(SUPREME COURT OF INDIA)
Thiagarajan and Others
Vs
Sri Venugopalaswamay B. Koil & Others
HON'BLE JUSTICE R. C.
LAHOTI AND HON'BLE JUSTICE A. S. LAKSHMANAN
16/03/2004
Civil Appeal No. 1553 of 1999
JUDGMENT
The Order of
the Court is as follows
Hon'ble Justice Dr. AR. Lakshmanan
The above appeal was filed by the plaintiffs against the final judgment and
order dated 28.07.1998 passed by the High Court of Judicature at Madras in S.A.
No. 2141 of 1985 allowing the same and reversing the judgment dated 14.09.1984
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 No. 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 South and 43 feet East West in
Survey of 48/2, 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 of 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 petition as between the first appellant and appellant
Nos. 3 and 4, appellant No. 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
property 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 for the first
appellant was in exclusive possession of the suit properties and one 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 01.08.1961 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 date of the gift deed as trustee of the first respondent
herein and that Muniammal had also joined the execution of the gift deed by way
of abundant caution and that Ganesan had allowed Muniswami (D-2) to occupy the
hut as a tenant and on these among other allegations prayed for dismissal of
the suit.
5. The learned District Munsif, Pooramallee, after framing the necessary
issues, tried the same and held that Yengachari Muniammal succeeded to the
property on the death of Munian and a limited right got enlarged by virtue of
the Hindu Succession Act, 1956 and, therefore, the
settlement deed executed by her in favour of Pavalakodi Ammal was valid and the
gift deed by Pavalakodi Ammal in favour of the first respondent was also valid
and that the suit properties had not been in possession of the appellants.
6. The appellants being aggrieved by the dismissal of the suit preferred A.S.
No. 21 of 1983 on the file of the Subordinate Judge, Tiruvallur 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 documents 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.
He also held that the alleged family arrangement pleaded by virtue of which the
suit properties was said to be allotted to Yengachari Muniammal had also not
been proved and that the appellants cannot be non-suited and that the first
respondent cannot claim that it had acquired title by adverse possession and
that the appellant had established that they are entitled to 3/4th share which
Kannan, the father of the first appellant was entitled to on the death of
Munian and that the respondents herein were entitled to the remaining 1/4th
share which Yengachari Muniammal was entitled to and that the appellants are
entitled to possession to B. Schedule property. On these findings, the leaned
Subordinate Judge allowed the appeal and thereby set aside the judgment passed
by the learned District Munsif.
7.Aggrieved by the appeal being allowed, the respondents herein preferred a
Second Appeal on the file of the High Court at Madras. In the memorandum of
grounds of second appeal dated 8.10.1985, the respondents herein set forth the
grounds as well as raised substantial questions of law which according to them
arose for consideration in the Second Appeal. We have perused the copy of the
memorandum of grounds of Second appeal filed before the High Court, Madras
filed and marked as Annexure P-3 herein and also the second appeal records.
8. The learned single Judge of the Madras High Court (S.T. Ramalingam, J.) at
the time of admission of the second appeal formulated the following substantial
question of law:-
"Whether the respective shares of late Munian were correctly determined in
accordance with the principles of Hindu Law and the Hindu Succession Act."
9. However, another learned single Judge - S.M. Sidickk, J. who finally heard
the second appeal framed a fresh set of substantial questions of law for
consideration after hearing the arguments advanced on both sides and in the
course of rendering the judgment:-
(1) Whether Murivi, mother of Kannan, was the legally wedded wife of one Munian
and whether her marriage with Munian is valid under law?
(2) Whether Kannan (father of plaintiffs 1, 3, and 4 and husband of 2nd
plaintiff) was born to Munian and Murivi out of their lawful wedlock?
(3) Whether the plaintiffs became entitled to the plaint A schedule property by
virtue of survivorship and inheritance on the death of Kannan, who is the
father of plaintiffs 1, 3, and 4 and husband of the 2nd plaintiff as alleged in
para 3 of the plaint?
(4) Whether the Respondents/plaintiffs are entitled to the reliefs of
declaration and permanent injunction in respect of plaint A schedule property
and for delivery of vacant possession of the plaint B schedule property as
prayed for in the plaint?
(5) To what reliefs the appellants/defendants are entitled?"
