(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree, dated 19.07.2024 made in A.S.No.04 of 2019 on the file of the Additional Sub-Court, Kumbakonam, reversing the judgment and decree, dated 31.07.2017 made in O.S.No.358 of 2009 on the file of the I Additional District Munsif Court, Kumbakonam.)

1.The second appeal is directed against the judgment and decree made in A.S.No.4 of 2019, dated 19.07.2024 on the file of the Additional Sub Court, Kumbakonam, reversing the judgment and decree passed in O.S.No.358 of 2009, dated 31.07.2017, on the file of the Additional District Munsif Court, Kumbakonam.

2. The appellants are the plaintiffs. They have filed a suit in O.S.No.358 of 2009, on the file of the Additional District Munsif Court, Kumbakonam, claiming permanent injunction restraining the defendants and their men from in anyway interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.

3. The respondents/defendants filed their written submissions and contested the suit. The learned District Munsif, after framing necessary issues and after full trial, passed a judgment and decree, dated 31.07.2017, granting the relief of permanent injunction as sought for with costs. Aggrieved by the said judgment and decree, the defendants preferred an appeal in A.S.No.4 of 2019 and the learned Additional Subordinate Judge, Kumbakonam, upon considering the materials available on record and on hearing the arguments of both the sides, passed the impugned judgment and decree, dated 19.07.2024, allowing the appeal and thereby setting aside the judgment and decree of the trial Court and consequently, dismissed the suit with costs. Challenging the impugned judgment and decree, the defendants have filed the present second appeal.

4. 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.”

5. 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 well-recognised 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.”

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

7. An extent of 7 cents of Plot and thatched house constructed therein bearing Door No.63 (Old Door No.1/99A) along with electric service connection in S.No.12/5 of Srinivasanallur Village, Kumbakonam Taluk, Thanjavur District, is the suit property.

8. The case of the plaintiff is that the suit property was originally owned by one Sarangapani Iyangar; that the plaintiffs' father Kannaiya Sethurayar occupied the suit property with the knowledge of real owner Sarangapani Iyangar and he was in possession and enjoyment of the suit property adversely without any interruption for 16 years; that the plaintiffs' father Kannaiya Sethurayar died in the year 1995 and after his demise, the plaintiffs have been continuously in exclusive possession and enjoyment of the suit property till now; that the defendants are residing on the western side of the suit property; that the defendants, who are having political influence attempted to encroach the suit property, but the same was thwarted and that therefore, the plaintiffs were constrained to file the suit for permanent injunction.

9. The defence of the defendants is that an extent of 18 cents including the suit property along with tiled house bearing Door No.1/99 and a cattle shed along with trees in R.S.No.12/5 of Srinivasanallur Village, originally owned by one K.Sarangapani Iyangar; that the first defendant was a Karvari for the lands belonging to the said Sarangapani Iyangar over 30 years; that the said Sarangapani Iyangar sold 18 cents of land along with tiled pannai house in R.S.No.12/5 to the first defendant on 17.07.1973 for valuable consideration of Rs.3,000/- and executed an unregistered and unstamped sale deed; that the said Sarangapani Iyangar's legal heirs Srinivasan and Saroja filed a suit in O.S.No.205 of 2000 on the file of the District Munsif Court, Kumbakonam and the same was dismissed; that the first defendant has been paying property tax and kist and that the defendants are in lawful possession and enjoyment of the suit property.

