w w w . L a w y e r S e r v i c e s . i n



Pallipalayam Spinners (P) Ltd., through its Managing Director v/s Yesuvadian Anbalagan & Others


Company & Directors' Information:- PALLIPALAYAM SPINNERS PRIVATE LIMITED [Active] CIN = U17111TZ1974PTC000691

    S.A. No. 781 of 2010

    Decided On, 11 July 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE M. SUNDAR

    For the Appellant: S. Kumar, Advocate. For the Respondents: R1 & R2, S. Kadarkarai, Nambu Marimuthu, R3, S. Palanivelayutham, R5 & R6, C. Prithiviraj, C. Selvaraj, Advocates.



Judgment Text

(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree made in A.S.No.30 of 2009, dated 19.07.2010, on the file of the District Court, Tirunelveli, reversing the Judgment and Decree made in O.S.No.29 of 2007, dated 17.12.2008, on the file of Sub Court, Valliyoor.)

1. This litigation commenced more than a decade and three years ago. To be precise, this litigation commenced on 01.02.2005, when a partition suit in O.S.No.29 of 2007 came to be filed on the file of the 'Subordinate Judge's Court, Valliyoor', which shall hereinafter be referred to as 'trial Court' for the sake of brevity, clarity and convenience.

2. One, Iyyakkan Nadar died on 13.11.1989, leaving behind his wife, Nallamuthammal, three sons and four daughters as heirs. Iyyakkan Nadar left behind property in the form of house properties and agricultural lands. With regard to the estate of Iyyakkan Nadar, there were claims with regard to agricultural lands amongst his three sons. This is the central theme of this lis and subject matter of the instant litigation.

3. Two sons of Iyyakkan Nadar, i.e., Yesuvadian Anbalagan and Gnanasekaran, filed the aforesaid suit in the trial Court. Main limbs of the prayer in the suit was for partition, separate possession of their 19/21 share in the agricultural properties and permanent injunction with regard to Wind Farm being put up in the agricultural properties. Regular residuary prayer and prayer for costs also form part of the other limbs of the prayer.

4. In the suit, the other son of Iyyakkan Nadar, namely, Gunaseelan and his minor son, Nirmal, were arrayed as defendants 1 and 2. One, Pallipalayam Spinners Pvt Ltd., (hereinafter referred to as 'said Company') to whom Gunaseelan and his minor son had alienated a part of the agricultural lands was arrayed as third defendant. The erstwhile Tamil Nadu Electricity Board (now TANGEDCO) and its Executive Engineer were arrayed as defendants 4 and 5, respectively, as there were some complaints about a Transformer being installed in the alienated part of the agricultural lands by the alienee.

5. Defendants entered appearance, filed written statements and contested the suit. Said Company filed a written statement in June, 2005. This was adopted by defendants 1 and 2, i.e., Gunaseelan and his minor son Nirmal.

6. The plaint was predicated on the basis that there was a oral partition after the demise of Iyyakkan Nadar, somewhere in the year 1992 and in the oral partition, the house properties which form part of the estate of Iyyakkan Nadar were divided amongst the heirs and the agricultural properties were left untouched. It is also the further pleading in the plaint that Iyyakkan Nadar's four daughters and wife released their entire shares in the estate vide two release deeds, dated 22.12.2004 and 07.01.2005, which were marked as Exs.A4 and A.5, respectively, in the trial Court.

7. To be noted, there is no dispute before this Court that the parties and particularly, Iyyakkan Nadar, profess Christian faith and therefore, the Indian Succession Act operates. In this view of the matter, his wife, Nallamuthammal, got 1/3 share in the estate and the remaining shares were divided amongst the sons and the daughters. This is the basis, on which the claim in the plaint by the two sons is laid for 19/21 share in the agricultural lands.

