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CASE NO.: Appeal (civil)  820-821 of 1999

PETITIONER: Narayanan

RESPONDENT: Kumaran & Ors.   

DATE OF JUDGMENT: 16/03/2004

BENCH: R. C. Lahoti & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

       These two appeals were filed against the final judgment/order dated 6.3.1997  passed by the High Court of Kerala in C.M.A. Nos. 208/94 and 43/95 restoring the  common judgment and decree of the Trial Court having set aside the remand order of  the lower Appellate Court.  The short facts are.

The property in dispute in this appeal belong to one Kunjan who executed a  deed of settlement settling his properties including the disputed property on his  daughters.  One of the daughters Sumathi was minor to whom the C Schedule 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 described in the  document, Kunjan continued to be in possession of the disputed property and its  accredition while the 1st respondent, Kumaran was also closely moving with the family  and there was no action from Kunjan.

Kunjan accordingly sold the 50 cents covered by the D Schedule Ext.B1 as also  the accredition to the appellant by the deed of sale Ext.B4 on 5.3.1986.  The 1st  respondent was displeased at the development and he filed a suit OS No.125/86 for a  permanent injunction restraining them from entering into the disputed property.  Kunjan  became aware of the mistake in Schedule Ext.A1 only when notice of this suit was  received whereupon himself and the appellant filed a suit O.S. 146/86 for injunction  against the interference with his possession of the 50 cents of disputed property.  The  plaintiff pleaded that the transfer to the 1st respondent was only 1.51 acre and that the  disputed property was not comprised or intended to be transferred or to be in  possession of the vendee.  They pleaded that fraud was played by Pankajakshy and  her husband in the incorrect preparation of the Schedule to the document.

This recital was very clear that only the property allotted to Sumathi,  C Schedule  to Ext.B1 was transferred.  The trial court by its judgment dated 31.7.1990 held that the  entirety of the C and D Schedules to Ext.B1 has been transferred.  It also held that the  suit filed by the appellant and Kunjan in OS No.146/86 was barred by limitation.  The

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trial court also did not project the plea of fraud set up by Kunjan and the appellant.   Accordingly, OS 125/86 was decreed and OS 146/86 was dismissed.

       Pending suit Kunjan died.  The appellant was the other person interested,  therefore, filed an appeal and the other parties in the suit filed appeals which was  disposed of by a common judgment dated 24.6.1994.

       The District Court went into the evidence very elaborately and came to the  conclusion on appreciation of the evidence that what was intended to be transferred  was only the 1.5 acres comprised in C Schedule to Ext.B1 and that the D Schedule  property was not conveyed under Ext.B1.  Accordingly, he held that the 1st respondent  did not have title of the possession either over the Schedule or the accredition of 56  cents which lies in between the C & D Schedules properties.  He also held that the     misdescription in Ext.A1 sale deed was apparently due to the deceptive 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 the question of facts and allowed  the appeals setting aside the judgment of the District Court and restoring that of the  Munsiff Court.

       Being aggrieved, the appellant preferred the Special Leave Petitions/Appeals.

       We heard Mr.T.L.V. Iyer, senior advocate for appellant and Mr.P.Krishnamurthy,  senior advocate for respondent.  Mr. Iyer raised the following contentions:-          1.      The High Court has gone into excruciating of facts and has  appreciated evidence which is not warranted under Section 100 of the  C.P.C and is beyond its jurisdiction.  No question of law much less  any substantial question of law arose in the High Court 2.      The High Court has not formulated any question of law for decision nor  has it identified any such question of law anywhere in the judgment.   The interference with the judgment of the District Judge is purely on  question of facts. 3.      The findings by the High Court are based on appreciation of evidence  and are conclusions of facts.  No substantial question of law arise  therefrom.  The High Court has grossly erred in verifying the facts. 4.      The appeal under order 43 Rule (1) clause (u) should be heard only on  the ground enumerated under Section 100.  The appellant under order  43 Rule (1) clause (u)  is not entitled to agitate  question of facts as in  a first appeal.