10. It is the further case of the defendants that the plaintiffs' father Kannaiya Sethurayar was a native of Alangudi village and he came over to the village about 10 years back prior to the former suit in O.S.No.303 of 1994 on the file of the District Munsif Court, Kumbakonam and approached the first defendant and requested for any coolie work and the first defendant directed the said Kannaiya Sethurayar to work in the said lands and the Kannaiya Sethurayar also requested to give an accommodation and accordingly, the Kannaiya Sethurayar along with his family was permitted to reside in dilapidated tiled cattle shed available in the suit property temporarily; that the plaintiffs' father obtained certificate fraudulently from the Village Administrative Officer and filed a suit in O.S.No.303 of 1994, alleging that he was enjoying 18 cents of the property as per the permission given by the Sarangapani Iyangar; that the said Kannaiya Sethurayar died during the pendency of the said suit and hence, the plaintiffs got themselves impleaded; that the plaintiffs subsequently allowed the said suit to be dismissed for default; that neither the plaintiffs' father nor the plaintiffs have any right, title or possession over the suit property; that though the plaintiffs' father obtained house tax receipts fraudulently, the same was cancelled by the competent authority at the instance of the first defendant; that the permissive possession will never become adverse and the plaintiffs deliberately suppressed the dismissal of the earlier suit in O.S.No.303 of 1994 and that therefore, the present suit is liable to be dismissed.

11. At the outset, it is pertinent to note that the plaintiffs as well as the defendants have admitted that the suit property and adjoining properties were originally owned by Sarangapani Iyangar.

12. In the present case, the plaintiffs have taken a stand that their father Kanniaya Sethurayar occupied the suit property with the knowledge of the real owner Sarangapani Iyangar and he was in possession and enjoyment of the suit property adversely without any interruption for 16 years till his death 1995.

13. Considering the above pleadings, it can easily be inferred that the plaintiffs have claimed ownership over the suit property by adverse possession. But according to the defendants, the first defendant worked as Karvari for the lands belonging to Sarangapani Iyangar over 30 years; that the said Sarangapani Iyangar sold 18 cents of land in R.S.No.12/5 to the first defendant on 17.07.1973 for valuable consideration and executed an unregistered sale deed and that the defendants have been in possession and enjoyment of the said property including the suit property.

14. To put it briefly, the defendants have claimed ownership through an unregistered and unstamped sale deed dated 17.07.1973, marked as Ex.D.3. Apart from relying on the said sale deed, the defendants have also claimed that they are in possession and enjoyment of the suit property. At this juncture, this Court is at a loss to understand as to how such an unstamped and unregistered sale deed came to be admitted in evidence. Even in the absence of any objection from the other side, when the trial Court found that the document produced was an unstamped instrument which also required compulsory registration, the Court ought to have directed the party producing the document to pay the deficit stamp duty together with the requisite penalty before admitting the document in evidence.

15. Admittedly, the document relied on by the defendants is an unregistered sale deed pertaining to immovable property valued at more than Rs.100/- and is also insufficiently stamped. In terms of Section 17 read with Section 49 of the Registration Act, 1908, such an unregistered instrument cannot confer any right, title or interest, nor can it affect the immovable property comprised therein or be received as evidence of any transaction affecting such property.

16. As per Section 49 of the Registration Act, 1908, an unregistered document which is required to be registered may be received in evidence only for a collateral purpose, provided the same is otherwise admissible in evidence. In the case on hand, the document is also insufficiently stamped and, therefore, in view of Sections 33 and 35 of the Indian Stamp Act, the same is inadmissible in evidence for any purpose unless the deficit stamp duty together with the prescribed penalty is paid. Even after payment of the required stamp duty and penalty, the document, being unregistered, cannot be relied upon to establish title, but may at best be received in evidence only for a collateral purpose permissible under law.

17. As already pointed out, since the document is insufficiently stamped and unregistered, and in view of the fact that the deficit stamp duty and penalty have not been paid, the same cannot be considered in evidence and is liable to be eschewed from consideration. As already pointed out, both the plaintiffs and the defendants claim that they are in possession of the suit property.

18. It is settled law that the standard of proof required for establishing a fact in civil proceedings is that of preponderance of probabilities and not proof beyond reasonable doubt. A fact can be said to be proved in civil proceedings when the Court, upon weighing the entire evidence on record, finds that the existence of such fact is more probable than its non-existence. The Court is required to determine the rights of the parties by ascertaining which of the rival versions appears more probable on the basis of the materials available on record.