8. As would be evident from the narrative supra, the plaint schedule properties are the agricultural lands alone. Agricultural lands are contained in two Survey Numbers, i.e., S.No.505/3A and S.No.503/1, in Levinjipuram Village, within the limits of Panagudi Sub Registrar Office in Rathapuram Taluk, Tirunelveli District. As per plaint schedule description, there is 28.5 cents of land in S.No.505/3A and 57 cents of land in S.No.503/1, totalling 85.5 cents. This 85.5 cents, shall hereinafter be referred to as 'suit properties' for convenience and clarity.

9. It is not in dispute that first defendant and his minor son alienated a portion of the suit properties in favour of said Company, i.e., third defendant. It is not in dispute that the first defendant and his minor son had alienated entire 28.5 cents in S.No.505/3A and 8 cents in S.No.503/1, admeasuring 36.5 cents in all.

10. The basis and the ground on which the plaint is predicated has been set out supra. The written statement filed by the third defendant, i.e., said Company, resisted the suit primarily on one ground. That ground is there was a oral partition amongst all the heirs of Iyyakkan Nadar and the same was subsequently recorded vide a document, which goes by the nomenclature, 'Yadasthu'. This Yadasthu is dated 26.05.1992 and was marked as Ex.B2 in the trial Court. To be noted, it was marked subject to objection and there shall be a discussion in this regard in the later part of this judgment.

11. Pivotal contention and defence on the part of the defendants is that Ex.B2 pertains to entire estate of Iyyakkan Nadar, including the suit properties and therefore, plaintiffs, now, cannot seek partial partition of a part of the estate of Iyyakkan Nadar.

12. On the aforesaid rival pleading, parties went to trial. In the trial Court, first plaintiff, Yesuvadian Anbalagan, examined himself as PW1 and eight documents, i.e., Exs.A1 to A8 were marked on the side of the plaintiffs. On the side of the defendants, first defendant, Gunaseelan, examined himself as DW1 and one, Krishnakumar, Director of said Company, i.e., third defendant, was examined as DW2. Six documents, i.e., Exs.B1 to B6 were marked on the side of the defendants. Besides this, in the course of trial, an Advocate Commissioner was appointed to make a local inspection of the suit properties and to file a report in the Court. The Advocate Commissioner, after a local inspection, had filed a report along with his sketch as well as the Surveyor's sketch. The Advocate Commissioner's report, Advocate Commissioner's sketch and the Surveyor's sketch have been marked as three Court Exhibits.

13. After full contest and trial in the aforesaid manner, vide judgment and decree dated 17.12.2008, the trial Court dismissed the suit. The primary basis for dismissal of the suit by the trial Court or in other words the primary ground on which the plaintiffs were non-suited is that the trial Court believed Ex.B2, Yadasthu and had also read the deposition of first plaintiff, who examined himself as PW1, as mentioned supra, in a particular manner. The trial Court read the evidence of PW1 to mean that he has admitted the oral partition and therefore, Ex.B2 stands established.

14. As mentioned supra, there was objection to the marking of Ex.B2, inter alia, on the ground that it is an unregistered document and that it has no evidentiary value. It was also objected on the ground that said document is alien to the scheme of succession under the Indian Succession Act. It was also objected on the ground that the parties to the litigation are not parties to Ex.B2. However, the trial Court went into the aspect of whether it requires registration and whether it has been adequately stamped and ultimately, believed Ex.B2.

15. Aggrieved, the aforesaid two sons carried the matter in appeal, by way of regular First Appeal under Section 96 of 'Code of Civil Procedure, 1908,' (hereinafter referred to as 'CPC' for brevity). This regular First Appeal preferred by the two sons is A.S.No.30 of 2009 on the file of the 'Principal District Judge's Court, Tirunelveli', which shall hereinafter be referred to as 'First Appellate Court' for the sake of convenience and clarity. The aforesaid five defendants in the trial Court were arrayed as five respondents in the regular First Appeal, being A.S.No.30 of 2009 on the file of the First Appellate Court. After full contest and hearing, the First Appellate Court, vide judgment and decree dated 19.07.2010, reversed the dismissal decree of the trial Court. First Appellate Court allowed the First Appeal and granted the reliefs prayed for by the plaintiffs. First Appellate Court also found that a Transformer has been erected in a part of the suit properties by defendants 4 and 5 ('defendants 4 and 5' shall hereinafter collectively be referred to as 'TNEB' for the sake of brevity) and directed removal of the Transformer.

