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CASE NO.: Appeal (civil)  2206 of 2007

PETITIONER: P. Chandrasekharan &  Others

RESPONDENT: S. Kanakarajan &  Others

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  2206          OF 2007 [Arising out of SLP(C) No.8589 of 2003]   

S.B. SINHA,  J :

       1.      Leave granted.

       2.      Plaintiffs in the suit are Appellants before us.  They filed a suit  which was marked as OS No.1132 of 1974;  in all 10 reliefs were prayed for.   We are concerned herein with reliefs no.8 and 9.  Relief no.8 was in respect  of a land admeasuring 15-1/2 ft. x 21 ft. whereas relief no.9 was in respect of  a land admeasuring 40 ft. x 20 ft.  The said lands were allegedly purchased  by the predecessor in interest of the appellants by a deed of sale dated  16.9.1935. In the said deed of sale the properties in question  have been  described as under :

"In Tiruchirappalli District, Srirangam Sub District,  Tiruchirappalli Taluk, Thimmarayasamudhram Village,  Srirangam Municipal Second Ward, Ayan Punja, in T.S.  No.1960/1, out of 24 cents the 8 cents on the western  side, Ayan Punja in T.S. No.1960/4 out of 6 cents, 3  cents on western side, within this a thatched house vacant  site including the brick wall, door on the east to west side  etc. along with common pathway rights in the above T.S.  Nos. belongs to the property for 8 cents set out about four  boundaries are as follows:

NORTH of Velayutham Pillai land; SOUTH of Rajarethinam Pillai land; WEST of Pitchaikara Pillai land; and EAST of Municipal lane."

       3.      This suit was decreed only in relation to reliefs no.6, 8 and 9.   An appeal was preferred thereagainst by the appellants.  A cross-objection  was also preferred by the respondents. Both the appeal and the cross  objection were dismissed by the First Appellate Court.  A Second Appeal  was preferred their against by the appellants in the High Court of Madras  which was marked as SA No.1674 of 1982.  Some of the respondents also  preferred cross objections. The High Court by reason of a judgment and  decree dated 16.9.998 while dismissing the appeal preferred by the  appellants herein allowed the cross-objections of the respondents in respect  of the reliefs no.8 and 9.  In a special leave petition filed by the appellants  before this Court it was argued that even the provisions of sub-section (4) of

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Section 100 of CPC would be attracted to in relation to the cross objections.   The said contention was accepted by this Court and the matter was remitted  to the High Court for framing an appropriate substantial questions of law.   The  questions of law formulated by the High Court are as under :

"(1) Whether the lower appellate Court was right in law  in ignoring the documentary evidence relating to  description of the suit item Nos.8 and 9 and misreading  the evidence of D.W.2 to come to the conclusion that the  appellants are entitled to the reliefs, the subject matter of  Cross Objection?

(2)     Whether the lower appellate Court’s conclusions  are initiated by non-consideration of the Evidence on  record more particularly the description of property in  Exs.A1, A2, A3, A17, A18 and A21?"

       4.      By reason of the impugned judgment the said Cross Objection  of the respondents herein was allowed.

       5.      Before adverting to the contentions raised by the learned  counsel for the parties herein  it may be noticed that in the earlier round of  litigation before this Court it was pointed out that one of the respondents  therein M. Marimuthu Ammal had expired way back on 1.12.1993 and thus  the Second Appeal itself had abated; the cross objection also did not survive.   However, the legal representatives of the said Shri Ammal were brought on  record before this Court who are parties before us.   

       6.      Mr. S. Balakrishnan, learned Senior counsel appearing on  behalf of the appellants, inter alia, would submit that the purported questions  formulated by the High Court do not constitute  ’substantial question of  law’.  Our attention in this regard has been drawn to the judgments of the  courts’ below to contend that all the relevant documents and in particular,  Exs.A1, A2, A3, A17, A18 and A21 received elaborate consideration by  them and thus only because there existed a dispute in regard to the  description of the property in a document, the same by itself would not give  rise to a substantial question of law.  Strong reliance in this behalf has been  placed on Hero Vinoth v. Seshammal [(2006) 5 SCC 545].  It was also  submitted that in view of the fact that during pendency of the Second Appeal  one of the cross objectors died, the cross objection having abated, and  no  application for impleadment of legal representatives of the state of cross  objectors having been filed within the period stipulated under Order 22 Rule  4 of the Code of Civil Procedure, the impugned judgment cannot be  sustained.  

