(SUPREME COURT OF INDIA)
Narayanan
Vs
Kumaran and others
HON'BLE JUSTICE R. C. LAHOTI AND HON'BLE JUSTICE A. S. LAKSHMANAN
16/03/2004
Civil Appeal Nos. 820-821 of 1999
JUDGMENT
DR. AR.
LAKSHMANAN, J.
- These two appeals were filed against the final judgment/ order dated 6.3.1997
passed by the High Court of Kerala in C.M.A. Nos. 208/94 and 43/95 restoring
the common judgment and decree of the Trial Court having set aside the remand
order of the lower Appellate Court. The short facts are.
2. The property in dispute in this appeal belong to one Kunjan who executed a
deed of settlement setting his properties including the disputed property on
his daughters. One of the daughters Sumathi was minor to whom the the C
Schedule to the EXt. B1 was allotted. The owner kept the D Schedule items which
is the disputed property to himself.
3. The 1st respondent Kumaran is a close relative of Kunjan and was very close
to the family and treated as member of Kunjan's family till the dispute arose
in 1986. The property settled on Sumathi of which possession continued to be
with Kunjan in terms of Ext. B1. In 1976 Kumaran executed Ext. A-1 and some
properties were transferred to the 1st respondent, Kumaran. The property settled
on Sumathi of which possession continued to be with Kunjan in terms of Ext. B1.
In 1976 Kumaran executed Ext. A1 and some properties were transferred to the
1st respondent Kumaran. It is clearly recited in the document that only
property covered by the C Schedule to Ext. B1 which was allotted to Sumathi was
the subject of transfer. This had an extent of 1.51 acres. The D Schedule
property was not included in Ext. A1. However, by fraudulently and with the
connivance of the 3rd respondent, the 4th defendant, the schedule to the
document was also drafted as to bring the property owned and possessed by
Kunjan under D. Schedule to Ext. B1 as also 56 cents of lands not covered
thereby. Despite this mistake described in the document, Kunjan continued to be
in possession of the disputed property and its accredition while the 1st
respondent, Kumaran was also closely moving with the family and there was no
action from Kunjan.
4. Kunjan accordingly sold the 50 cents covered by the D Schedule Ext. B1 as
also the accredition to the appellant by the deed of sale Ext. B4 on 5.3.1986.
The 1st respondent was displeased at the development and he filed a suit OS No.
125/86 for a permanent injunction restraining them from entering into the
disputed property. Kunjan became aware of the mistake in Schedule Ext. A1 only
when notice of this suit was received whereupon himself and the appellant filed
a suit O.S. 146/86 for injunction against the interference with his possession
of the 50 cents of disputed property. The plaintiff pleaded that the transfer
to the 1st respondent was only 1.51 acre and that the disputed property was not
comprised or intended to be transferred or to be in possession of the vendee.
They pleaded that fraud was played by Pankajakshy and her husband in the
incorrect preparation of the Schedule to the document.
5. This recital was very clear that only the property allotted to Sumathi, C.
Schedule to Ext. B1 was transferred. The trial court by its judgment dated
31.7.1990 held that the entirety of the C and D Schedules to Ext. B1 has been
transferred. It also held that the suit filed by the appellant and Kunjan in OS
No. 146/86 was barred by limitation. The trial court also did not project the
plea of fraud set up by Kunjan and the appellant. According, OS 125/86 was
decreed and OS 146/86 was dismissed.
6. Pending suit Kunjan died. The appellant was the other person interested,
therefore, filed an appeal and the other parties in the suit filed appeals
which was disposed of by a common judgment dated 24.6.1994.
7. The District Court went into the evidence very elaborately and came to the
conclusion on appreciation of the evidence that what was intended to be
transferred was only the 1.5 acres comprised in C Schedule to Ext. B1 and that
the D Schedule property was not conveyed under Ext. B1. Accordingly, he held
that the 1st respondent did not have title of the possession either over the
Schedule or the accredition of 56 cents which lies in between the C & D
Schedules properties. He also held that the mis-description in Ext. A1 sale
deed was apparently due to the deceptive practice of the respondent and PW-4,
was also a party. The District Court on the basis of the materials placed
before him found that PW-4 was a person who habitually indulges in such
mal-practice. The District Court further held that the 1st respondent did not
go into the possession of the D Schedule and the accredition and that Kunjan
came aware of the mistake only when notice of OS 125/86 was received by him.