16. The basis on which the First Appellate Court allowed the appeal primarily is on the ground that Ex.B2 cannot be looked into, it ought not to have been marked and most importantly, the heirs of Iyyakkan Nadar have not signed Ex.B2. In other words, the First Appellate Court, being the last Court on facts, exercising powers under Section 96 CPC, examined Ex.B2 and found that only two individuals, namely, Arulmani and Subbiah Nadar, who were only mediators, have signed Ex.B2 and none of the heirs of Iyyakkan Nadar has signed Ex.B2. To be noted, the two mediators were not examined as witnesses in the trial Court. This means that the First Appellate Court has tested Ex.B2 even on a demurer, i.e., by presuming that it can be marked and that it has evidentiary value. With regard to the direction to TNEB as well as said Company to remove the Transformer installed in a portion of the suit property, First Appellate Court went on the basis that Exs.C1 and C.2, being the Advocate Commissioner's report and sketch, which includes Photographs and Negatives, establish that Transformer has, in fact, been installed in the suit properties.

17. Interestingly and intriguingly, first defendant and his minor son, who are son and grandson, respectively, of late Iyyakkan Nadar, did not prefer any appeal. In other words, they did not carry the matter in appeal any further. This is not in dispute before this Court.

18. In such circumstances, said Company, which is the third defendant in the trial Court and which is an alienee having purchased a part of the suit properties from defendants 1 and 2, has preferred the instant Second Appeal. This Second Appeal was filed on 24.09.2010 and notice was issued by this Court. To be noted, the Second Appeal was not admitted, but notice regarding admission was only issued.

19. Post notice, after all the respondents have entered appearance through respective Counsel, the Second Appeal is before this Court today for final disposal.

20. With the consent of all learned Counsel before this Court, this Second Appeal was taken up for final disposal. On behalf of the lone appellant, Mr.S.Kumar, learned Counsel is before this Court. On behalf of the respondents 1 and 2, who are plaintiffs 1 and 2, respectively, in the trial Court, Mr.S.Kadarkarai, learned Counsel is before this Court. On behalf of respondents 3 and 4, who are defendants 1 and 2 in the trial Court, Mr.Nambu Marimuthu, learned Counsel is before this Court on behalf of Mr.S.Palanivelayutham, Counsel on record. On behalf of TNEB, i.e., respondents 5 and 6, Mr.C.Prithiviraj, learned Counsel is before this Court on behalf of Mr.C.Selvaraj, Standing Counsel for TNEB.

21. The submissions of learned Counsel for appellant broadly are as follows:

a) A suit for partial partition is bad and therefore, the trial Court was correct in dismissing the suit. In other words, this plea of partial partition is predicated on the basis of Ex.B2, Yadasthu, as well as Exs.A4 and A5, release deeds executed by Daughters and Wife of Iyyakkan Nadar.

b) The First Appellate Court erred in granting the relief of mandatory injunction qua removal of Transformer when there was no prayer in this regard.

c) Though the son and grandson of Iyyakkan Nadar, i.e., defendants 1 and 2 have not preferred any appeal, said Company, in its capacity as vendee / alienee having stepped into the shoes of defendants 1 and 2, is entitled to maintain the instant Second Appeal.

22. Opposing the Second Appeal, Mr.S.Kadarkarai, learned Counsel for respondents 1 and 2 (plaintiffs 1 and 2 in the trial Court) made submissions, which are broadly as follows:

a) Ex.B2 ought not to have been marked, it has no evidentiary value, whatsoever, under law. On a demurer, it was submitted that even if Ex.B2 is looked into, it is of no avail as it has not been signed by the sons or for that matter any of the heirs of Iyyakkan Nadar. It has been merely signed by the aforesaid two individuals, namely, Arulmani and Subbiah Nadar, who are said to be mediators.

b) There is no error in the First Appellate Court granting the relief qua removal of Transformer from the suit properties, as the prayer in the plaint includes a permanent injunction regarding establishing / installing a Wind Farm in the suit schedule properties.

c) No substantial question of law arises in the Second Appeal and therefore, this Second Appeal does not deserve to be admitted and entertained. To be noted, this submission was made on the basis of Sub- Section 5 of Section 100 CPC.