       7.      Mr. V. Prabhakar, learned counsel appearing on behalf of the  respondents, on the other hand, would draw our attention to the description  of the property as contained in Ex.A1 and the Survey Settlement Plan \026 A7  whereupon reliance has been placed by the appellants themselves, and  judgments of the courts below to contend that the boundaries stated in the  deed do not tally with the description of properties with each other, as would  appear from the brought on record, and in that view of the matter no case has  been made out for interference with the impugned judgment by this Court.   Mr. Prabhakar urged that the plaintiffs are not only required to prove their  title in respect of the property in suit but also identification thereof so that  the decree passed, if any,  may be executed and in that view of the matter the  questions of law have rightly been formulated by the High Court.   Misinterpretation of a document, it was submitted, would give rise to a  question of law.  In reply to the second contention of Mr. Balakrishnan,  it  was submitted that apart from the fact that such questions have not been  raised either before the High Court or in the Memo of Appeal, and as  admittedly the cross-objectors are members of the same family and some of  the heirs and legal representatives of the deceased cross objector being  already party to the appeal, the estate of the deceased  has substantially been

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represented and in that view of the matter the cross objection did not abate.   

       8.      This Court had issued a limited notice i.e. only in respect of  item no.9 of the reliefs of the property.  The special leave petition, thus, in  respect of item no.8 stood dismissed in terms of the order dated 8.5.2003.   The said order has become final.   

       9.      Appellants claim title by reason of the said deed of sale dated  16.9.1935.

       10.     They, as noticed hereinbefore, claimed a large number of  reliefs.  The reliefs included their easementary right in respect of any land  dividing the suit properties and those claimed by the respondents herein.   The plaintiff, before his suit is decreed, must establish  the cause of action in  respect of the property in question wherefor the relief for recovery of  possession has been claimed.  In case the suit is decreed, the Executing  Court must be able to deliver possession thereof and thus there cannot be  any doubt whatsoever that the property in suit must be adequately  identifiable. When such a relief is claimed the plaintiff must show what he  had purchased and how the court, in the event, a dispute arises, would  determine the identity of the property.   

       11.     A bare comparison of the deed of sale on the basis whereof  appellants claim their right, title and interest, namely, the deed of sale dated  16.9.1935 with the rough plan (Ext.A-17) purported to have been drawn up  on the basis of the Service Settlement Plan, therefore, must lead to  proper  identification of the suit property.  It may be as was contended by Mr.  Balakrishnan that between the period 1935 and the date of institution of the  suit surrounding properties have changed many hands or the original owners  might have died; but when the plaintiffs themselves relied upon a sketch to  establish identity of the properties in suit  vis-‘-vis the existence of lanes and  the constructed platform etc., it was for them to show that the description of  the property tally with the one stated in the deed of sale.  What was to be in  the South of the property belonging to Pitchaikara Pillai and others in the  deed of sale have been shown to be the West of the said property.  It is  difficult to come to a conclusion one way or the other as to whether the lane  which is situated on the East of item No.9 of the property and the municipal  lane which is situated at a distance on the eastern side and intervened by a  piece of land belonging to Palanisamy Pillai can be taken to the identifying  points.  We have been taken through other documents also including Ext.A-3  wherein the description of the property has been stated thus :   

"In Tiruchirappalli District, Srirangam Sub District,  Tiruchirappalli Taluk, Thimmarayasamudhram Village,  Veereshwaram, East Street, Srirangam Municipal,  Second Ward in T.S. No.1960/2 & 4 West of common  lane 7ft. wide pathway.

