Vs. Backiam & Anr  Insc 909 (11 September 2007)
Mathur & Markandey Katju
APPEAL NO.3713 OF 2001 Markandey Katju, J.
This appeal has been filed against the impugned judgment of the Madras High
Court dated 31.1.2000 in Second Appeal No.1927 of 1999.
have heard learned counsel for the parties and perused the record.
plaintiff-appellant Krishnan filed a suit for declaration and injunction
against the respondent-defendant alleging that the property in dispute had been
earlier mortgaged to him on 30.9.1988 and then sold to him by Ramayee (alias Lakshmi)
by registered sale deed dated 25.9.1989 which was also rectified by another
registered sale deed dated 10.9.1990. It was alleged in the suit that an
attempt was being made to dispossess the plaintiff and hence injunction may be
granted in his favour.
defendant filed a written statement in the suit in which it was contended that Ramayee
had neither executed the registered mortgage deed dated 30.9.1988, nor the registered
sale deed dated 25.9.1989, nor the rectification deed dated 10.9.1990. It was
alleged in the written statement that on the request of the owner of the land, Ramayee,
the defendant is assisting her in cultivating the said property under her
instructions and plaintiff has no right over the property. It was alleged by
the defendant- respondent that the mortgage deed dated 30.9.1988, sale deed
dated 25.9.1989 and the rectification deed dated 10.9.1990 alleged to have been
executed by Ramayee, are in fact forged documents.
trial court dismissed the suit, against which the plaintiff-appellant filed a
first appeal in the court of subordinate Judge, Sivaganga, which was allowed by
the judgment dated 13.4.1999. In this judgment the First Appellate Court held :
appears from the evidences of the plaintiff's witnesses that Lakshmi and Ramayee
are one and the same persons. Once the plaintiff proves his case through his
witnesses, the burden of proof shifts to the defendant. It is for the defendant
to prove that Exhibit-A4 sale deed is a forged document or a created one. The
law does not require attestation of sale deed as a compulsory one. Section 54
and 59 of Transfer of Properties do not speak about compulsory attestation.
When law does not require compulsory attestation of a document, such unattested
document may be proved as per the provisions of Indian Evidence Act. Section 68
of Indian Evidence Act has no application for sale deed. Section 68 of the
Indian Evidence Act is applicable only to the cases where the documents are
required to be attested in law."
Thus, although the mortgage deed dated 30.9.1988, the sale deed dated 25.9.1989
and the rectification deed dated 10.9.1990 are alleged to have been executed by
Lakshmi, it has been found by the First Appellant Court that Lakshmi and Ramayee
are one and the same person. Since admittedly Ramayee was the owner of the
property in dispute, the sale deed dated 25.9.1989 alleged to have been
executed by Lakshmi, Exhibit-A4, was in fact executed by Ramayee, since Lakshmi
and Ramayee are the same person. Hence because of the sale deed, title to the
property passed to the plaintiff-appellant.
First Appellate Court also held that the burden of proving that the sale deed
Exhibit-A4 was a forged document on the defendant but he did not discharge his
burden. It was further held that the sale deed was proved by PW3 as well as by
PW1. The First Appellate Court also held that the plaintiff is in possession of
the property in dispute and the sale deed dated 25.9.1989 was valid.
Against the judgment of the First Appellate Court the defendant- respondent
filed a second appeal before the High Court which has been allowed. This appeal
by special leave has been filed against the said judgment of the High Court
perusal of the judgment of the High Court shows that the High Court formulated
the following three questions as substantial questions of law :
Whether the Lower Appellate Court has not committed an error of law in placing
the burden of proof upon the second appellant about the execution and
registration of documents under Exx.A-3 to A-5?
Whether the Lower Appellate Court has not committed an error of law in
decreeing the suit when the respondent/plaintiff has failed to prove that the
documents under Exx.A-3 to A-5 were executed and registered by the second
Whether the Lower Appellate Court has not committed an error of law in holding
that the respondent is in possession and enjoyment of the suit property in the
absence of any materials on record?
Under the amended Section 100 CPC the High Court has to frame substantial
questions of law and can decide the second appeal only on those questions
framed. A perusal of the questions framed shows that no question of law was
framed as to whether the finding of fact of the First Appellate Court that Lakshmi
and Ramayee are one and the same person, is based on no evidence or is
may be mentioned that the First Appellate Court under Section 96 CPC is the
last court of facts. The High Court in second appeal under Section 100 CPC
cannot interfere with the findings of fact recorded by the First Appellate
Court under Section 96 CPC. No doubt the findings of fact of the First
Appellate Court can be challenged in second appeal on the ground that the said
findings are based on no evidence or are perverse, but even in that case a
question of law has to be formulated and framed by the High Court to that
effect. In the present case no question was framed by the High Court as to
whether the finding of the First Appellate Court that Ramayee and Lakshmi are
one and the same person, is a finding based on no evidence or is perverse.
Hence the findings of the First Appellate Court that Ramayee and Lakshmi are
one and the same person, could not have been interfered with by the High Court.
perusal of the judgment of the High Court shows that the High Court has
practically acted as a First Appellate Court and has re-appreciated the
findings of fact of the learned Subordinate Judge which it could not validly do
in exercise of its jurisdiction under Section 100 CPC.
the circumstances, we set aside the impugned judgment of the High Court and
restore the judgment of the First Appellate Court dated 13.4.1999.
The Appeal is allowed. There is no order as to costs.