23. Before this Court proceeds with the discussion, it may be necessary to look at the questions that have been proposed as substantial questions of law by the appellant as protagonist of this Second Appeal. The two questions proposed as substantial questions of law by the protagonist / appellant are as follows:

'a) Whether the Lower Appellate Court is right in granting a decree for partition to the plaintiff when PW1 clearly admitted the sale is infavour of the appellant only after the partition'

b) Whether the Lower Appellate Court is right in granting a decree for mandatory injunction for removal of transformer and accessories from the suit properties when such a relief is not at all prayed for by the plaintiff and when those were not present in the suit property''

24. The first statement, which is pivotal to the entire lis turns heavily on Ex.B2, Yadasthu. A perusal of the judgment of the trial Court reveals that marking of Ex.B2 was objected to and ultimately, the trial Court came to the conclusion that there is no necessity to pay stamp duty for Ex.B2. On that basis, Ex.B2 was believed and Ex.B2 was looked into. The records of the Courts below are before this Court and this Court had the benefit of perusing the same.

25. Ex.B2 was perused.

26. A perusal of Ex.B2 reveals that only M.Arulmani and T.Subbiah Nadar, two individuals have signed Ex.B2. Neither the two plaintiffs nor the first defendant, who are the three sons of Iyyakkan Nadar have signed the same. Whether it was delivered to them and they have received it is the further extended plea. It is not in dispute before this Court that neither of the two individuals, i.e., Arulmani and Subbiah Nadar, were examined as witnesses in the trial Court. Therefore, even if Ex.B2 is tested on a demurer (presuming it to be valid, admissible in evidence and having evidentiary value), it does not further the case of the appellant.

27. The other ground on which the trial Court non-suited the plaintiffs, as alluded to supra, is PW1 has admitted in cross examination about the partition. The learned Counsel for the appellant drew the attention of this Court to that portion of the cross examination of PW1, on 19.06.2006 and the same reads as follows:

'TAMIL'

28. Learned Counsel for the appellant also drew the attention of this Court to the suggestion put to PW1 and his answer, in the deposition, which reads as follows:

'TAMIL'

29. A perusal of the deposition of PW1, to the mind of this Court, evidences that it is the case of the plaintiffs that a partition did occur in the year 1992, that it was an oral partition, but only the house properties were partitioned under this oral partition. It is also the deposition of PW1 that this oral partition was not subsequently recorded. Further more, the extracted portion of the deposition of PW1 would demonstrate that PW1 has articulated very clearly in the cross examination that other properties, i.e., other than the house properties of Iyyakkan Nadar, are yet to be partitioned. To be noted, 'TAMIL' is part of the extracted portion supra. Therefore, the trial Court holding that PW1 has admitted that the oral partition, which, in fact, is Ex.B2, is incorrect. What PW1 has admitted is the oral partition pertaining to house properties and not Ex.B2. In any event, Ex.B2 cannot be looked into, as the same has not been signed by any of the parties to the lis and the two third parties, who are signatories to the same, were not examined before the trial Court. This aspect of the matter has been independently examined by the First Appellate Court. The points for consideration / determination formulated by the First Appellate Court are four in number and the same are as follows:

'1. Is it true that there was no partition of the schedule property in the family of appellants/plaintiffs and the respondent 1/1st defendant'

2. Whether the appellants/plaintiffs are entitled to partition and separate possession of the 19/21 shares in the schedule property by metes and bounds'

3. Whether the appellants/plaintiffs are entitled to permanent injunction as against to the respondents 3 to 5/defendants 3 to 5'

