A.C. Arumugaperumal Adityan, J.@mdashThis appeal has been directed against the decree and judgment in A.S. No. 5 of 1999 on the file of the Court of Principal District Judge, Srivilliputtur, which had arisen out of the decree and Judgment in O.S. No. 734 of 1996 on the file of the Additional District Munsif, Srivilliputtur. The unsuccessful plaintiff is the appellant herein. According to the plaintiffs, the plaint schedule property belonged to Arulmigu Kaliyaman temple, which is also known as Moopeedathi Amman Temple. The pedestal on which the idol was erected and the lamp post nearly are all situated in the plaint schedule property. The extent of the same is 0.08.0 Ares. According to the plaintiffs, the plaint temple belongs to the people belonging to the Pillaimar, Maravar, Devendra Kula Vellalar, Nayakar, Konar, Chettiar, Asari community of S. Ramalingapuram Village. The suit property is being managed by the people belonging to Devendra Kula Vellalar community. The defendants have no inch of land near the plaint schedule property. The defendants are residing about 400 yards away from the suit property at a village called S. Ramalaingapuram. The defendants have money power. The plaint schedule property is being used for the people, who gather at Pongal festival to offer their offerings to the daity. Rest of the year, the suit property is being used as a vacant cite. Only during the festival time, the plaintiffs used to errect pandal in the plaint schedule property. The defendants made an attempt to encroach upon the plaint schedule property on 10.12.1996 and they have heaped sand and bricks at the suit property for the purpose of constructing their building. The foundation has been dug by the defendants on 12.12.1996 in the suit property. The defendants have also constructed a compound wall in the suit property at a length of 100 feet. Hence, the suit for declaration that the plaint schedule property belongs to Kaliyamman Koil @ Moopeedathi Amman Koil and for consequential injunction and mandatory injunction for the removal of the compound wall to an extent of 100 feet constructed by the defendants in the suit property.
2. The defendants 1, 3 & 4 have adopted the written statement filed by the 2nd defendant which runs as follows:-
The suit is not maintainable and the suit property does not belong to the plaintiffs. In the capacity of Nadar Uravinmurai, one Subha Nadar had purchased the suit property on 10.01.1921 for a sum of Rs. 80/- under a registered document. In the year 1995 the defendants have also dug a Well in the plaint schedule property. The said Well is being used by the defendants and they are performing the last rites incase of death of a member belonging to the defendants'' community in the said well. The said Well is being used for the past 70 years by the defendants. The defendants are using the plaint schedule property for stocking hayricks and fire woods. Except the defendants no one else is having any right, title or possession in respect of the suit property. Patta stands in the name of Nadar Uravinmurai of S. Ramalingapuram and land tax is being paid only by the defendants. In the pedestal Mariyamman idol was installed by the people belonging to the defendants'' community and they are performing the regular poojas to the said deity. Stone pillars and lamp post are also formed only by the defendants on the north of peedam. The plaintiffs have purposely suppressed the fact of existence of the Well in the plaint schedule property. The suit is bad for non-joinder of necessary parties like S. Ramalingapuram Nadar Uravinmurai. The classification of the plaint schedule property is ''punja land''. It is not a natham porambok. The plaint schedule property does not belong to the people belonging to the Pillaimar, Maravar, Adi Dravidar, Nayakar, Konar, Chettiar, Asari communities of S. Ramalingapuram and Sivagamipuram village as stated by the plaintiffs in the plaint. The suit as framed is not maintainable. The representatives of the plaintiff have not obtained any permission from the above said people belonging to the seven castes. The first plaintiff belongs to Pillamar community and the plaintiffs 2 & 3 belong to Adi Dravidar Community. The plaintiffs 1 to 3 are not competent to represent other communities like Maravar, Nayakar, Konar, Chettiar and Asari. The allegations that the defendants have no property near the plaint schedule property and that they are residing 400 yards away from the plaint schedule property at S. Ramalingapuram Village are not true. The plaintiffs are not administering the temple situate in the plaint schedule property. Only to grab at the plaint schedule property from the defendants this vexatious suit has been filed by the plaintiff. The plaintiffs were never in possession and enjoyment of the plaint schedule property. The plaintiffs have not conducted any festival in the plaint schedule property. On 20.11.1996 the people belonging to Nadar Uravinmurai of S. Ramalingapuram have decided to construct a wedding hail and an office room in the suit property and accordingly, foundation was dug in the suit property on 20.11.1996 to an extent of 88 feet X 7 feet on the north and 19 feet X 7 feet on the south and a reception hall was also constructed with a measurement of 10 ft x 10 ft x 6 ft. At the time of the said construction the plaintiffs have not made any objection to the defendants. With bad motive, the plaintiffs have filed this suit only to cause inconvenience and loss to the plaintiffs. The averment in the plaintiff that the defendants have made an attempt to construct a compound Wall on 10.12.1996 and that the compound wall was constructed in spite of the plaintiffs'' objection to a length of 100 ft with the height of 2 feet are all false. The plaintiffs are having men and money power. Only to harass the defendants, the plaintiffs have filed this vexatious suit. The plaintiffs have no cause of action to file this suit. The plaint was not valued for proper Court fee and jurisdiction. The suit is liable to be dismissed.
