2021 Supreme(SC) 469

SUPREME COURT OF INDIA
N.V. RAMANA, CJI., A.S. BOPANNA, HRISHIKESH ROY, JJ.
Balasubramanian and Another – Appellants
Versus
M. Arockiasamy (dead) through LRs. – Respondent
Civil Appeal No. 2066 of 2012
Decided On : 02-09-2021

IMPORTANT POINTS
(1) Second appeal – Question of law for consideration will not arise in abstract but in all cases will emerge from facts peculiar to that case and there cannot be a strait-jacket formula.
(2) Second appeal – Merely because High Court refers to certain factual aspects in the case to raise and conclude on question of law, same does not mean that factual aspect and evidence has been reappreciated.
(3) Specific Relief Act, 1963 – Section 38 – Relief of perpetual injunction cannot be granted in cases where plaintiff has failed to establish possession of suit property.

Headnote:

(A) Civil Procedure Code, 1908 – Section 100 – Specific Relief Act, 1963 – Section 38 – Second appeal – Scope and ambit – Suit seeking relief of perpetual injunction – There is very limited scope for reappreciating evidence or interfering with finding of fact rendered by trial court and first appellate court in a second appeal under Section 100 of CPCP – When divergent findings on fact were available before High Court in an appeal under Section 100 of Civil Procedure Code though reappreciation of evidence was not permissible, except when it is perverse, but it was certainly open for High Court to take note of case pleaded, evidence tendered, as also findings rendered by two courts which was at variance with each other and one of views taken by courts below was required to be approved – Though High Court erred in not clearly answering question of law framed by it under Section 100, CPC, High Court was still within its jurisdiction to determine whether reading of evidence on record by one of Courts below was perverse – Question of law for consideration will not arise in abstract but in all cases will emerge from facts peculiar to that case and there cannot be a strait-jacket formula – Merely because High Court refers to certain factual aspects in the case to raise and conclude on question of law, same does not mean that factual aspect and evidence has been reappreciated. (Paras 13, 14 and 15)

(B) Specific Relief Act, 1963 – Section 38 – Suit seeking relief of perpetual injunction – Plaintiff except contending that suit schedule property was being enjoyed for past 40 years by paying kist has not in fact referred to manner in which such right had accrued so as to suggest or indicate unassailable right to be in physical possession – On other hand, defendant while denying right of plaintiff to claim relief had traced manner in which property had devolved and right which is being claimed by defendant – Possession of suit schedule property was also not established by plaintiff – That apart, though lower appellate court had reversed judgment of trial court, this aspect of matter relating to grievance of plaintiff that he had been dispossessed had not been addressed and despite plaintiff not being in possession injunction being granted by lower appellate court would not be justified – It would not be appropriate to interfere with judgment of High Court which is in consonance with fact situation arising in instant case – Appeal dismissed. (Paras 15, 17, 18, 19 and 20)

Facts of the case:

Appellant-Plaintiff filed suit bearing O.S No. 769/1987 seeking the relief of perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of plaint schedule property, as claimed by the plaintiff. Appellant is before this Court in this appeal, assailing the judgment dated 30.10.2009 passed by High Court of Madras, Madurai Bench in S.A. No. 1303 of 1994. Respondents are the legal representatives of deceased first defendant before the Trial Court.

Findings of Court:

Plaintiff himself had filed applications before the trial court claiming that the defendant No.1 had trespassed into the suit property and encroached the house after grant of temporary injunction. In another application filed it was contended by the plaintiff that the defendant had trespassed and is residing in the thatched house. Whereas the defendant No.1 in his written statement itself had stated that he is residing in the thatched house situate in the suit schedule property. The said applications have not been pressed to its logical conclusion nor has any other step been taken to seek restoration of possession by establishing that possession in fact had been taken by the defendant No.1 subsequent to the interim injunction. Therefore, on all counts the possession of the suit schedule property was also not established.

Result : Appeal dismissed.