4. To what relief the appellants/plaintiffs are entitled to''

30. While answering point no.1, the First Appellate Court has held as follows:

'...To prove the case of the plaintiffs though the first plaintiff Yesuvadian Anbalagan was examined as P.W.1 and deposed that after the death of his father Iyyakannu Nadar partition took place with regard to house and house sites between the legal heirs and all of them are enjoying the same separately by paying kist and pattas also stand in their name individually. No piece of documentary evidence is produced to prove the factum of partition took place and parties are in possession of the house and house sites and patta also transferred in the name and paying house taxes separately. P.W.1 further more in support of their case asserted that there was no partition between them with regard to the punja and agricultural land as shown in the schedule property. Contra it is the definite case of defendants 1 to 3 that during the life time of Iyyakannu Nadar there was oral family partition on 04.06.1989 in the family with regard to the schedule properties and other properties owned by the said Iyyakannu nadar and with regard to the immovable properties including the schedule properties were divided by metes and bounds in the presence of Arulmani and Subbiah on 26.05.1992 and the 1st defendant was allotted definite property in S.No.501, 502/2 and 503/3...'

31. First Appellate Court further went on to hold as follows:

'...D.W.1 in his cross examination very categorically admitted that he signed in the Ex.B.2 in acknowledging the receipt of the same and nothing revealed in the document that his brother also received the copy of the Yadasth and as per Ex.B.2 partition took place and he was allotted properties and in turn sold the same...'

'...A careful perusal of Ex.B.2 document prove except the signature of mediators Arulmani and Subbiah Nadar the parties to the document namely plaintiffs 1 and 2, first defendant and their mother Nallamuthammal did not sign in this important document...'

32. With regard to the direction to said Company and TNEB to remove the Transformer in the suit schedule property, the First Appellate Court has held as follows:

'...Eventhough the plaintiffs at the time of filing the suit requested permanent injunction restraining the defendants 3 to 5 to install the wind farm in the schedule property the commissioner's report and plan Ex.C.1 and C.2 and Ex.B.1 photo and negative prove that transformer was installed in S.No.505/3A and hence the defendants 3 to 5 are directed to remove the same in the 1st schedule property within a period of one month...'

33. In support of his submissions, learned Counsel for the appellant pressed into service an unreported judgment of this Court, dated 01.09.2017, made by a Hon'ble Single Judge of this Court. This judgment was rendered in A.S.No.730 of 2008 [Vasantha and others v. Thirugnanammal and others] and the attention of this Court was drawn to paragraph Nos.20 and 21, which read as follows:

'20. The attempt by the plaintiffs to implead the legal representatives is half hearted, in my considered opinion. Though the plaintiffs have now chosen to implead the legal representatives of the daughters of Annamalai Nadar through his first wife, they have not chosen to include the property which bequeathed to Manonmaniammal under Will dated 16.11.1957 in the suit. Therefore, the suit is bad for partial partition.

21. Mr.R.Thirugnanam, learned counsel would contend that his plea was not taken by the trial Court. In my opinion, it is not necessary. The existence of the property is not in dispute, therefore, once it is shown that the property which admittedly belongs to the predecessor has not been included it will entail the defendants to seek dismissal of the suit on that ground.'

34. In other words, the aforesaid judgment, being Vasantha's case was pressed into service by the learned Counsel for the appellant to buttress the principle that partial partition is impermissible and therefore, the dismissal of the suit by the trial Court is correct.

35. This Court has carefully examined the issue and applied its mind.

36. The question of partial partition would arise only if Ex.B2 is believed. In the instant case, there is nothing on record to show that the plea of the plaintiffs that only the house properties were partitioned in the oral partition of 1992 and the other properties, i.e., agricultural properties or in other words, the suit properties, were not partitioned has been dislodged. In the absence of anything to dislodge the same and when Ex.B2 cannot be looked into, the question of partial partition does not arise and therefore, this principle does not help further the case of the appellant.

