Grandhasala Rep. By Secy. & ANR Vs. N.S.S. Karayogam & ANR.  INSC
2031 (27 November 2008)
SUPREME COURT OF
INDIA RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 6588 OF 2002 RAMAVILASOM
GRANDHASALA REP.BY SECY.&ANR Appellant (s) VERSUS N.S.S. KARAYOGAM &
ANR. Respondent(s) (With office report ) Date: 27/11/2008 This Appeal was
called on for hearing today.
HON'BLE MR. JUSTICE
MARKANDEY KATJU HON'BLE MR. JUSTICE AFTAB ALAM For Appellant(s) Mr. P. Sureshan,
Mr. R. Sathish,Adv.
For Respondent(s) Mr.
TLV Iyer, Sr.Adv.
Mr. Ramesh Babu
UPON hearing counsel
the Court made the following ORDER The appeal is allowed with no order as to
[ Usha Bhardwaj ] [
Indu Satija] Court Master Court Master Signed order is placed on the file. IN
THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6588 OF
2002 Ramavilasom Grandhaqsala rep.by .....Appellants Secy. & Anr.
Karayogam ....Respondents ORDER Heard learned counsel for the parties and
perused the record.
This appeal has been
filed against the impugned judgment of the Kerala High Court dated 1st October,
2001 in Second Appeal No.1155 of 1989- D. The respondent in this appeal filed a
suit alleging himself to be the owner of the property in dispute. It is not
disputed that the original owner of the property was one Velayudhan Pillai
Sivarama Pillai. He executed a gift deed in favour of Yuva Samithi on
19-08-1114 Malayalam Era 1939 A.D. There was a provision in the gift deed
(Exhibit A1) to the effect that if Yuva Samithi becomes defunct the title and
possession of the property covered by the gift deed would revert to the owner.
The Trial Court and
First Appellate Court held that the Yuva Samithi had not become defunct. The
clear finding of fact of the First Appellate Court in its judgment dated 28th
July, 1988, was that there was no evidence to show that the Yuva Samithi had
become defunct and it was still functioning in a different name i.e. United
Sports Club which was attached to Ramavilasom Grandhasala. This is a finding of
fact and could not have ordinarily been interfered with in Second Appeal by the
It is well settled
that the High Court in Second Appeal can interfere with the judgment of the First
Appellate Court only if there is an error of law and not an error of fact.
Ordinarily, the First Appellate Court under Section 96 C.P.C. is the last Court
of facts. However, there is very limited scope for the High Court to interfere
with a finding of fact in a Second Appeal, namely, if the finding of fact was
based on no evidence or is totally perverse.
In this case, the
High Court has interfered with the finding of fact of the First Appellate Court
that the Yuva Samithi and Ramavilasom Grandhasala are different entities. We
are of the opinion that even if the High Court was of the opinion that the
finding of fact of the First Appellate Court on this point was based on no
evidence or was perverse, at the most the High Court could have remitted the
matter to the First Appellate Court for a fresh decision, in accordance with
law, but it could not itself acted as a First Appellate Court under Section 96
of the Civil Procedure Code, which it appears to have done.
It may be mentioned
that the First Appellate Court has based its finding that the Yuva Samithi is
still functioning in a different name on the basis of Exhibits B-1 to B-7. In
our opinion, it was incumbent upon the High Court, if it wanted to interfere
with this finding to examine Exhibits B-1 to B-7 but it does not seem to have
done so. Hence, we direct the High Court to reconsider the question whether the
finding of the First Appellate Court that the Yuva Samithi has not become
defunct and it is functioning in a different
name is based on no
evidence or is perverse. The High Court shall specifically deal with Exhibits
B-1 to B-7 and other relevant material in support of the said finding of the
First Appellate Court. All questions of law are left open to the High Court.
The impugned judgment of the High Court is set aside and the case is remanded
to the High Court to give a fresh decision in accordance with law and in the
light of the observations made above. We hope and trust that the High Court
will decide the appeal expeditiously, since the matter has been pending for
If the High Court
finds that the findings of the First Appellate Court that the Yuva Samithi is
still functioning is based on no evidence or is perverse then it should remand
the matter to the First Appellate Court for a reconsideration of this question.
The appeal is allowed.
There shall be no
order as to costs.
[MARKANDEY KATJU ]