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TMI Blog1963 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and has thus contravened the limits prescribed by section 100 of the Code of Civil Procedure, it is not easy to reject their claim for special leave. As early as 1890 in the case of Mussummat Durga Choudhrain v. Jawahir Singh Choudhri, ((1890) L. R. 17 1. A. 122.), the Privy Council emphatically declared that under s.584 of the earlier Code, which corresponds to s.100 of the present Code, there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be; and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in s.100. The appellants' contention in the present appeal is that this warning has been patently disregarded and in allowing the respondent's appeal against them, the second appellate Court has interfered with concurrent findings of fact. That is the sole ground on which leave has been granted to the appellants and on which we propose to allow this appeal. The facts leading to the present appeal are not many and they lie within a very narrow compass. Survey No.440-B situated in Rakatla village originally belonged to one Boya Krishnap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the mortgage decree and the auction sale that followed it. On these pleadings, the trial Court framed two substantive issues. The first issue was whether the appellants were entitled to the suit property and whether they were in possession within 12 years prior to the date of the Suit, and the second issue was whether the court sale set up by the respondent had taken place and was binding on the appellants. Both these issues were answered by the trial judge in favour of the appellants. On the question about the appellants' title, the trial judge placed the burden on the appellants and noticed the fact that the appellants had not produced any sale-deed to evidence the transaction of sale, nor had they produced a patta. He, however, examined the other documentary evidence adduced by appellants and found that the said evidence satisfactorily proved both their title and their possession within 12 years before the date of the suit. Exhibit A-8 is certified copy of the Changes Register of Rakatla village. This document showed the names of Boya Krishnappa and Venkataramanappa, the father of the appellants as the Pattadars. After the death of Venkataramanappa a circle was put round his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of Krishnappa. The respondent's contention was that crops were standing on the suit land and that the appellants would not offer to give security for the said crops when the mortgagor Krishnappa was directed to furnish security for the value of the crops on the lands covered by the mortgage if they had been the owners of a part of the property. The trial Court was not impressed by this argument because it was not satisfied that the circumstances under which the said surety bond was executed clearly showed that the appellants had furnished security for any crops standing on the land at present in suit. it clearly appears from the Commissioner's report then made that crops were standing on a small portion of the entire survey No. 445-B. The security bond was in English and there was nothing to show that the surety offered by the appellants had anything to do with any crop standing on their land. That is why the trial Court was not prepared to attach any significance to this circumstances Since it found that the property belonged to the appellants' family either by transfer or by reason of adverse possession, it held that the mortgage executed by Krishnappa in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd continuous. The plea of the respondent that the said possession was that of a tenant was rejected, and so, the said possession in law was adverse against the whole world. It was also clear that the possession continued until 1947 which was within twelve years before the date of the suit, These findings were based on appreciation of oral and documentary evidence examined in the light of the circumstances of the case and the probabilities. No question of construction of any document arose, nor did any question of drawing an inference of law arise in this case. The questions which 'arose were simple questions of fact and on them concurrent findings were recorded by the two courts. Aggrieved by the decree passed in his appeal by the District Court, the respondent moved the High Court under section 100 C. P. C., and his appear was heard by Sanjeeva Rao Nayudu J. The learned judge emphasised the fact that no sale deed had been produced by the appellants to prove their title, and then examined the documentary evidence on which they relied. He was inclined to hold that Ext. A-8 had not been proved at all and could not, therefore, be received in evidence. It has been fairly conceded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court assumes and exercises a jurisdiction which it does not possess, a gambling element in litigation and confusion in the mind of the litigant public." On this ground, this Court set aside the second appellate decision which had been brought before it by the appellants. In R. Ramachandra Ayyar v. Ramalingam Chettiar ([1963] 3 S.C.R. 604.), this Court had occasion to revert to the same subject once again. The true legal position in regard to the powers of the second appellate Court under s. 100 was once more examined and it was pointed out that the learned judges of the High Courts should bear in mind the caution and warning pronounced by the Privy Council in the case of Mst. Durga Chowdhrain'((1890) L.R. 17 I.A. 122) and should not interfere with findings of fact. It appears that the decision of this Court in Deity Pattabhiramaswamy ([1963] 3 S.C. R. 604.), was in fact cited before the learned single judge, but he was inclined to take the view that some aspects of the provisions contained in s. 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the courts below in the present appeal. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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