19. It is not in dispute that the plaintiffs' father Kannaiya Sethurayar filed a suit in O.S.No. 303 of 1994 on the file of the District Munsif Court, Valangaiman against the first defendant alleging that he had been in possession and enjoyment of the suit property on the basis of permission granted by Sarangapani Iyangar.

20. To put it in other words, the plaintiffs’ father, in the earlier suit, claimed that he was in permissive possession of the suit property. As already pointed out, since the plaintiffs did not press the said suit, the same came to be dismissed as not pressed. In the present suit, however, the plaintiffs have set up a plea of adverse possession, alleging that their father had occupied the suit property with the knowledge of Sarangapani Iyengar and that he had been in possession and enjoyment of the suit property without any interruption.

21. Considering the above, it can be easily inferred that the plaintiffs, through their father, are claiming adverse possession against Sarangapani Iyengar and his legal heirs. However, admittedly, the legal heirs of Sarangapani Iyengar have not been impleaded as parties in the present suit.

22. As rightly observed by the First Appellate Court, the plaintiffs’ father and the plaintiffs have taken inconsistent pleas by claiming both permissive possession and adverse possession, which are mutually contradictory and destructive, and therefore, such peas cannot be entertained.

23. The defendants have produced the pattas in respect of the property including the suit property under Ex.D.5 and Ex.D.6 patta pass books under Ex.D.7 and Ex.D.8; house tax receipts for Door No.1/99 under Ex.D.9 to Ex.D. 15; electricity consumption cards under Ex.D.16 to Ex.D.18; Receipt and notice issued by the Electricity Board under Ex.D.20 and Ex.D.21; kist receipts under Ex.D.22 to Ex.D.42 and Family Card under Ex.D.43, all stand in the name of the first defendant.

24. The learned trial Judge, upon considering the above evidence, has come to a specific finding that the entire extent of 18 cents in S.No.12/5 including the suit property stand in the name of the first defendant. The plaintiffs have only produced house tax receipts under Ex.P.1 to Ex.P.8 and the receipts issued by the Co-operative Society under Ex.P.9 and Ex.P.10 and receipt issued by the electricity board under Ex.P.11. Apart from the said documents, they have produced only the copies of caveat petitions.

25. Even according to the plaintiffs, their father came to the village, where the suit property is situated, in the year 1984 and according to them, he occupied the property with the knowledge of Sarangapani Iyangar, but the fact remains that Sarangapani Iyangar was not alive in 1984. According to the defendants, the first defendant came into possession in 1979 and the learned appellate Judge has rightly observed that the case of the first defendant is probable.

26. Considering the entire evidence available on record, the learned appellate Judge has come to a decision that the plaintiffs has not proved their titled by adverse possession nor permissive possession and that therefore, they are not entitled to get the relief of permanent injunction.

27. The appellants have not shown that the material evidence available in the case had been ignored by the first appellate Court or that there was no evidence at all. The appellants have also not shown any wrong inference had been drawn by the first appellate Court from the proved facts by applying the law erroneously. The appellants have also not canvassed any stand that the First Appellant Court has wrongly placed the burden of proof.

28. It is pertinent to note that the first appellate Court, on appreciating and re-appreciating the evidence available on record, has come to a definite decision that the plaintiffs are not entitled to the relief of permanent injunction, reversing the decision of the trial Court.

29. Considering the judgment of the First Appellate Court, this Court is of the clear view that no question of law much less Substantial Question of Law is made out. It is not open to this Court to sit in appeal over the factual findings arrived at by the first appellate Court. Hence, this Court concludes that since no substantial question of law is made out in the second appeal, the same is liable to be dismissed.

30. In the result, the Second Appeal is dismissed, by confirming the judgment and decree, dated 19.07.2024 made in A.S.No.04 of 2019 on the file of the Additional Sub-Court, Kumbakonam, reversing the judgment and decree, dated 31.07.2017 made in O.S.No.358 of 2009 on the file of the I Additional District Munsif Court, Kumbakonam. Consequently, connected Miscellaneous Petition is closed. Parties are directed to bear their own costs.