High Court in second appeal under Section 100 CPC cannot re-appreciate evidence absent substantial question of law; benami plea fails without cogent proof.

JUDGMENT :

K. Murali Shankar, J.

The Second Appeal is directed against the judgment and decree made in A.S.No.31 of 2018, dated 03.08.2019, on the file of the Principal District Court, Thanjavur confirming the judgment and decree made in O.S.No.135 of 2011, dated 23.02.2018, on the file of the Principal Subordinate Court, Thanjavur..

2. The appellants are the defendants. The respondent as plaintiff filed the suit in O.S.No.135 of 2011, on the file of the Subordinate Court, Thanjavur claiming partition and allotment of 1/3^rd share in the suit property. The defendants filed their written statement and contested the suit. The learned trial Judge, after framing necessary issues and after full trial, passed a judgment dated 23.02.2018, granting the preliminary decree declaring that the plaintiff is entitled to 1/3^rd share in the suit property. Challenging the preliminary decree, the defendants preferred an appeal in A.S.No.31 of 2018 and the learned Principal District, Thanjavur, upon considering the materials available on record and on hearing the arguments of both sides, passed the impugned judgment and decree, dated 03.08.2019 dismissing the appeal and thereby confirming the judgment and preliminary decree passed by the trial Court. Challenging the dismissal of the first appeal, the defendants have preferred the present Second Appeal.

3. At the outset, it is necessary to refer the mandate of Hon'ble Supreme Court for High Courts in deciding the second appeal under Section 100 of the Civil Procedure Code , given in the case of Gurnam Singh (dead) by LRs., and others Vs. Lehna Singh (dead) by LRs., reported in AIR 2019 SC 1441, that the jurisdiction of the High Court in an appeal under Section 100 of the Code of Civil Procedure is strictly confined to the case involving substantial question of law and the relevant passage is extracted hereunder:

“18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini , (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”

4. The Hon'ble Supreme Court in the case of Chandrabhan Vs. Saraswati and others reported in 2022 SCC OnLine SC 1273 has specifically held that right of appeal is not automatic and right of appeal is conferred by statute and when statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to the High Court to sit in appeal over the factual findings arrived at by the First Appellate Court and the Hon'ble Supreme Court summarized the principles relating to Section 100 C.P.C., which are as follows;

“(i) An inference of fact from