3. The 5th defendant in his written statement would contend that the suit is not maintainable. The representatives of the plaintiff are not residing in S. Ramalingapuram or Sivakamipuram village. The alleged representatives of the plaintiff community have no locus-standi to file the suit as the representatives of 7 community people. The plaint schedule property originally belongs to one Arumugampillai, who was enjoying the property by creating mortgage for the same in favour of the third parties. At that time survey number for the plaint schedule property was 23-C-2. Later Old Survey for the plaint schedule property was changed into New Survey No. 602/2. One Palania Pillai purchased the suit property from Arumugampillai. Later the said Palania Pillai executed a sale deed dated 10.1.1921 in respect of the plaint schedule property in favour of the Nadar Community of Ramalingapuram. From the date of the said sale deed, the said community people are in possession and enjoyment of the plaint schedule property without any interference from any quarters. In the said sale deed dated 10.1.1921, Nadar community people were represented through their representative Subha Nadar, who was looking after the plaint schedule property on behalf of the Nadar Community people of Ramalingapuram. After the death of Subha Nadar, Uravinmurai was formed by the people belonging to the Nadar community of Ramalingapuram for the welfare and upliftment of the people belonging to the said community, who were also looking after the plaint schedule property. After the death of Subha Nadar his family members viz., Thangavel Nadar, Karuppa Nadar, Soorapa Rathinam were elected as the President of the said Uravinmurai and the plaint schedule property was also under their management. The property was purchased as a vacant site in the year 1921. The Well was dug in the plaint schedule property in or about 1925. Mariyamman Peedam was also constructed in a portion of the plaint schedule property. During the month of Panguni, the people belong to Nadar Community of Ramalingapuram used to assemble in the plant schedule property for tonsuring and also to take water from the Well, which was treated as holy water (Manjal Paul) and the same was used to be taken to the Mariyamman Temple for various purposes. The other cultural programmes like Karagattam were also being conducted during the festival. Those artists who were engaged by this defendant Uravinmurai used to reside in the plaint schedule property temporarily. From the date of purchase i.e., on 10.1.1921 the defendants are in possession and enjoyment of the plaint schedule property. Patta for the suit property stands in the name of this defendant and this defendant has been paying kist for the suit property. The allegation that the plaintiffs used to offer special poojas particularly in the month of ''Vaigasi'' and ''Ipasi'' is not true. The extent of the property has not been correctly furnished in the plaint. This defendant never made any attempt to trespass into the suit property. But the defendants are in possession and enjoyment of the suit property from the date of the above mentioned sale in favour of them. Even in the peace meeting held at Rajapalayam on 24.12.1996, 26.12.1996 and 30.12.1996, the plaintiffs were not in a position to produce any material to show that they have got right and title over the plaint schedule property. There is no cause of action to file this suit. Hence, the suit is liable to be dismissed.
4. The plaintiff has filed a rejoinder denying the averements in the written statements.
5. On the above pleadings the learned trial Judge has framed 6 issues for trial. On the side of the plaintiffs, P.W. 1 to P.W. 9 were examined and Ex. A.1 to Ex. A.23 were marked. On the side of the defendants, D.W.1 was examined and Ex. B.1 to Ex. B.9 were marked. An Advocate Commissioner was appointed by trial Court, who had visited the plaint schedule property and filed his report Ex. C.1 and plan Ex. C.2. After going through the evidence froth oral and documentary, the learned trial Judge had come to the conclusion that the plaintiffs have failed to establish their right, title and possession in respect of the plaint schedule property, had dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiffs have preferred A.S. No. 5 of 1999 before the learned Principal District Judge, Srivilliputtur. The learned first appellate Judge after giving due deliberations to the submissions made by the Learned Counsel on both sides and after scanning the evidence let in before the trial Court, finding no reason to interfere with the findings of the learned trial Judge, has dismissed the appeal, thereby confirming the decree and judgment of the learned trial Judge in O.S. No. 734 of 1996 on the file of the Court of Additional District Munsif, Srivilliputtur, against which the present second appeal has been preferred by the 1st plaintiff.