NORTH of property of Sambasivam Pillai vacant side in  T.S. No.1960/1;

EAST of Municipal North to South Lane in above T.S.  No.1960/1 and    SOUTH of the vacant site of  Palanisamy Pillai and Kunjammal.

WEST of Common lane of 7ft. wide pathway & in  1960/1 within this fourt boundaries North to South 4-1/4  std. ft. East to West 102 std. ft.  The property is  comprised in Srirangam Municipal limits and vacant  space as third item manai is situate in T.S. No.1960/1 of  4 ft. lower level."

       12.     The said deed was executed in the year 1966.  The description  of the property was stated to be on the East of Municipal North to South  Lane, was shown in the rough sketch as existing in the South of the disputed

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property.                  13.     There cannot be any doubt whatsoever that a substantial  question of law is different from a question of law.  Interpretation of a  document which goes to the root of the title of a party to the lis would  indisputably give rise to a question of law.   

       14.     In Rev. Fr. M.S. Poulose v. Varghese & Ors. [1995 Supp. (2)  SCC 294], interpretation of the recitals contained in a document was held to  be involving a substantial question of law.  What is prohibited for the High  Court while exercising this jurisdiction under Section 100 of CPC is to  interfere with a finding of fact.  This limited jurisdiction, inter alia, would  become exercisable when the findings are based on misreading of evidence  or so perverse that no reasonable person of ordinary prudence could take the  said view.   

       15.     This Court in Hero Vinoth (supra) opined that the following  question of law set out from para 4 gives rise to a substantial question of law  and would set aside the judgments of the courts below stating : "12.We shall first deal with the question relating to  jurisdiction of the High Court to interfere with the  concurrent findings of fact. Reference was made by  learned counsel for the appellant to Chandra Bhan v.  Pamma Bai and Sakhahari Parwatrao Karahale v.  Bhimashankar Parwatrao Karahale. So far as the first  decision is concerned, in view of the factual findings  recorded by the lower court and the first appellate court it  was held that interference with the concurrent findings of  fact is not justified. The question related to possession  and the two courts primarily considering factual position  had decided the question of possession. In that  background, this Court observed that jurisdiction under  Section 100 CPC should not have been exercised. So far  as the second decision is concerned, the position was  almost similar and it was held that findings contrary to  the concurrent findings of the lower courts and having no  basis either in pleadings, issues framed or in questions  actually adjudicated upon by any of the lower courts  cannot be sustained. That decision also does not help the  appellant in any manner as the factual scenario is totally  different in the present case."

       16.     This Court even went through the depositions of the witnesses  examined in the case for the purpose of upholding the judgment of the High  Court.           17.     The question recently came up for a consideration before this  Court; albeit in a case under Section 130(A) of the Customs Act, in  Commission of Customs (Preventive) v. Vijay Dasharath Patel [2007 (4)  SCALE 132], wherein it was held : "22. We are not oblivious of the fact that the High  Court’s jurisdiction in this behalf is limited. What would  be substantial question of law, however, would vary from  case to case. 23. Moreover, although, a finding of fact can be  interfered with when it is perverse, but, it is also trite that  where the courts below have ignored the weight of  preponderating circumstances and allowed the judgment  to be influenced by inconsequential matters, the High  Court would be justified in considering the matter and in  coming to its own independent conclusion. {See Madan  Lal v. Mst. Gopi and Anr.  [AIR 1980 SC 1754].} 24. The High Court shall also be entitled to opine that a  substantial question of law arises for its consideration  when material and relevant facts have been ignored and  legal principles have not been applied in appreciating the

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evidence. Arriving at a decision, upon taking into  consideration irrelevant factors, would also give rise to a  substantial question of law. It may, however, be different  that only on the same set of facts the higher court takes a  different view. {See Collector of Customs, Bombay v.  Swastic Woollens (P) Ltd. and Ors. (1988) Supp. SCC  796; and Metroark Ltd. v. Commissioner of Central  Excise, Calcutta (2004) 12 SCC 505}. 25. Even in a case where evidence is misread, the High  Court would have power to interfere. {See West Bengal  Electricity Regulatory Commission v. CESC Ltd.  (2002) 8 SCC 715; and also Commissioner of Customs,  Mumbai v. Bureau Veritas and Ors. (2005) 3 SCC  265}.

