(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the decree and judgment dated 17.06.2022 passed in A.S.No.32 of 2017 by the learned Additional Sub Judge, Dindigul confirming the decree and judgment dated 15.02.2017 passed in O.S.No. 189 of 2010 on the file of the learned Principal District Munsif, Dindigul.)

1. The Second Appeal is directed against the judgment and decree made in A.S.No.32 of 2017 dated 17.06.2022 on the file of the Additional Subordinate Court, Dindigul, confirming the judgment and decree passed in O.S.No.189 of 2010 dated 15.02.2017 on the file of the Principal District Munsif Court, Dindigul.

2. The appellants are the plaintiffs. They filed the above suit claiming permanent injunction restraining the respondents / defendants and their men from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. The defendants filed their written statement and contested the suit.

3. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court.

4. The learned Principal District Munsif, Dindigul, after framing necessary issues and after full trial, passed a judgment and decree dated 15.02.2017 dismissing the suit. Aggrieved by the dismissal of the suit, the plaintiffs preferred an appeal in A.S.No.32 of 2017 and the learned Additional Subordinate Judge, Dindigul, upon considering the materials available on record and on hearing the arguments of both the sides, passed the impugned judgment and decree dated 17.06.2022 dismissing the appeal and thereby confirming the judgment and decree of the trial Court. Challenging the dismissal of the first appeal, the plaintiffs have preferred the present Second Appeal.

5. At the outset, it is necessary to refer the mandate of Hon'ble Supreme Court for High Courts in deciding the second appeal under Section 100 of the Civil Procedure Code, given in the case of Gurnam Singh (dead) by LRs., and others Vs. Lehna Singh (dead) by LRs., reported in AIR 2019 SC 1441, that the jurisdiction of the High Court in an appeal under Section 100 of the Code of Civil Procedure is strictly confined to the case involving substantial question of law and the relevant passage is extracted hereunder:

               “18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”

6. The Hon'ble Supreme Court in the case of Chandrabhan Vs. Saraswati and others reported in 2022 SCC OnLine SC 1273 has specifically held that right of appeal is not automatic and right of appeal is conferred by statute and when statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to the High Court to sit in appeal over the factual findings arrived at by the First Appellate Court and the Hon'ble Supreme Court summarized the principles relating to Section 100 C.P.C., which are as follows;

                “(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 which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

               (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the wellrecognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

7. Bearing the settled legal position in mind, let us proceed with the present case.

8. The case of the plaintiffs is that there are 2 tamarind trees in the land situated in Survey No.279/1 of Valaiyapatti of Keezhakkottai Village, Aathur Taluk, that the plaintiffs' father Ayyakkannu Ambalam had initially obtained 2C patta in No.39 from the Government and had been enjoying the tamarind yields from the said tamarind trees since 1963, that along with the said 2 tamarind trees the base land where the trees grown up have also been in their possession even during the life time of their father and even after the death of their father Ayyakkannu Ambalam, the plaintiffs being his legal heirs have been enjoying the base land and also the tamarind trees, that since their father had disputes with one Pazhanichamy Ambalam and two others regarding the possession of the tamarind trees, their father filed a suit in O.S.No.76 of 1999 for permanent injunction and the said suit was dismissed by the II Additional District Munsif Court, Dindigul, that the plaintiffs' father preferred an appeal in A.S.No.16 of 2001 and the same came to be allowed by the Additional Sub Court, Dindigul and permanent injunction was granted, that the defendants therein had not preferred any appeal and hence, the judgment and decree passed in A.S.No.16 of 2001 had attained finality, that while the plaintiffs are in possession and enjoyment of the suit property, the present defendants attempted to trespass into the property forcibly on 03.03.2010 with deadly weapons and attempted to put up a shed on the property where the tamarind trees are located but their attempt was thwarted and that therefore, the plaintiffs were constrained to file the above suit for permanent injunction.