10. The learned single Judge rendered findings on point Nos. 1 to 5 and held
that Muruvi, mother of Kannan and grandmother of first appellant was not the
legally wedded wife of Munian and that since Muruvi was not the legally wedded
wife, Kannan cannot be said to be borne out a lawful marriage and that the
source of title of Kannan to the property had not been traced and, therefore,
the appellants were not entitled to the suit property by virtue of survivorship
or inheritance on the death of Kannan and that the appellants are, therefore,
not entitled to the reliefs claimed that the suit properties belong to
Yengachari Muniammal who settled the same in favour of Pavalakodi who is turn
gifted it to the first respondent herein and that the appellants cannot succeed
by picking holes in the defence taken and that the appellants have to establish
their title independently and thus allowed the second appeal one are
appreciation of portions of evidence adduced and thereby set aside the judgment
passed by the learned Subordinate Judge and restored the judgment passed by the
learned Munsif.
11. This Court granted leave on 15.03.1999.
12. We heard Mr. V. Prabhakar, learned counsel appearing for the appellants.
Though all the respondents appeared before the High Court did not close to
enter appearance in this Court, in spite of the due service of notice on all of
them. Mr. V. Prabhakar took us through the entire pleadings the judgments
rendered by all the three courts. Mr. Prabhakar advanced arguments on four
contentions. There are :
1. The learned single Judge of the High Court who heard the second appeal
framed a fresh set of substantial questions of law for consideration after
hearing the arguments advanced on both sides and in the course of rendering of
judgment. According to him, the High Court could not frame questions of law at
the time of rendering the judgment in the second appeal especially when such a
procedure is not contemplated under Section 100 of the Civil Procedure Code.
2. The learned single Judge who disposed of the second appeal has considered
the substantial questions of law framed at the time of hearing and rendering
the judgment and has failed to consider the substantial question of law framed
by another learned single Judge at the time of admission.
3. It was submitted that the opposite party that is the appellants
herein/plaintiffs was not put on notice and be given a fair and proper
opportunity when the High Court seeks to exercise jurisdiction under the
proviso to Section 100 of C.P.C. by formulating questions of law at a later
stage. It was further contended that the High Court while disposing of the
second appeal and rendering the judgment has not recorded any reasons for
formulating a fresh set of questions of law by ignoring the questions already
formulated in the memorandum of the grounds of second appeal which thus already
formulated by the Court, if any.
4. The High Court hearing a second appeal under Section 100 C.P.C. could not
make a roving equity into the facts by examining the evidence afresh to upset
the findings of fact rendered by the first appellate Court. It was further
submitted that the High Court has looked into only portions of the evidence and
not the entire evidence while seeking to disturb the factual findings rendered
by the first appellate Court.
13. According to Mr. Prabhakar, the questions that were framed under Section
100 C.P.C. could not be mere questions of law but substantial questions of law
as contemplated under the said provision/
14. In support of the above contention Nos. 1 to 3 Mr. Prabhakar strongly
placed reliance in the case of Kshitish Chandra Purkait vs. Santosh Kumar
Purkait and Others [ 1].
Section 100 of the C.P.C. reads thus :-
"(1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any Court subordinate to the High
Court, if the High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate decree passed
ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is
involved in any case, if shall formulate that the question.
(5) 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:
Provided that nothing in this sub-section shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded the appeal
on any other substantial question of law, not formulated by it, if it is
satisfied that the case involves such question." *
15. In the instant case, the memorandum of appeal filed by the appellant
have precisely stated the substantial question of law involved in the appeal
among other grounds. The High Court was satisfied that a substantial question
of law was involved in his case and formulated the said substantial question at
the time of admission of the appeal on 26.12.1985 which has been extracted in
paragraphs above. #
16. Clause 5 of Section 100 C.P.C. says that the appeal shall be heard on the
question no formulated and the respondent shall at the hearing of the appeal be
allowed to argue that the case does not involve such a question. The proviso
states that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded.
17. The appeal on any other substantial question of law not formulated by it if
it is satisfied that the case involves such question. In the instant case, the
High Court at the time of final hearing formulated five more questions of law
as extracted above after hearing the counsel for both sides have miserably
failed to recovered the reasons for formulating the other substantial questions
of law.
18. We have perused the entitled judgment. 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 o law and to put the opposite party on notice and give fair and proper
opportunity to meet the point, d) in absence therefore, hearing of the second
appeal would be illegal.