       18.     This Court in Hero Vinoth  (supra) held :-

"24. The principles relating to Section 100 CPC relevant  for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a  document is a question of fact. But the legal effect of the  terms of a document is a question of law. Construction of  a document involving the application of any principle of  law, is also a question of law. Therefore, when there is  misconstruction of a document or wrong application of a  principle of law in construing a document, it gives rise to  a question of law. (ii) The High Court should be satisfied that the case  involves a substantial question of law, and not a mere  question of law. A question of law having a material  bearing on the decision of the case (that is, a question,  answer to 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 High Court will not interfere  with the concurrent findings of 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."

       19.     When thus the courts below misread and misinterpreted a  document of title read with other documents and the plan for the  identification of the suit lands whereupon the plaintiffs themselves relied  upon, a substantial question of law arose for determination of the High Court  in between the parties to the suit.           20.     We, therefore, do not find any merit in the said contention of  Mr. Balakrishnan.           21.     Indisputably, an appeal would abate automatically unless the

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heirs and legal representatives of a deceased plaintiffs or defendants are   brought on record within the period specified in the Code of Civil Procedure.   Abatement of the appeal, however, can be set aside if  an appropriate  application is filed therefor.  The question, however, as to whether a suit or  an appeal has abated or not would depend upon the fact of each case.  Had  such a question been raised,  the respondents could have shown that their  cross-objection did not abate as the estate of the deceased cross objector was  substantially represented.           22.     In Mithailal Dalsangar Singh & Ors. v. Annabai Devram Kini  & Ors. [(2003) 10 SCC 691] whereupon Mr. Balakrishnan himself relied,  this Court held : "8. Inasmuch as the abatement results in denial of  hearing on the merits of the case, the provision of  abatement has to be construed strictly. On the other hand,  the prayer for setting aside an abatement and the  dismissal consequent upon an abatement, have to be  considered liberally. A simple prayer for bringing the  legal representatives on record without specifically  praying for setting aside of an abatement may in  substance be construed as a prayer for setting aside the  abatement. So also a prayer for setting aside abatement as  regards one of the plaintiffs can be construed as a prayer  for setting aside the abatement of the suit in its entirety.  Abatement of suit for failure to move an application for  bringing the legal representatives on record within the  prescribed period of limitation is automatic and a specific  order dismissing the suit as abated is not called for. Once  the suit has abated as a matter of law, though there may  not have been passed on record a specific order  dismissing the suit as abated, yet the legal representatives  proposing to be brought on record or any other applicant  proposing to bring the legal representatives of the  deceased party on record would seek the setting aside of  an abatement. A prayer for bringing the legal  representatives on record, if allowed, would have the  effect of setting aside the abatement as the relief of  setting aside abatement though not asked for in so many  words is in effect being actually asked for and is  necessarily implied. Too technical or pedantic an  approach in such cases is not called for. 9. The courts have to adopt a justice-oriented approach  dictated by the uppermost consideration that ordinarily a  litigant ought not to be denied an opportunity of having a  lis determined on merits unless he has, by gross  negligence, deliberate inaction or something akin to  misconduct, disentitled himself from seeking the  indulgence of the court. The opinion of the trial Judge  allowing a prayer for setting aside abatement and his  finding on the question of availability of sufficient cause  within the meaning of sub-rule (2) of Rule 9 of Order 22  and of Section 5 of the Limitation Act, 1963 deserves to  be given weight, and once arrived at would not normally  be interfered with by superior jurisdiction."           23.     The ratio of the said decision does not militate against the  observations made by us hereinbefore.  The question in regard to  abatement  of a suit or appeal has not been raised.  We cannot enter into the disputed  question of fact at this stage as to whether there has been a substantial  representation of the estate of the deceased cross objectors.         24.     For the reasons aforementioned, we do not find any merit in  this appeal.  It is dismissed accordingly with costs.  Counsel’s fee is assessed  at Rs.10,000/- .