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CASE NO.: Appeal (civil)  1553 of 1999

PETITIONER: Thiagarajan & Ors.

RESPONDENT: Sri Venugopalaswamy B. Koil & 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.

       The 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.

       The 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.

       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 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

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owner and that the appellants and/or their father had no right, title or interest in the sui t  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.              

       The 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.

       The 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 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. 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:- (1)     Whether Murivi, mother of Kannan, was the legally wedded wife of one  Munian and whether her marriage with Munian is valid under law? (2)     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? (3)     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? (4)     Whether the Respondents/plaintiffs are entitled to the reliefs of

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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? (5)     To what reliefs the appellants/defendants are entitled?"

The 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.

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 substantial  question of law framed by another learned single Judge at the time of  admission. 3.      It 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.   4.      The 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.   It was 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.

According 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.

In 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]. Section 100 of the C.P.C. reads thus:- "(1) 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

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High Court, if the High Court is satisfied that the case involves a substantial  question of law.

(2) An appeal may lie under this section from an appellate decree passed ex  parte.

(3) In an appeal under this section, the memorandum of appeal shall  precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is  involved in any case, it shall formulate that question.   

(5) 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:

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 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.

We 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 a) that the High Court should be satisfied that the  case involved a substantial question of law and not mere question of law; b) reasons for  permitting the plea to be raised should also be recorded; c) it 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; d) in absence thereof, hearing of the second  appeal would be illegal. This Court further held as follows: "We would only add that (a) 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 (b) that in (exceptional) cases, at a later point of time, when

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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.   

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 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".   The 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. The 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. Contention No.4:          It was 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

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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 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.

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 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 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.  

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We, therefore, hold that the High Court has exceeded its jurisdiction in interfering  with the findings of the final court of fact. We, 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.