The appeals had, therefore, to be allowed. Since the Commissioner's plan
prepared in the suit did not correctly identify the 1.51 acres which the court
felt was necessary to resolve future dispute, the learned District Court
allowed the appeals and remitted the matter back to the trial court for
preparing a proper plan for identification of the properties and pass a decree
accordingly.
8. The 1st respondent challenged this order in Civil Misc. Appeals before the
High Court filed under Order 43 Rule (1) clause (u) of the Code of Civil Procedure.
Both parties agreed that the remand was necessary having regard to the fact
that the identify of the properties covered by the various documents was not
very much in dispute.
9. However, the High Court purported to go into the question of facts and allowed
the appeals setting aside the judgment of the District Court and restoring that
of the Munsiff Court.
10. Being aggrieved, the appellant preferred the Special Leave Petitions/
Appeals.
11. We heard Mr. T.L.V. Iyer, senior advocate for appellant and Mr. P.
Krishnamurthy, senior advocate for respondent. Mr. Iyer raised the following
contentions:--
1. The High Court has gone into excruciating of facts and has appreciated
evidence which is not warranted under Section 100 of the C.P.C. and is beyond its
jurisdiction. No question of law much less any substantial question of law
arose in the High Court.
2. The High Court has not formulated any question of law for decision nor has
it identified any such question of law anywhere in the judgment. The interference
with the judgment of the District Judge is purely on question of facts.
3. The findings by the High Court are based on appreciation of evidence and are
conclusions of facts. No substantial question of law arise therefrom. The High
Court has grossly erred in verifying the facts.
4. The appeal under order 43 Rule (1) clause (u) should be heard only on the
ground enumerated under Section, 100. The appellant under order 43 Rule (1)
clause (u) is not entitled to agitate question of facts as in a first appeal.
12. Mr. P. Krishnamurthy, learned counsel for the respondents submitted the
order passed by the High Court in the appeals does not call for any
interference. He argued that Section 100 is confined to second appeals against
decrees and, therefore, cannot be invoked in appeal against an order.
13. We have been taken through the pleadings and the judgments rendered by all
the three courts. Our attention was also drawn to the records/ documents.
14. The following questions of law arise for consideration by this Court :-
1. Whether the High Court was justified in going into excruciating details on
facts in a second appeal?
2. Has not the High Court exceeded its jurisdiction under Section 100 of the
C.P.C. by reversing a well-considered Judgment of the First Appellate Court on
facts especially when no question of law much less any substantial question of
law arose for consideration?
15. The submissions made by the Mr. T.L.V. Iyer is well founded and merit
acceptance. A close scrutiny of the order passed by the High Court clearly goes
to show that the High Court has gone into minute details of facts and has
appreciated evidence which is not warranted under Section 100 of C.P.C. and is
beyond its jurisdiction. No question of law much less any substantial question
of law arose in the High Court. The jurisdiction of the High Court is now
confined to entertain only such appeal as involving substantial question of law
specifically set out in the memoranda of appeal and formulated by the High
Court. The High Court of Kerala in the instant case has not framed any
substantial question of law as required by Section 100 C.P.C. and has committed
a patent error in disposing of the Civil Misc. Appeal. The existence of a
substantial question of law is thus the sina qua non for exercise of the
jurisdiction under the provisions of Section 100 C.P.C.
16. Mr. T.L.V. Iyer, learned senior counsel for the appellant raised a
controversy which related to the scope and nature of hearing an appeal under
order 43 Rule (1) clause (u) of CPC. It was contended by Mr. Iyer that though
it is filed as Civil Misc. Appeal against the order of remand, it is
necessarily a second appeal and, therefore, can be competent only on the ground
mentioned in Section 100. It is further argued that the appellants in Civil
Misc. Appeals against question of facts and the findings of the lower court
even though found to be erroneous are binding in such an appeal.
17. Mr. Krishnamurthy, learned senior counsel for the respondent cited no
contrary law. He, however, reiterated that Section 100 is confined to second
appeals against decrees and, therefore, cannot be invoked in an appeal against
an order. It is, of course, true that Section 100 in terms applies only to
appeals second to decrees, but the contention of Mr. Krishnamurthy cannot be
accepted on account of language of order 43 Rule (1) clause (u). It reads as
follows:
"Order 43 Rule (1). Appeals from orders.
18. An appeal shall lie from the following orders under the provisions of
Section 104, namely:--
(a) ....
xxxx
xxxx
(t) .....