Mr. P.Krishnamurthy, learned counsel for the respondents submitted the order  passed by the High Court in the appeals does not call for any interference.  He argued  that Section 100 is confined to second appeals against decrees and, therefore, cannot  be invoked in appeal against an order.

We have been taken through the pleadings and the judgments rendered by all  the three courts.  Our attention was also drawn to the records/documents.

The following questions of law arise for consideration by this Court:-

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1.      Whether the High Court was justified in going into excruciating details on facts  in a second appeal? 2.      Has not the High Court exceeded its jurisdiction under Section 100 of the  C.P.C. by reversing a well-considered Judgment of the First Appellate Court  on facts especially when no question of law much less any substantial  question of law arose for consideration?   

The submissions made by Mr.T.L.V. Iyer is well founded and merit acceptance.   A close scrutiny of the order passed by the High Court clearly goes to show that the  High Court has gone into minute 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 appellants in Civil Misc. Appeals against  question of facts and the findings of fact of   the lower court even though found to be erroneous are binding in such an appeal.

Mr.Krishnamurthy, learned senior counsel for the respondent cited no contrary  law.  He, however, reiterated that Section 100 is confined to second appeals against  decrees and, therefore, cannot be invoked in an appeal against an order.  It is, of  course, true that Section 100 in terms applies only to appeals second to decrees, but  the contention of Mr.Krishnamurthy cannot be accepted on account of language of  order 43 Rule (1) clause (u).  It reads as follows:-

"Order 43 Rule (1). Appeals from orders. An appeal shall lie from the following orders under the provisions of  Section 104, namely:- (a)     \005\005 Xxxx Xxxx Xxxx (t)     \005\005

(u)     an order under rule 23 [or rule 23A] of Order XLI remanding a case,  where an appeal would lie from the decree of the Appellate Court."

It is obvious from the above rule that an appeal will lie from an order of remand  only in those cases in which an appeal would lie against the decree if the Appellate  Court instead of making an order of remand had passed a decree on the strength of the  adjudication on which the order of remand was passed.  The test is whether in the  circumstances an appeal would lie if the order of remand where it is to be treated as a  decree and not a mere order.  In these circumstances, it is quite safe to adopt that  appeal under order 43 Rule (1) clause (u) should be heard only on the ground  enumerated in Section 100.  We, therefore, accept the contention of Mr. T.L.V.Iyer and  hold that the appellant under an appeal under order 43 Rule (1) clause (u) is not entitled  to agitate questions of facts.  We, therefore, hold that in an appeal against an order of  remand under this clause, the High Court can and should confine itself to such facts,  conclusions and decisions which have a bearing on the order of remand and cannot  convass all the findings of facts arrived at by the Lower Appellate Court.

The High Court of Rajasthan in Abdul Gani & Anr. v. Devi Lal & Anr. [ AIR

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1960 RAJASTHAN  77 ]  held that the appeal under this clause should be heard only  on the grounds enumerated in Section 100 and not on question of facts as in the case  of first appeal.  

In Seshammal & Ors. v. Kuppanaiyyangar & Anr. [ AIR 1926 Madras 475 ],  this Court held as under:

"Although 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 that the lower appellate Court has  substituted its own judgment to that of the trial Court and in the  peculiar circumstances of the present case it is not open to the  appellants in this civil miscellaneous appeal to canvass the  entire judgment and decree of the lower appellate Court by  filing an appeal under Order XLIII, Rule 1 (u), C.P.C.  I shall  presently advert to the right of an appellant in a civil  miscellaneous appeal to canvass the correctness of the  findings other than those relating to the order of remand in such  an appeal.  But in so far as this appeal is concerned, as there  has been a substitution of the judgment and decree of the  appellate Court to that of the trial Court, the only remedy  available to the appellants in this case was to file a second  appeal, if appeal under Order XLIII, Rule 1 (u), C.P.C.  Thus in  the peculiar circumstances and on the facts of this case, it is  not open to the appellants to canvass the other findings of the  lower appellate Court."

