Important pointHigh Court will have no jurisdiction in second appeal to interfere with finding of facts recorded by 1st appellate Court after careful consideration of evidence, oral and documentary on record.

Headnote:(i) Civil Procedure Code, 1908—Section 100—Second appeal—High Court can entertain second appeal only if High Court was satisfied that case involved substantial question of law—Mandatory requirement was flouted by High Court and impugned judgment was liable to be set aside.
       Held : At the very outset, we notice that, though the High Court was deciding the second appeal under section 100 of the Code of Civil Procedure, it failed to act in accordance with the requirements of section 100. It is trite law that under section 100 of the CPC a High Court can entertain a second appeal only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (5) stipulates that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The mandatory requirements of this provision of law have been totally flouted by the High Court. The High Court has not indicated in the long judgment as to which was the substantial question of law, if any, considered, nor has it formulated the substantial question of law on which the decision in the second appeal was being given. The High Court has proceeded as if it were deciding a first appeal against a decree in original proceedings. On this ground alone the judgment is liable to be interfered with. (Para 6)
       (ii) Hindu Religious and Charitable Endowment Act—Section 63(a)—Civil suit filed by respondent No.2 that suit property was his private property was dismissed by Civil Court holding that property belonged to “Mela Madam” a religious institution—Appeal before High Court was also dismissed—Son of defendant No.2, i.e. defendant No.1 filed suit for declaration that properties were his ancestral properties and in view of oral partition subsequently registered, he was entitled to ‘B’ schedule properties—Court decreed suit—1st appellate Court reversed the decree and dismissed the suit—High Court in second appeal without formulating any substantial question of law arising in second appeal, allowed the appeal—Appeal contention that question of interpretation of documents placed on record was a substantial question of law—1st appellate Court after elaborate discussion recorded a clear conclusion that property belonged to a religious endowment—High Court had no jurisdiction in second appeal to interfere with findings of facts—Impugned judgment was liable to be set aside. (Paras 11 to 14)

Judgment

Srikrishna, J.—One Ponnu Iyer alias Viruddeswara Sivacharya had purchased large extent of land and properties. One of such properties was Door No. 278, West Car Street, Tirunelveli. In 1960 the second respondent who was Madathipathi of “Meda Madam” and the Kartha of family filed O.A.No. 74/60 before the Deputy Commissioner of the Hindu Religious and Charitable Endowment under section 63(a) of the Hindu Religious and Charitable Endowment Act, to declare the property mentioned above as his personal property and not belonging to a religious institution. This application was rejected by the Deputy Commissioner. An appeal carried by the second respondent to the Commissioner was also rejected. In 1969 the second respondent filed a statutory suit being OS No. 133/69 before the Sub-Judge, Tirunelveli seeking a declaration that the property was his private property. This suit was also dismissed by the Sub-Judge holding that the property belonged to the “Mela Madam” a religious institution. The appeal carried to the High Court vide A.S.No. 640/1971 was also dismissed. The second respondent thereafter continued to maintain records as directed by the concerned authorities and submitted to the jurisdiction of the Hindu Religious and Charitable Endowment Act with respect to all the properties belonging to the Mela Madam.

2. In the year 1978, after the first respondent, attained the age of majority he filed a suit for declaration that the properties described in schedule A, B and C of the plaint were his ancestral properties, and in view of the oral partition which was subsequently registered, he was entitled to B schedule properties. He, therefore, sought a decree for partition of the ancestral properties and a declaration that the ‘B’ schedule properties exclusively belonged to him and sought consequential injunction.

3. This suit was opposed, inter alia, by the Commissioner, Hindu Religious and Charitable Endowment (appellant before us and the 4th defendant in the suit).

4. The appellant contended in the suit that the suit properties were endowed properties and that the character of properties had been affirmatively declared as one belonging to a religious institution. He contended that the second respondent, who had not succeeded in his earlier attempt to grab the property, had now set up the first respondent to commence a second round of litigation for the same purpose.

5. The trial court accepted the contentions of the plaintiff and granted a preliminary decree as sought for in the plaint. The present appellant preferred an appeal against the trial court judgment in O.S. No. 228/78. The first appellate court, the District Judge, Tirunelveli allowed the appeal, and dismissed the suit of the 1st respondent. The first respondent brought second appeal No. S.A.No. 2105 of 1983 before the High Court. The High Court in a lengthy judgment reversed all the findings of facts recorded by the 1st appellate court, set aside the judgment of the first appellate court and decreed the suit. Hence this appeal by special leave.

6. At the very outset, we notice that, though the High Court was deciding the second appeal under section 100 of the Code of Civil Procedure, it failed to act in accordance with the requirements of section 100. It is trite law that under section 100 of the CPC a High Court can entertain a second appeal only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (5) stipulates that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The mandatory requirements of this provision of law have been totally flouted by the High Court. The High Court has not indicated in the long judgment as to which wa

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