37. Appellant pressed into service two more judgments, one is P.Selvaraj's case, reported in 1999 (2) MLJ 159 [P.Selvaraj and another v. P.Swamy Nadar and others], rendered by a Hon'ble Single Judge of this Court and the other is, Om Prakash's case, reported in 1999 (1) SCC 441 [Om Prakash and others v. Ram kumar and others].

38. Both the aforesaid case laws were pressed into service to buttress the principle that the Courts ought not to grant relief when there is no specific prayer in that regard.

39. With regard to P.Selvaraj's case, learned Counsel drew the attention of this Court to paragraph No.12, which reads as follows:

'12. It is needless to point out that in a suit for mandatory injunction, the court has to exercise its discretion and such a relief cannot be granted merely on the basis of certain facts. The court has to consider as to whether the parties seeking mandatory injunction were guilty of laches or as to whether there was any acquiescence on the part of the plaintiff. The further question to be considered before the relief of mandatory injunction is granted is also as to whether the damages caused to the plaintiff could be compensated in terms of money. Only after consideration of all the said issues, a court of equity can exercise its discretion to grant mandatory injunction or not. Admittedly, in the present suit, thee has been no prayer for mandatory injunction and no occasion arose for the trial court to frame or consider the said issue.'

40. With regard to Om Prakash's case, this Court's attention was drawn to a portion of paragraph No.4 of the said judgment, which reads as follows:

'4. ...A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. In an action by the landlord the tenant is expected to defend only the claim made against him and if a cause of action arises to the landlord on the basis of the plea set up by the tenant, in such action, it is necessary that the landlord seeks to enforce that cause of action in the same proceedings by suit at the amendment or by separate proceedings to entitle the landlord to relief on the basis of such cause of action. The principle that the court is to mould the relief taking into consideration subsequent events is not applicable in such cases.'

41. As far as P.Selvaraj's case is concerned, a perusal of the judgment reveals that it is a case where the Court below did not have any occasion to exercise its discretion by looking into the necessary ingredients and aspects of the matter, or in other words, the principle is relief, if any, can be granted only after consideration of all the necessary ingredients and aspects of the matter.

42. With regard to Om Prakash's case, the principle that the Court can mould the relief taking into consideration subsequent events, cannot be made applicable to an action by the landlord, which is resisted by the tenant on the basis of certain subsequent developments.

43. In the considered opinion of this Court, both the aforesaid case laws do not help the appellant. The reason is, in the instant case, there is a clear prayer for permanent injunction with regard to setting up of a Wind Farm in the suit properties, which has been alluded to supra. For the purpose of absolute clarity, this Court feels it is necessary to extract the prayer portion in the plaint. Prayers made in the plaint are contained in paragraph No.12 of the plaint and the same reads thus:

'12. It is therefore prayed that your honour may be pleased to pass a decree in favour of the plaintiffs

a) partition and separate possession of plaintiffs' 19/21 share in the schedule properties by metes and bounds;

b) permanent injunction restraining the defendants 3 to 5, their men, agents or subordinates from taking any steps to install any wind farm in the schedule properties;

c) directing the defendants to pay the cost of the suit; and

d) such other reliefs as this Honourable Court deems fit and proper in the circumstances of the case and thus render justice.'

44. A bare perusal of the above would reveal that prayer (b), or in other words, sub-paragraph (b) of paragraph No.12 of the plaint pertains to an injunction qua setting up of Wind Farm in the suit properties. The Advocate Commissioner's report certainly states that Transformer has, in fact, been put up in the suit properties. Learned Counsel for the appellant points out that it would only be a small part of the suit properties, which is barely two feet. Be that as it may, once there is a finding that there is some structure that has been put in a part of the suit properties, irrespective of how miniscule or infinitesimally small the same may be, the cause of action certainly exists. When cause of action exists and when there is a prayer, there is no difficulty in the Court moulding the relief and granting the prayer with regard to removal of the Transformer by defendants 3, 4 and 5, i.e., said Company and TNEB.

45. This takes us back to the two questions that have been propounded and proposed by the appellant as substantial questions of law in this Second Appeal. The same have already been extracted supra.

