9911796707
TMI Blog2004 (3) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 reappreciation of evidence merely on the ground that another view was possible. We, therefore, hold that the High Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule 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. On these and among other allegations, the appellant Nos. 1 and 2 prayed for the aforesaid relief. 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited 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 learned Subordinate Judge allowd the appeal and thereby set aside the judgment passed by the learned District Munsif. 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 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. The learned single Judge of the Madras High Court (S.T. Ramalinga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned Subordinate Judge and restored the judgment passed by the learned Munsif. This Court granted leave on 15.03.1999. We heard Mr. V. Prabhakar, learned counsel appearing for the appellants. Though 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 : 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 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. 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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. Clause 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. The appeal on any other substantial question of law not formulated by it if it is satisfied that the case invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession 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. In our 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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