High Court has power to determine issue of fact.

The respondent in A.S. No. 91 of 1989 on the file of the Subordinate Judge, Srivilliputhur has filed this Second Appeal challenging the judgment and decree passed by the said Court.

2. The respondent/plaintiff filed O.S. No. 422 of 1984 on the file of the District Munsif, Srivilliputhur for declaration and injunction. The trial Court after full trial, dismissed the suit and the unsuccessful plaintiff filed A.S. No. 91 of 1989 on the file of the Subordinate Judge, Srivilliputhur who allowed the appeal and hence, the Second Appeal.

3. The following substantial questions of law are framed in the Second Appeal:-

"(1) Whether the judgment and decree of the lower appellate Court is in accordance with Order 41, Rule 31, C.P.C.?

(2) In a suit for declaration of title and for consequential injunction does not the initial burden of proof lie on the plaintiff?

(3) In keeping with the initial burden, is not the plaintiff bound to prove his case by positive evidence on his side, rather than by reliance on the loopholes, if any, on the side of the defendant?

(4) Is not secondary evidence as provided under Section 65 of the Indian Evidence Act worthy of credence and entitled to be acted upon and in the absence of the original in any way detract from the merits of a case?

(5) In the absence of a clear and specific finding as to actual possession and enjoyment, is the plaintiff entitled to a consequential relief of permanent injunction on mere proof of title alone? (6) Should a Court be swayed by the volume of evidence in a case without testing its quality?"

On 7-1-2000, both the parties requested this Court to frame an additional substantial question of law which is as follows :-

"Whether the High Court can determine issue regarding title, which has not been determined by Appellate Court properly, in exercise of its powers under Section 103 of Code of Civil Procedure?"

4. The suit properties shown in 'A' and 'B' schedule in the plaint are 20 cents and 66 cents respectively are in Rajapalayam. Both the parties claimed title to the suit properties and each one of them have produced their respective title deeds, apart from oral evidence let in by them in support of their respective contentions. As the defendant is the appellant herein, we have to consider his case in proper perspective and at the same time without forgetting the general principle that the plaintiff has to prove his case and he cannot succeed by taking advantage of lack of evidence in the case of the defendant. Though the trial Court approached the matter by considering the evidence let in by the plaintiff and at the same time the evidence adduced on the side of the defendant and has come to the conclusion. The first appellate Court while elucidating the various facts has written the judgment in such a way to have a feeling in the minds of those who read the judgment that it has shifted the burden of proof on the defendant. A perusal of the judgment with some care would go to show that the first appellate Court has also approached various issues on the basis of the claim made by the plaintiff, the appellant before the said Court and the way in which the facts were considered by shifting the burden on the defendant is not in accordance with law. However, the questions of facts are expected to be decided by the trial Court as well as the first appellate Court and the High Court in the Second Appeal should act on the question of law. While approaching the present Second Appeal by bearing the principle in mind, learned counsels for both sides felt that in the circumstances of the present case, the High Court in the Second Appeal has to consider the question of law on the basis of the facts presented by the respective parties along with the various substantial questions of law framed in the Second Appeal. In this case, learned counsels for both sides by consent requested this Court to frame an additional substantial question of law in order to satisfy the provisions of Section 103