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Judgment
Honourable Mr. Justice G. Rajasuria
This second appeal is focussed by the defendants challenging the judgment and decree dated 14.02.2008 passed in A.S.No.38 of 2007 on the file of the I Additional Subordinate Judge, Madurai, in reversing the judgment and decree dated 30.11.2006 passed in O.S.No.108 of 2003 on the file of the District Munsif cum Judicial Magistrate No.I, Usilampatti.
The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
A summation and re''sume'' of the facts absolutely necessary for the disposal of this second appeal would run thus:
The plaintiffs filed the suit seeking injunction as against the defendants so as to restrain them from interfering with their peaceful possession and enjoyment of the suit property which is an agricultural land.
The defendants resisted the suit by filing the written statement.
Whereupon, the trial Court framed the relevant issues.
During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.32 were marked on the side of the plaintiffs. D.W.1 and D.W.2 were examined and Exs.B.1 to B.14 were marked on the side of the defendants. Exs.C.1 to C.5 were marked as Court documents.
Ultimately, the trial Court dismissed the suit, as against which the appeal was filed by the plaintiffs. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit granting injunction in the year 2008. However, the second appeal was not presented within the period of limitation, but with a huge delay of 1088 days, the second appeal was presented; which delay was condoned and now, the matter is before this Court for hearing on admission of the second appeal.
The learned Counsel for the plaintiffs appropriately and appositely, correctly and convincingly, by placing reliance on an indubitable and indisputable copy of the plaint in O.S.No.125 of 2008 on the file of the District Munsif Court, Usilampatti, which is the suit filed by the third defendant/third appellant -Vendi as against the same plaintiffs/ respondents for recovery of the same property involved in this matter. He would implore and entreat that the present second appeal is nothing but an abuse of the process of the Court as the third defendant filed a fresh suit for recovery of possession and in the meanwhile, he is trying to approach this Court for injunction and as such, this is a fit case for being rejected at the threshold itself.
The learned Counsel for the defendants would vehemently stress upon the fact that the first appellate Court placed reliance on bogus, false and mendacious documents filed by the plaintiffs and upset the reasoned finding of the trial Court, warranting interference in second appeal.
A perusal of the memorandum of second appeal would reveal that the following alleged substantial questions of law are found set out thusly:
(i) Whether the 1st Appellate Court has correctly given findings in respect of the documents filed by the appellants?
(ii) Whether the 1st Appellate Court has given any reasonable findings in respect of the possession of the properties by the Respondents?
(extracted as such)
At this juncture, I would like to recall and recollect the dictum laid down by the Honourable Apex Court in the following decisions:
(i) Kashmir Singh Vs. Harnam Singh and Another,
(ii) Hero Vinoth (minor) Vs. Seshammal, and
(iii) State Bank of India and others v. S.N. Goya reported in 2009 1 L.W. 1; which would be to the effect that u/s 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
Keeping in mind the aforesaid dictum of the Honourable Apex Court, I would like to analyse the matter.
It is ex facie and prima facie clear that there is no question of law much less a substantial question of law involved to be decided in this second appeal. Over and above that, after the passing of the decree by the first appellate Court granting injunction on 14.02.2008, the defendants virtually accepted the verdict and kept quiet. As an afterthought and by change of mind, they did choose to present this second appeal with such a huge delay of 1088 days and that itself was indicative of the fact that they are not in possession of the suit property.
By way of buttressing and fortifying the plea of the plaintiffs that they are in possession of the suit property, the third defendant himself filed a separate suit in O.S.No.125 of 2008 on the file of the District Munsif Court, Usilampatti, for recovery of possession of the same property herein and in such a case, in my considered opinion, entertaining this second appeal is a well neigh impossibility.
Regarding the contention of the defendants that the first appellate Court placed reliance on the untenable documents, I would like to observe that it is open for the plaintiff in O.S.No.125 of 2008 on the file of the District Munsif Court, Usilampatti, to canvass his case highlighting all the defects in the case of the defendants therein and it is for the Court which is seized of the matter to deal with it untrammelled and uninfluenced by any of the observations made by this Court in this second appeal.
On balance, this second appeal is dismissed. No costs.