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TMI Blog2004 (3) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Ext.B1 was allotted. The owner kept the D Schedule items which is the disputed property to himself. 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.A1 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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. 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 unnecessary having regard to the fact that the identity of the properties covered by the various documents was not very much in dispute. However, the High Court purported to go into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 sine qua non for exercise of the jurisdiction under the provisions of Section 100 C.P.C. 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough 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. In Ambukutti Vaidier v. Kannoth Koottambath Kelan [AIR 1933 Madras 460], the case of Secretay of State v. Tripurna Sundarammal and Anr. [ AIR 1926 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. In Kaluvaroya Pillai Ors. v. Ganesa Pandithan Ors. [AIR 1969 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the words the decree is reversed in appeal . The Court can remand the case even when the suit has not been disposed of on a preliminary point. Court has held that this power ought not to be lightly exercised by the Appellate Court. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. 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 43/95 that counsel appearing for both sides have conceded that the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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