Important Points
1. Judgment rendered by High Court without following procedure of framing substantial question of law at the time of admission of the second appeal cannot be sustained.
2. Whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less any substantial question of law within meaning of Section 100 of the Code of Civil Procedure.

Headnote:Code of Civil Procedure, 1908 -Section 100-Second appeal-Scope of jurisdiction-Concurrent finding of fact by lower Courts-No question of law framed by High Court at time of admission of second appeal - Reappreciated evidence and reversed findings of lower Courts-Whether sustainable -Held, No-Procedure for admission of second appeal itself not followed-Whether finding of fact reached by courts below is against weight of evidence or not is a question which will remain in realm of appreciation of evidence and does not project any question of law.
       Held : The High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. The judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. (Para 11)
       The approach adopted by the learned Single Judge in the impugned judgment in paragraph 12 to the effect that as both the courts below ignored the weight of prepondering circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in re-appreciating the evidence and in coming to its own independent conclusions, is, to say the least, patently erroneous in law and cannot be sustained. Whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law, which can enable the High Court in second appeal to upset such a finding of fact. (Para 14)

Judgement Key Points

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Judgment

S.B. Majmudar, J.-In this appeal by special leave, the appellant-plaintiff has brought in challenge the Judgment and Order rendered by a learned Single Judge of the High Court of Judicature of Bombay at Aurangabad in Second Appeal No. 188-A of 1982. The High Court, by the impugned judgment, has allowed the appeal of respondent-defendant and has dismissed the appellant’s suit. In order to appreciate the grievance of the appellant against the impugned judgment, a few introductory facts are required to be noted at the outset.

Introductory Facts:

2. The appellant had purchased 2 acres and 33 gunthas of agricultural land from Survey No. 23/AA situated at village Shekta in Gevrai Taluka of Beed District in State of Maharashtra from one Degdu in the year 1967. It is his case that as he was in need of money and when the respondent-defendant advanced him Rs. 1,000/-, he got executed a sale deed from the appellant for Survey No. 21/AA of the same village on 29th January, 1973 as a security. After some time, the appellant was in a position to return the said amount with interest to the respondent-defendant. Both, therefore, came to Gevrai for re-executing the sale deed in respect of Survey No. 21/AA. According to the appellant, at that time respondent-defendant demanded Rs. 500/- more and he was not prepared to re-execute the sale deed in respect of Survey No. 21/AA unless and until Rs. 500/- more were paid to him by the appellant. As the appellant was not having Rs. 500/- more, the respondent asked the appellant to execute a sale deed in respect of suit field Survey No. 23/AA as a security towards the amount of Rs. 500/-. The appellant had, therefore, executed the said sale deed and then only the respondent had re-executed the sale deed in respect of Survey No. 21/AA in favour of the appellant. It is the case of the appellant that despite the execution of the sale deeds by the appellant in favour of respondent-defendant in connection with Survey Nos. 23/AA and 21/AA both the lands remained with him as the sale deeds were nominal. As the respondent tried to interfere with the appellant’s possession of Survey No. 23/AA, the appellant filed regular Civil Suit No. 51/76 on 10th February, 1976 in the Court of Civil Judge, Junior Division at Gevrai for a declaration that the sale deed dated 31st October, 1975 bearing No. 2159 regarding Survey No. 23/AA was null and void. The appellant also prayed for permanent injunction restraining the respondent-defendant from interfering with the plaintiff’s possession over the said field. Pending the suit an interim injunction was granted in favour of the appellant.

3. The respondent resisted the suit by filing written statement at Exhibit-43. His case was that he had purchased Survey No. 21/AA to the extent of 4 acres for Rs. 2,500/- from the plaintiff and the possession was delivered to him. That it was a contract of sale and was not towards the security of the amount. That after some days he purchased 5 acres and some gunthas of land from eastern side of Survey No. 23/AA from one Tulsiram. That portion is adjacent to the suit field. That there was an oral agreement between the plaintiff and himself, that the plaintiff would execute a sale deed in respect of suit field being some other part of Survey No. 23/AA in favour of the respondent and in its exchange respondent would execute a sale deed in respect of Survey No. 21/AA in favour of the appellant. That after the said oral agreement both came to Gevrai and exchanged their lands by executing the sale deeds in favour of each other. He was, therefore, the owner and in possession of the suit field.

4. On these pleadings, the following issues were framed by the learned Trial Judge:

“1. Does the plaintiff prove that he executed the sale-deed bearing No. 2159 dated 31st October, 1975 as a security for the amount of Rs. 500/-?

2. Does he further prove that he is in possession over the suit land?

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1999 Supreme(SC) 147

Cases Referred (2)