& Ors Vs. Sri Venugopalaswamy B. Koil & Ors  Insc 169 (16 March 2004)
C. Lahoti & Dr. Ar. Lakshmanan Dr. Ar. Lakshmanan, J.
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.
2147 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.
brief history of the case is as follows:- The appellant Nos. 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 Southand 43 feet East West in Survey No. 46/2, 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 on
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
18.08.1972 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 partition as between the
first appellant and appellant Nos. 3 and 4, appellant Nos. 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.
these and among other allegations, the appellant Nos. 1 and 2 prayed for the
and Munuswami who were arrayed as defendant Nos. 1 and 2 filed a written
statement contending that the suit property had not been described properly 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 wasnot 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 of the first appellant was in
exclusive possession of the suit properties and on 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.
learned District Munsif, Poonamallee, 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.
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
these findings, the learned Subordinate Judge allowd the appeal and thereby set
aside the judgment passed by the learned District Munsif.
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 08.10.1985, 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.
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." 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:-
Whether Murivi, mother of Kannan, was the legally wedded wife of one Munian and
whether her marriage with Munian is valid under law?
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?
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?
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?
what reliefs the appellants/defendants are entitled?"
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 and that the suit properties belong to Yengachari Muniammal
who settled the same in favour of Pavalakodi who in 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 on a re- 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.
Court granted leave on 15.03.1999.
heard Mr. V. Prabhakar, learned counsel appearing for the appellants.
all the respondents appeared before the High Court did not chose 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.
They are :
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 the 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.
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.
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.
High Court hearing a second appeal under Section 100 C.P.C. could not make a roving
enquiry into the facts by examining the evidence afresh to upset the findings
of fact rendered by the first appellate Court.
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.
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.
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 [(1997) 5 SCC 438].
100 of the C.P.C. reads thus:-
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
appeal may lie under this section from an appellate decree passed ex parte.
an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
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:
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." 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 this 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.
5 of Section 100 C.P.C. says 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 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.
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 record the reasons for formulating the other substantial questions of law.
have perused the entire 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
the High Court should be satisfied that the case involved a substantial
question of law and not mere question of law;
for permitting the plea to be raised should also be recorded;
has a duty to formulate the substantial question of law and to put the opposite
party on notice and give fair and proper opportunity to meet the point;
absence thereof, hearing of the second appeal would be illegal.
Court further held as follows:
would only add that
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
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.
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.
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".
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 any 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." 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.
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.
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.
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 existence of more than one wife for Munian
the ancestor of the appellants were compelled to give details of the wives of Munain
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 and 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 not 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.
opinion, the High Court has erred in holding that the appellants have failed to
establish 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
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.
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 reappreciation
of evidence merely on the ground that another view was possible.
therefore, hold that the High Court has exceeded its jurisdiction in
interfering with the findings of the final court of fact.
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.