IMPORTANT POINT
Where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

Headnote:(i) Civil Procedure Code, 1908-Section 100-Second Appeal-Substantial question of law is the sine qua non for exercise of jurisdiction under the amended provisions of Section 100 of the Code-High Court has not adverted to substantial question of law framed at the time of admission-High Court committed a patent error in disposing of second appeal considering only the questions formulated by him at the time of final hearing.
       Held : The learned single Judge of the High Court has considered only the questions formulated by him at the time of final hearing and has not touched the substantial question of law formulated at the time of admission of second appeal. The jurisdiction of the High Court is now confined to entertain only such appeals as involved substantial question of law specifically set out in the memorandum of appeal and formulated by the High Court. Since the High Court has not adverted to the substantial question of law framed at the time of admission, the High Court has committed a patent error in disposing of the second appeal. It was argued by learned counsel for the appellant that the High Court while formulating substantial questions of law at a later stage and while doing so has not put on notice the opposite party and has given a proper and fair opportunity to meet the same which in the instant case had not been done by the learned single Judge. A perusal of the fresh set of questions framed by the High Court at the time of final hearing cannot be termed to be substantial questions of law in contrast to mere questions of law as contemplated under Section 100 C.P.C. In this context, the ruling cited by the learned counsel for the appellants in Kshitish Chandra Purkait (supra) can be beneficially looked into. A three-Judge Bench of this Court held a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; b) reasons for permitting the plea to be raised should also be recorded; c) it has a duty to formulate the substantial question of law and to put the opposite party on notice and give fair and proper opportunity to meet the point; d) in absence thereof, hearing of the second appeal would be illegal. (Para 17)
       (ii) Civil Procedure Code, 1908-Section 100-Second Appeal-Limited scope of jurisdiction-High Court exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into factual arena of the case-Where finding of fact by lower appellate Court are based on evidence-High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
       Held : The learned Subordinate Judge, who heard the appeal, held that in view of the decision in C.R.O.P. No. 20 of 1962 there was no doubt that Kannan, the father of the first appellant was the legitimate son of Munian and that no document had been produced to establish that the suit property was the self-acquisition of Munian and that the settlement deed executed by Yengachari Muniammal referred to the property as being ancestral and that the family arrangement pleaded by virtue of which the suit properties was said to be allotted to Yengachari Muniammal had also not been proved. In this context, the High Court has brushed aside the decisions rendered by a competent Court when such decision is marked as an Exhibit A1 and the decision which had become final and is binding on the parties and which contained certain findings which are relevant to decides the instant case. We can also refer to certain other instances where the High Court has committed an error and re-appreciated the evidence. The learned Judge of the High Court erred in holding that the plaint does not state that Kannan, the father of the appellant Nos. 1, 3 and 4 and husband of second appellant is a legitimate son of Munian and his wife Muruvi evidently overlooking the dispute as to the status of Kannan was raised in the written statement filed by the respondents and not prior to the same. The High Court also has failed to note that in view of the defence taken by the respondents regarding the existence of more than one wife for Munian the ancestor of the appellants were compelled to give details of the wives of Munian during the course of the evidence and raised the same at the stage of arguments. Likewise, the High Court has exceeded its jurisdiction vested in it holding that the evidence of P.W.1 is discrepant and far from being satisfactory and not entitled to acceptance especially when the first appellate Court which is the final court of fact had appreciated the evidence and rendered its decision. Again the High Court has exceeded that the jurisdiction vested by holding that the evidence of P.W. 2 is not entitled to any credibility especially when the said evidence has been accepted by the final Court of fact. The High Court has committed an error in seeking to sit in judgment over the decision rendered in the reference under Section 30 of the Land Acquisition Act marked as Exhibit - A1 especially when the same had become final inter parties and under the subject matter of the second appeal. The learned Judge has erred in interpreting and pointing out the alleged floss in the decision rendered in the reference under Section 30 of the Land Acquisition Act without making any reference to the ultimate conclusion which had become final as between parties. Likewise, the Court has committed an error in holding that the appellants are not entitled to any relief claimed in the suit and to the suit A Schedule property in the absence of evidence evidently not adverting to the entire evidence adduced by the appellants. The Court has evidently overlooked that it has been pleaded that the suit properties had been in possession and enjoyment of the appellant s ancestors thus tracing title to the suit property. The learned Judge is also not correct in holding that the suit properties belong to Yengachari Muniammal merely on the basis of some evidence as to her possession especially when her title had not been established or traced by the respondents as required under law. The learned Judge, in our opinion, has misconstrued that the appellants are seeking relief on the basis of discrepancies in the case pleaded by the respondents evidently overlooking that the appellants had pleaded and proved their case and the same had been accepted by the final court of fact. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC. (Paras 20 to 22)
       (iii) Civil Procedure Code, 1908-Section 100-Second Appeal-Appellants filed suit for declaration of title and for permanent injunction and for possession-Appellants contended that suit property was a village house site and the same had been in possession and enjoyment of ancestors of appellants in their own right for several decades and that appellants were entitled to the said property by virtue of survivorship and inheritance on death of 2nd appellant s husband-Defendants 1 and 2 pleading that suit property had not been described properly, father of appellant was not a legitimate son, therefore, he had no manner, right, title, interest or possession of suit properties at any time-Their case that grandfather of first appellant was in exclusive possession of suit properties and on his death his two widows succeeded as his only heirs one of them executed a gift deed in favour of respondent, defendant 1-Dismissal of suit by trial Court-Suit decreed by first appellate Court-Second Appeal-Judgment passed by Subordinate Judge set aside-Whether High Court was justified in interfering with the findings of final Court of fact-(No)-High Court exceeded its jurisdiction in second appeal. (Paras 20 to 22, 24 and 25)