(u) an order under rule 23 (or rule 23A) of Order XLI remanding a case, where
an appeal would lie from the decree of the Appellate Court." *
19. It is obvious from the above rule that an appeal will lie from an order
of remand only in those cases in which an appeal would lie against the decree
if the Appellate Court instead of making an order of remand had passed a decree
on the strength of the adjudication on which the order of remand was passed.
The test is whether in the circumstances an appeal would lie if the order of
remand where it is to be treated as a decree and not a mere order. In these
circumstances, it is quite safe to adopt that appeal under order 43 Rule (1)
clause (u) should be heard only on the ground enumerated in Section 100. We
therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant
under an appeal under order 43 Rule (1) clause (u) is not entitled to agitate
questions of facts. We, therefore, hold that in an appeal against an order of
remand under this clause, the High Court can and should confine itself to such
facts, conclusions and decisions which have a bearing on the order of remand
and cannot canvass all the findings of facts arrived at by the Lower Appellate
Court. #
20. The High Court of Rajasthan in Abdul Gani and Anr. vs. Devi Lal and Anr.
1960 AIR(Rajasthan) 77) held that the appeal under this clause should be
heard only on the grounds enumerated in Section 100 and not on question of
facts as in the case of first appeal.
21. In Seshammal & others vs. Kuppanaiyyangar and Anr. 1926
AIR(Madras) 475), this Court held as under:
"Although the civil appeal has taken the form of a civil miscellaneous
appeal against an order of remand the Subordinate Judge is a final Judge of
fact and the only grounds available to the appellant to attack the judgment are
those which would be available to him in second appeal." *
22. In Ambukutti Vaidier vs. Kannoth Koottambath Kelan 1933 AIR(Madras)
460), the case of Secretary of State vs. Tripura Sundarammal and Anr.
1926 AIR(Madras) 474) was followed. The Court held that civil
miscellaneous appeals stand on the same footing as second appeals with regard
to their being arguably only question of law.
23. In Kaluvaroya Pillai and others vs. Ganesa Pandithan & others
1969 AIR(Madras) 148), the Court held as under:
"Though this is a case in which the lower appellate Court remanded the
suit. It appears to me that the totality of the suit has been remanded to the
trial Court for reconsideration in view of certain irregularities inhered
therein. As a matter of fact the lower appellate court set aside the judgment
and decree of the trial Court in full. Though it gave a liberty to the
respondents to have a retrial in the trial Court, presumably, in the interests
of justice, it appears to me that the lower appellate Court has substituted its
own judgment to that of the trial Court and in the peculiar circumstances of
the present case it is not open to the appellants in this civil miscellaneous
appeal to canvass the entire judgment and decree of the lower appellate Court
by filing an appeal under Order XLIII, Rule 1(u), C.P.C. I shall presently
advert to the right of an appellant in a civil miscellaneous appeal to canvass
the correctness of the findings other than those relating to the order of
remand in such an appeal. But in so far as this appeal is concerned, as there
has been a substitution of the judgment and decree of the appellate Court to
that of the trial Court, the only remedy available to the appellants in this
case was to file a second appeal, if appeal under Order XLIII, Rule 1 (u),
C.P.C. Thus in the peculiar circumstances and on the facts of this case, it is
not open to the appellants to canvass the other findings of the lower appellate
Court." *
24. It is also useful to reproduce order 41 Rule 23 of CPC which reads thus:
"Where the Court from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand the case, and may
further direct what issue or issues shall be tried in the case so remanded, and
shall send a copy of its judgment and order to the Court from whose decree the
appeal is preferred, with directions to re-admit the suit under its original
number in the register of civil suits, and proceed to determine the suit; and
the evidence (if any) recorded during the original trial shall, subject to all
just exceptions, be evidence during the trial after remand." *
25. The High Court of Kerala had adopted an amendment made by the Madras High
Court which reads thus:
(a) After the words 'the decree is reversed in appeal", insert the words,
'or where the Appellate Court in reversing or setting aside the decree under
appeal considers it necessary in the interests of justice to remand the
case", and
(b) Delete the words 'if it thinks fit', occurring after the words 'the
Appellate Court may". *
26. Under the rule as amended in Kerala, Madras by the addition of words 'or
where the Appellate Court in reversing or setting aside the decree under appeal
considers it necessary in the interest of justice to remand the case' after the
words 'the decree is reversal in appeal". The Court can remand the case
even when the suit has not been disposed of an preliminary point. Court has
held that this power ought not to be lightly exercised by the Appellate Court.