It is also useful to reproduce order 41 Rule 23 of CPC  which reads thus: "Where the Court from whose decree an appeal is preferred  has disposed of the suit upon a preliminary point and the decree is  reversed in appeal, the Appellate Court may, if it thinks fit, by order  remand the case, and may further direct what issue or issues shall be  tried in the case so remanded, and shall send a copy of its judgment  and order to the Court from whose decree the appeal is preferred, with  directions to re-admit the suit under its original number in the register  of civil suits, and proceed to determine the suit; and the evidence (if  any) recorded during the original trial shall, subject to all just  exceptions, be evidence during the trial after remand."

The High Court of Kerala has adopted an amendment made by the Madras High  Court which reads thus:- (a)     After the words "the decree is reversed in appeal", insert the  words, "or where the Appellate Court in reversing or setting  aside the decree under appeal considers it necessary in the  interests of justice to remand the case", and

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(b)     Delete the words "if it thinks fit", occurring after the words "the  Appellate Court  may". "

Under the rule as amended in Kerala, Madras by the addition of words "or where  the Appellate Court  in reversing or setting aside the decree under appeal considers it  necessary in the interest of justice to remand the case" 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 such recitals is proof positive that the D Schedule was not  intended to be conveyed.

In our view the Schedule to the document was prepared in excess of what was  intended to be conveyed.  It has been fraudulently prepared as rightly found by the  District Court.  It is a well established principle that when there is inconsistency in the  body of the document, containing the evidence clause and the schedule, the former  prevails over the latter.  As such when the intention of the parties was clear, the  Schedule to the document should not have been allowed to override the recital clause.

Like wise, the D Schedule was not intended to be conveyed is evident from the  fact that there is no mention of the accredition much less between the C & D Schedule  to Ext.B1.  If really the entire property as bulk was being conveyed certainly the  existence of the accredition or an intention to transfer the same would also have found  their place in the document.  The respondent has no case that he has any title to or  possession of the said accredition.  This very fact, in our view, cuts the root of the case  of the1st respondent to title to the disputed property.

The D Schedule to Ext.B1 could not have been common is very clear from entire  fact.  The agreement was that the property gifted to Sumiti would be sold and the  proceeds would be given to Pankajakshy in view of which Pankajakshy consented to  transfer her share in favour of Sumiti.  Accordingly, it was only the share of Sumiti which  was C Schedule to Ext.B1 which was sold and consideration thereunder was Rs.9,000/- No consideration for Kumaran’s transfer was admitted to and on the other hand the  consideration of Ext.A1 was received by Pankajakshy and her husband.  There is no  case for the 1st respondent that D Schedule to Ext.B1 was also intended to be  transferred as part of the scheme of package.

Kunjan was in possession of the disputed property.  He became aware of it only  when notice of OS 125/86 was received by him.  As noted by the District Court with  reference to the evidence in the case, the 1st respondent Kumaran was moving very  closely with Kunjan and his family and was on of the beneficiaries of Kunjan’s  magnificence.  It is only in 1986 when Kunjan sold the disputed property to the  appellant that he instituted the suit claiming title.  The finding of possession of the 1st  respondent is based on the document 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

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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 appellate  court was not correct in remanding the matter to the Trial Court.  According to them  there was no dispute regarding the identity and that the identity is clear from the rough  sketch appended to the judgment of the lower appellate court.  They submitted that  there was no necessity of remanding the matter to the lower appellate court and the  matter can be decided on merits by the High Court.             We are of the opinion that the judgment passed by the High Court in C.M.A.  208/94 and 43/95 cannot be sustained for the reasons stated supra.  We, therefore, set  aside the judgment passed by the High Court and restore the judgment passed by the  District Judge, Thodupuzha in Appeal Nos.125/86 and 146/86 on his file.  However, we  delete the directions given by the District Court in regard to the order of remand and   retain and sustain the judgment of the District Court dated 24.7.1994 in toto.  In the  result, the appeals filed by the appellant succeeds and we order no costs.