JUDGMENT

Dr. AR. Lakshmanan, J.-The above appeal was filed by the plaintiffs against the final judgment and order dated 28.7.1998 passed by the High Court of Judicature at Madras in S.A.No. 2147 of 1985 allowing the same and reversing the judgment dated 14.9.1984 passed by the learned Subordinate Judge, Tiruvallur in A.S.No. 21 of 1983 and restoring the judgment dated 21.01.1981 passed by the learned District Munsif, Poonamallee in O.S.No. 1459 of 1973.

2. The brief history of the case is as follows:-

The appellant Nos. 1 and 2 instituted the suit O.S.No. 1459 of 1972 against one Ganesan, Munuswami and the first respondent herein praying for declaration of title in respect of the A Schedule property and for permanent injunction in respect thereof and for possession of the B Schedule property. It was contended that the suit property measuring 66 feet North Southand 43 feet East West in Survey No. 46/2, Nehru Nagar, Kathivakkam Village was a village house site which has been described as A Schedule property and the same had been in possession and enjoyment of the ancestors of the appellants in their own right for several decades and that the appellants were entitled to the said property by virtue of survivorship and inheritance on the death of the second appellant s husband. There appellants herein filed O.S.No. 271 of 1966 against one Shanmugham, Chinnammal, Algappan and Daniel Nadar since Shanmugham and Chinnammal had disputed the appellants title and that during the pendency of the said suit the said Shanmugham and Chinnammal died and by virtue of the appellants being the nearest heirs a decree was passed on 18.8.1972 in the said suit against the surviving defendants therein and that the appellants took delivery of the property through Court pursuant to the said decree and that by virtue of a family arrangement and partition as between the first appellant and appellant Nos. 3 and 4, appellant Nos. 1 and 2 became entitled to the suit. A Schedule property and that in a portion thereof measuring 10 feet X 15 feet one Muniswami trespassed and put up a thatched structure thereon and the said Muniswami had been residing in the said hut after trespass which had been done about two years prior to the present suit and that the property trespassed has been described as B Schedule property.

3. On these and among other allegations, the appellant Nos. 1 and 2 prayed for the aforesaid relief.

4. Ganesan and Munuswami who were arrayed as defendant Nos. 1 and 2 filed a written statement contending that the suit property had not been described properly and that Munian, the grandfather of the first appellant had two wives, namely, Yengachari Muniammal and Manali Muniammal and that the said Munian did not have three wives and that the first appellant s father s mother was not one of the wives of Munian as she was not married to him and that she was only a concubine and that Kannan the father of the appellant was not a legitimate son and, therefore, he had no manner, right, title interest or possession of the suit properties at any time and that Munian, the grandfather of the first appellant was in exclusive possession of the suit properties and on his death his two widows succeeded as his only heirs and as per the family arrangement as between them the suit properties was allotted to Yengachari Muniammal and that she was in possession and enjoyment in her own right as full owner and that the appellants and/or their father had no right, title or interest in the suit properties and that the said Muniammal had dealt with the property as absolute owner thereof and had registered settlement deed dated 1.8.1961 in favour of her brother s daughter Pavalakodi Ammal and that she had been in possession and enjoyment as full owner from the date of settlement and that the said Pavalakodi Ammal had executed a gift deed in favour of the first respondent herein of which Ganesan (D-1) was a trustee and that he had been put in possession of the suit property on the

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2004 Supreme(SC) 321

IMPORTANT POINTWhere findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

Cases Referred (1)

IMPORTANT POINT
Where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.