46. In the light of the narrative supra, this Court has carefully applied its mind to the two questions proposed and propounded by the appellant. With regard to the admission by PW1, it has been alluded to supra and this Court is clear in its mind that the admission is only with regard to oral partition regarding the house properties alone and it is not an admission regarding Ex.B2. This is with regard to the question proposed as question A, or in other words, the first question. With regard to the question proposed as B, i.e., the second question, relief being granted without there being any prayer, the same has been alluded to supra and this Court has also come to the conclusion that when there is a prayer for injunction qua Wind Farm in the suit properties, there is no impediment for the Court moulding the relief, however infinitesimally small the intrusion may be. One other aspect with regard to the relief qua removal of Transformer is, Director of said Company, who deposed as DW2, has deposed in cross examination with regard to the Transformer. It is his deposition that TNEB officials had made local inspection and he does not remember the date on which the connection was granted. Therefore, both the aforesaid questions proposed by the appellant cannot be entertained in the instant Second Appeal. In other words, no substantial question of law arises in the instant Second Appeal.

47. Further more, this Court also examined as to whether the aforesaid questions proposed by the appellant would qualify as substantial questions of law which are distinguishable from mere questions of law. This principle has been elucidatively laid down by the Hon'ble Supreme Court. This principle that substantial question of law that is vastly different from mere question of law was first laid down by a Full Bench of this Court in a celebrated Rimmalapudi's case reported in AIR 1951 Madras 969 [Rimmalapudi Subba Rao v. Noony Veeraju]. This principle was approved by the Hon'ble Supreme Court in another celebrated Constitution Bench judgment, being, Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., reported in AIR 1962 SC 1314. This continues to be good law until this date. This has been followed as late as 2001 in Santosh Hazari's case, reported in 2001 (3) SCC 179 [Santosh Hazari v. Purushottam Tiwari and others] and the relevant portion are at paragraph Nos.12 and 14, which reads thus:

'12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:

..when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

13. ...

14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.'

48. It has been followed with approval even as late as 2016 by the Hon'ble Supreme Court in Malan Bi's case case, reported in 2016 (10) SCC 315 [Syeda Rahimunnisa v. Malan Bi] and the relevant portion is paragraph No.25, which reads thus:

'25. A three-Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari[Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] speaking through R.C. Lahoti, J. (as his Lordship then was) examined the scope of Section 100 CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under:

9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait [Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami [Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713] and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadamv. Savitribai Sopan Gujar, (1999) 3 SCC 722] .)

10. At the very outset we may point out that the memo of second appeal filed by the appellant-plaintiff before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on 'substantial question of law involved in the case'. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.

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12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172 : (1927-28) 55 IA 235 : 1928 SCC OnLine PC 31] , the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.[Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v

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. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, AIR 1951 Mad 969 : 1951 SCC OnLine Mad 100] : (Chunilal V. Mehta case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., AIR 1962 SC 1314] , AIR p. 1318, para 5) '5. …. when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.' And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (AIR p. 1318, para 6) '6. ' The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.' ... ... ... 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.' 49. On perusal of the aforesaid lucid and clear principles laid down by Hon'ble Supreme Court and the elucidation on what would qualify as substantial questions of law and when the same is applied to the factual matrix of the instant case and the contentions which have been set out supra, this Court has no difficulty in coming to the conclusion that the questions propounded by the appellant do not qualify as substantial questions of law. In any event, no other substantial question of law arises in the instant Second Appeal. 50. To be noted, respondents 3 and 4, before this Court, adopted the submissions of appellant. Respondents 5 and 6, i.e., TNEB, submitted that they are only formal parties and they remain bound by any order / judgment passed by this Court. Therefore, the rival contentions which have essentially fallen for consideration are those between that of the appellant and respondents 1 and 2. 51. In the light of the narrative supra and owing to all that have been set out supra, this Second Appeal fails, as no substantial question of law arises. This Second Appeal is dismissed. Considering the nature of the litigation, the relationship of the parties to the lis and the trajectory of the litigation, this Court deems it appropriate to leave the parties to bear their respective costs.
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