9. The defence of the defendants is that their predecessors had encroached upon the land situated 20 feet to the north of the suit tamarind trees and had been in possession and enjoyment of the same for nearly 100 years by putting up a kalam, dung pit and cattle shed therein. It is further contended that the judgment and decree passed in A.S.No.16 are not binding on the defendants and that they are therefore not bound by the same. According to the defendants, the plaintiffs’ relatives, namely, Gurusamy, Rasu and others, had attempted to put manure in the land in their possession a few months prior to the filing of the suit, but such attempt was thwarted. Thereafter, with false allegations, the present suit has been filed. It is also contended that the plaintiffs cannot claim any right or title over the land adjoining the tamarind trees and that the alleged cause of action is false and untenable and therefore, the suit is liable to be dismissed.

10. At the outset, it is necessary to refer the property, for which, permanent injunction is claimed.

                                                  

 

11. In view of the above, it is clear that the plaintiffs have sought the relief of permanent injunction not only in respect of the tamarind trees but also in respect of the land on which the said tamarind trees are situated.

12. As rightly observed by the learned trial Judge, the plaintiffs' father had filed a suit in O.S.No.76 of 1999 only in respect of the 2 tamarind trees and the usufructs therefrom and the Appellate Court in A.S.No.16 of 2001 granted permanent injunction in favour of the plaintiffs' father only in respect of the 2 tamarind trees. However, in the present suit, the plaintiffs have sought permanent injunction in respect of the land on which the tamarind trees are situated as well.

13. It is not in dispute that the tamarind trees are located in the land belonging to the Government. Even according to the plaintiffs, their  father was issued with 2C patta so as to enable him to enjoy the usufructs of the 2 tamarind trees. Admittedly, the plaintiffs have not produced any iota of evidence to show that the land on which the tamarind trees are situated was in possession and enjoyment of the plaintiffs' father and after him, with the plaintiffs. It is also not their case that the Government has recognised their encroachment and possession over the disputed land.

14. No doubt, in the present suit, an Advocate Commissioner was appointed who inspected the property and filed a report under Ex.C1 and Ex.C2. The defendants, by relying on Ex.C1 and Ex.C2 Commissioner's report and plan, claimed that the land in dispute was in their possession, but the learned trial Judge, by relying on the settled legal position that no Commissioner can be appointed to show the possession of a party and possession cannot be decided on the basis of the Commissioner's report, rejected the defence of the defendants.

15. Since the plaintiffs, who laid the suit claiming permanent injunction, have miserably failed to prove that the land on which the tamarind trees are situated was in their possession, the learned trial Judge  has rightly dismissed their suit.

16. No doubt, Village Administrative Officer examined as D.W.3 would say that after the death of the plaintiffs' father, the plaintiffs were enjoying the usufructs of 2 tamarind trees, but the learned first appellate Judge, by observing that the plaintiffs' father was issued with 2C patta only for four years from 2000 to 2003 and thereafter, no 2C patta was issued in favour of the plaintiffs' father or the plaintiffs and that therefore, the plaintiffs are not even entitled to get the usufructs of 2 tamarind trees, dismissed their appeal by confirming the dismissal of the suit.

17. Considering the evidence available on record, the Courts below have rightly come to a conclusion that the plaintiffs are not entitled to get the relief of permanent injunction and as such, the same cannot be faulted.

18. Considering the judgments of the Courts below, no question of law much less Substantial Question of Law is made out. As per the dictum laid down by the Hon'ble Supreme Court in Chandrabhan's case referred supra, it is not open to this Court to sit in appeal over the factual findings arrived at by the first appellate Court, confirming the findings of the trial Court. Consequently, this Court concludes that since no substantial question of law is made out in the second appeal, the same is liable to be dismissed.

19. In the result, the Second Appeal is dismissed, confirming the judgment of the appellate Court made in A.S.No.32 of 2017, dated 17.06.2022 on the file of the Additional Subordinate Court, Dindigul, confirming the judgment and decree made in O.S.No.189 of 2010 dated 15.02.2017 on the file of the Principal District Munsif Court, Dindigul. Consequently, connected Miscellaneous Petition is closed. No costs.