6. The following substantial question of law is involved in this Second Appeal:-
Whether the lower appellate Court failed to frame necessary points for consideration and that has resulted in miscarriage of justice?
7. Substantial Question of Law:-The learned first appellate Judge had framed two points for determination in the first appeal. Even though the points for determination by the first appellate Judge is general in nature, the learned first appellate Judge on the basis of the documentary evidence had gone deep into the matter and come to a conclusion that the defendants have produced Ex. B.3 to Ex. B.5 and Ex. B.7 to Ex. B.13, to show that the plaint schedule property belongs to the defendants and the plaintiffs have failed to establish that they are having right, title and possession in respect of the plaint schedule property, had dismissed the appeal thereby confirming the decree and Judgment of the learned trial Judge. So under such circumstances, the second appeal cannot be allowed on the basis of the substantial question of law as framed in this second appeal.
7(a) As regards the concurrent findings the interference by this Court in Second Appeals is depricated by the Honourable Apex Court in The Court does not sit in appeal over the right or wrong of the testator''s decision. The Court''s role is limited to examine whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. .............. Section 100 of the Code of Civil Procedure, 1908 (for short CPC) corresponds to Section 584 of the old CPC of 1882. Section 100 (prior to 1976 amendment) reads as under: 100. Second Appeals_ (1) Save where otherwise expressly ''provided in the body of this Court 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 a High Court, on any of the following grounds, namely; (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed ex parte. A reference of series of cases decided by the Privy Council and this Court would reveal true import, scope and ambit of Section 100 C.P.C. Cases decided prior to 1976 amendment both by the Privy Council and the Supreme Court dealing with the scope of Section 100 C.P.C. The Privy Council, in Luchman v. Puna [(1889) 16 Calcutta 753 (P.C.)], observed that a second appeal can He only on one or the other grounds specified in the present section. The Privy Council, in another case Pratap Chunder v. Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC) and many others. The Court observed : It has now been conclusively settled that the third court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second court, if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final. In the case of Ram Gopal v. Shakshaton [(1893) ILR 20 Calcutta 93 (P.C.)], the Court emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below. The same principle has been reiterated in Rudra Prasad v. Baij Nath [(1893) ILR 15 Allahabad 367]. The Court observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily. Similarly, before amendment in 1976, this Court also had an occasion to examine the scope of Section 100 C.P.C.. In Deity Pattabhiramaswamy v. S. Hanymayya and others [AIR 1959 SC 57], the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. this Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court''s jurisdiction u/s 100, Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction u/s 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate Court based upon an appreciation of the relevant evidence. ................ Cases decided after 1976 amendment In In this Court had occasion to determine the same issue in A mere look at the said provision shows that the High Court can exercise its jurisdiction u/s 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. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Further it is settled proposition of law that unless it is shown before this Court that the judgment of the Courts below is perverse in nature and the Courts below have failed to consider the materials placed before them and rendered an erroneous judgment, this Court sitting in Second Appeal cannot interfere with the findings of the Court below. The Learned Counsel for the appellant repeatedly contended that the defendants have no right, title or possession in respect of the suit property and the construction put up by them are all unauthorised. Having come to the Court for declaration of title, it is the bounden duty of the plaintiffs to prove, through valid documents to show that the plaintiffs are having right, title and possession in respect of the suit property. The Learned Counsel basing his reliance on entries in Ex. A.5 - settlement register would contend that the Courts below have failed to take note of Ex. A.5. P.W. 9, Record Clerk of the Tahsildar, Taluk Office Rajapalayam, has produced Ex. A.5. But in the cross-examination he would admit that he does not know how the name of Shanmuga Lakshmiammal in the A-register for S. No. 606/2 Old S. No. 23-C-2 was changed in the name of Arulmigu Kaliyamman Koil. The Learned Counsel would challenge Ex. B.3, the order of the Tahsildar, Rajapalayam, transferring the patta No. 265 from the plaintiffs in favour of the defendants on the ground that no notice was given to the plaintiffs. But Ex. B.3 cannot be challenged in this suit. The plaintiffs are entitled to challenge the order passed under Ex. B.3 before the appropriate forum. Since there is absolutely no material placed before this Court to show that the findings of the Courts below is perverse and that the Courts below have failed to take note of the materials placed before the trial Court and an error of law has been committed by the Courts below, this Court while exercising its power u/s 100 CPC, cannot entertain this appeal. Substantial question of law is answered accordingly.
