregoing paragraphs and accordingly, the judgment and decree passed by the
first appellate Court is liable to be set aside.

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50. In the result, the judgment and decree in A.S. No. 91 or 1989 on the file of the
Subordinate Judge, Srivilliputhur are set aside and that of the trial Court are restored
and the Second Appeal is allowed, accordingly. In the circumstances of the case, the
parties shall bear their respective costs throughout.

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