27. Learned Counsel appearing on either side took us through the whole of the
judgment/evidence and to elaborate statements on question of facts. As rightly
pointed out by Mr. Iyer that High Court has gone into excruciating details of
facts and has appreciated the evidence which is not warranted in this case. A
perusal of the judgment of the District Court disclosed that there is an
elaborate consideration of the entire evidence oral or documentary in the case
and that the findings thereof are based on appreciation of evidence and are
conclusions of facts. It was pointed out that the High Court has erred in
verifying the recitals in Ext. 1 makes it clear that the property under it was
only the C Schedule to the deed of gift, Ext. B1 allotted to the Sumathi which
was sold. If really the D Schedule retained by Kunjan was also under transfer,
the same should have on the place in the recitals regarding title and in the
body of the document. Absence of such recitals is proof positive that the D
Schedule was not intended to be conveyed.
28. In our view of the Schedule to the document was prepared in excess of
what was intended to be conveyed. It has been fraudulently prepared as rightly
found by the District Court. It is a well established principle that when there
is inconsistency in the body of the document, containing the evidence clause
and the schedule, the former prevails over the latter. As such when the
intention of the parties was clear, the Schedule to the document should not
have been allowed to override the recital clause. #
29. Like wise, the D Schedule was not intended to be conveyed is evident
from the fact that there is no mention of the accredition much less between the
C & D Schedule to EXt. B1. If really the entire property as bulk was being
conveyed certainly the existence of the accredition or an intention to transfer
the same would also have found their place in the document. The respondent has
no case that he has any title to or possession of the said accredition. This
very fact, in our view, cuts the root of the case of the 1st respondent to
title to the disputed property.
#
30. The D Schedule to Ext. B1 could not have been common is very clear from
entire fact. The agreement was that the property gifted to Sumiti would be sold
and the proceeds would be given to Pankajakshy in view of which Pankajakshy
consented to transfer her share in favour of Sumiti. Accordingly, it was only
the share of Sumiti which was C Schedule to Ext. B1 which was sold and
consideration thereunder was Rs. 9,000/-. No consideration for Kumaran's
transfer was admitted to and on the other hand the consideration of Ext. A1 was
received by Pankajakshy and her husband. There is no case for the 1st
respondent that D Schedule to Ext. B1 was also intended to be transferred as
part of the scheme of package.
#
31. Kunjan was in possession of the disputed property. He became aware of it
only when notice of OS 125/86 was received by him. As noted by the District
Court with reference to the evidence in the case, the 1st respondent Kumaran
was moving very closely with Kunjan and his family and was on of the
beneficiaries of Kunjan's magnificence. It is only in 1986 when Kunjan sold the
disputed property to the appellant that he instituted the suit claiming title.
The finding of possession of the 1st respondent is based on the document
acquired after the commencement of the suit. There is no iota of evidence for
the prior period even otherwise any acts on the part of the 1st respondent is
only referable to the close association with Kunjan and his family and is
looking after property of Kunjan. Thus, the case of fraud put forward by the
appellant is amply proved by the facts and circumstances of the case and as
thoroughly discussed by the District Court and the findings of fact arrived at.
We are, therefore, of the opinion that the High Court was not justified in
going into the excruciating details of facts in the second appeal and that the
High Court has exceeded its jurisdiction by reversing a well considered
judgment of the First Appellate Court which is the Final Court of facts
especially when no questions of law much less a substantial question of law
arose for consideration.
32. It is seen from the judgment of the Lower Appellate Court that the matter
was remanded back to the Court below for limited purpose on a proper identification
of the disputed suit property. It is seen from para 3 of the common judgment in
C.M.A. 208/94 and 43/94 that counsel appearing for both sides have conceded
that the lower appellate court was not correct in remanding the matter to the
Trial Court. According to them there was no dispute regarding the identity and
that the identity is clear from the rough sketch appended to the judgment of
the lower appellate court. They submitted that there was no necessity of
remanding the matter to the lower appellate court and the matter can be decided
on merits by the High Court.
33. We are of the opinion that the judgment passed by the High Court in
C.M.A. 208/94 and 43/95 cannot be sustained for the reasons stated supra. We,
therefore, set aside the judgment passed by the High Court and restore the
judgment passed by the District Judge, Thodupuzha in Appeal Nos. 125/86 and
146/86 on his file. However, we delete the directions given by the District
Court in regard to the order of remand and retain and sustain the judgment of
the District Court dated 24.7.1994 in toto. In the result, the appeals filed by
the appellant succeeds and we order no costs. #