19. This Court further held as follows:
"We would only add that (a) it is the duty cast upon the High Court to
formulate the substantial question of law involved in the case even at the
initial stage; and (b) that in (exceptional) cases, at a later point of time, when
the Court exercises its jurisdiction under the proviso to sub-section (5) of
Section 100 CPC in formulating the substantial question of law, the opposite
party should be put on notice thereon and should be given a fair or proper
opportunity to meet the point. Proceeding to hear the appeal without
formulating the substantial question of law involved in the appeal is illegal
and is an abnegation or abdication of the duty cast on court; and even after
the formulation of the substantial question of law, if a fair or proper
opportunity is not afforded to the opposite side, it will amount to denial of
natural justice. The above parameters within which the High Court has to
exercise its jurisdiction under Section 100 CPC should always be borne in mind.
We are sorry to state that the above aspects are seldom borne in mind in many
cases and second appeals are entertained and/or disposed of, without conforming
to the above discipline.
In the light of the legal position stated above, we are of the view that the
High Court acted illegally and in excess of its jurisdiction in entertaining
the new plea, as it did, and consequently in allowing the second appeal. Even
according to the High Court, the point urged on behalf of the appellant was
only a 'legal plea' though no specific plea was taken or no precise issues were
framed in that behalf. The High Court failed to bear in mind that it is not
every question of law that could be permitted to be raised in second appeal.
The parameters within which a new legal plea could be permitted to be raised,
are specifically stated in sub-section (5) of Section 100 CPC. Under the
proviso, the Court should be "satisfied" that the case involves a
"substantial question of law" and not a mere "question of law".
The reason for permitting the substantial question of law to be raised, should
be 'recorded' by the Court. It is implicit therefrom, that on compliance of the
above, the opposite party should be afforded a fair or proper opportunity to
meet the same. It is not only legal plea that could be raised at the stage of
second appeal. It should be a substantial question of law. The reasons for
permitting the plea to be raised should also be recorded. Thereafter, the
opposite party should be given a fair or proper opportunity to meet the same.
In the present case, as the extracts from the judgment quoted hereinabove would
show, the High Court has totally ignored the mandatory provisions of Section
100 CPC. The High Court proceeded to entertain the new plea and rendered its
decision without following the mandatory provisions of Section 100 CPC. On this
short ground, we are of the view that the judgment and decree of the High Court
dated 30-11-1982 are illegal and in excess of its jurisdiction and so
unsustainable and deserve to be set aside. We hereby do so. The appeal is
allowed with costs, including advocates' fee which we estimate at Rs.
10,000." *
20. The existence of a substantial question of law is thus the sine qua non
for the exercise of the jurisdiction under the amended provisions of Section
100 CPC.
21. The above judgment squarely applies to the facts and circumstances of the
instant case. Thus, we answer the legal contention Nos. 1 to 3 in favour of the
appellants/plaintiffs and against the respondents/defendants. #
Contention No. 4
22. It was submitted by Mr. Prabhakar, learned counsel for the appellants that
the High Court hearing a second appeal under Section 100 CPC should not make a
roving enquiry into the facts by examining the portion of evidence afresh to
upset the well considered findings of fact rendered by the first appellate
court. Our attention was drawn to the various passages from the judgment of the
High Court and in comparison with the judgment rendered by the first appellate
Court. On a reading of both the judgments, we are unable to convince
ourselves that the High Court has looked into only portions of evidence and not
the entire evidence while seeking to disturb the factual findings rendered by
the first appellate Court. 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. #
23. 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 evidence 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 that 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
no 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. #
29. In our opinion, the High Court has erred in holding that the appellants
have failed to established 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. #
25. In the present case, the lower appellate Court fairly appreciated the
evidence and arrived at a conclusion that the appellants suit was to be decreed
and that the appellants are entitled to the relief as prayed for. Even assuming
that another view is possible on a reappreciation of the same evidence, that
should not have been done by the High Court as it cannot be said that the view
taken by the first appellate court was based on no material. #
26. To say the least the approach of the High Court was not proper. It is
the obligation of the Courts of law to further the clear intentment of the
legislature and not frustrate it by excluding the same. This Court in a catena
of decisions held that 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 re-appreciation of evidence merely on the ground that another view
was possible. #
27. We, therefore, hold that the High Court has exceeded its jurisdiction in
interfering with the findings of the final court of fact.
28. We, therefore, hold that the judgment of the High Court under the
circumstances cannot be sustained and judgment of the lower appellate Court in
A.S. No. 21 of 1983 of the Subordinate Judge. Tiruvallur is restored The appeal
stands allowed. There will be no order as to costs. #