14 February 2020
Supreme Court


Case number: C.A. No.-002165-002165 / 2009
Diary number: 18192 / 2005












1. The defendants are in appeal aggrieved against an order passed by

the High Court of Karnataka on 14th June, 2005 whereby the appeal

filed by the plaintiff - C. Jayarama Reddy was allowed by setting

aside  the  concurrent  findings  of  facts  recorded  by  two  courts

below.  The High Court answered the following substantial question

of law:

“Whether  the  judgment  and  decree  passed  by  the Courts  below  suffer  from  illegality  on  account  of improper  consideration  of  Ex.P1,  i.e.,  school  leaving certificate?”

2. The plaintiff filed a suit  for partition and separate possession of

1/4th share in the Suit schedule property between himself and his

three brothers who are defendant Nos. 1, 2 and 3.  Defendant Nos.

4 to 17 are the persons who have purchased the property from the



defendant Nos. 1 to 3, the brothers.  The plaintiff claimed that he

was minor at the time of death of his father in the year 1963 and

that he continued as a member of the joint Hindu family in joint

possession and enjoyment of the property of joint Hindu family. The

plaintiff  asserted  that  his  signatures  were  obtained  on  a  few

documents and that he was not aware of the contents of the same

nor did he execute any document thereof  and understood what

they were.  Para 6 of the plaint reads thus:

“6. The plaintiff was kept in the dark about the family affairs  and  implicitly  obeyed the  dictates  of  the  other defendants and did whatever he was asked to do.   In fact,  his signatures were taken on few documents and the  plaintiff  is  not  aware  of  the  contents  nor  did  he execute any document thereof or understands what they were.”

3. In the written statement filed, it was asserted that the plaintiff and

defendant Nos. 1 to 3 and their father were members of joint Hindu

family till 15th June, 1963.  The plaintiff demanded and wished to

separate  himself  from  the  joint  Hindu  family  and  executed  a

release deed on 15th June, 1963 and severed all the connections

from  the  joint  Hindu  family  when  he  received  consideration  of

Rs.5,000/- for his share and relinquished all his rights in the family.

The  plaintiff  went  away  from  the  family  after  execution  of  the

release  deed  and  lived  at  Kempapura  village  since  1963 in  his

father-in-law’s house.  It was denied that the plaintiff was minor at

the time of  death of  his  father.   It  was further pleaded that he

married one Mamjamma d/o Nanjundappa of Kempapura on 29th

June, 1964.   



4. On the basis of respective pleadings of the parties, the trial court

framed as many as 16 issues.  However, the relevant issues are

Issue Nos. 1 and 2 at this stage, which read as under:

“1. Whether the plaintiff was a minor in 1963?

2.  Whether the plaintiff separated from the joint family and executed a release deed dated 15.06.1963? If so, is the same valid and is the plaintiff entitled to a share?”

5. The plaintiff in order to prove that he was minor produced School

Leaving Certificate Ex. P/1 and also examined his brother PW.2 C.

Ramaswamy Reddy.  The brother did not depose about the age of

the plaintiff at the time of death of his father. The plaintiff has not

produced any official from the school to prove that such certificate

was from the record of the school nor did he examine Head Master

who  has  issued  such  certificate.   The  plaintiff  has  also  not

examined  his  mother  who  was  available  at  the  time  when  the

evidence of the plaintiff was being recorded.  

6. The learned trial  court  on Issue No. 1 found that the registered

release deed (Ex.D/1) dated 15th June, 1963 mentions the age of

the plaintiff as about 22 years and subsequent to the execution of

the  release  deed  the  plaintiff  married  Nanjamma  on  29th June,

1964.   The  registered  marriage  deed  Ex  D-2,  produced  by  the

defendants, also proves that the age of the plaintiff was 24 years.

The trial  court  did  not  rely  on the  date  of  birth  of  the  plaintiff

mentioned in the School Leaving Certificate (Ex.P/1) as the same

was not put by the Head Master of the School and the plaintiff did



not examine the Head Master of the School to prove the contents

of the School Leaving Certificate.  Thus, the learned trial court held

that  the  plaintiff  was  not  a  minor  at  the  time  of  execution  of

release deed in favour of his brothers and his father.   

7. Learned trial  court further held that the plaintiff has stated that

some of his signatures were taken by his father on few documents

and he was not aware of the contents of those documents.  The

defendants have proved the execution of the release deed by the

plaintiff.  The plaintiff admitted that he executed a release deed on

15th June,  1963  and  has  been  residing  with  his  father-in-law  in

Kempapura  because  a  dispute  arose  between  his  father  and

brothers and himself.  He admitted that his father died on 30th June,

1963 and that his brothers are residing separately since 1964.  The

trial court further held that the plaintiff has not pleaded any fraud

or coercion in respect of release deed, thus, the Court came to the

conclusion that the release deed is valid and the plaintiff is not

entitled to any share in the suit schedule properties.

8. Aggrieved, plaintiff filed appeal before the learned First Appellate

Court.  The learned First Appellate Court examined the questions

as to whether on the date of execution of the release deed, the

plaintiff was a major or not and whether the release deed obtained

by  undue  influence  or  coercion  etc.   The  Court  held  that  the

plaintiff had not pleaded at any time that the release deed was

obtained by  fraud or  coercion  or  that  he  had not  received any



consideration  thereunder.   After  discussing  the  statements  of

witnesses and the documents produced by the parties,  the First

Appellate Court held that plaintiff was not a minor at the time of

execution of release deed and, thus, dismissed the appeal of the

plaintiff and that the order of dismissal of suit of the learned trial

court was upheld.

9. In  second  appeal,  the  substantial  question  framed  by  the  High

Court was whether the judgment and decree passed by the courts

below suffers from illegality on account of improper consideration

of Ex.P/1, i.e., School Leaving Certificate.  The High Court returned

a finding that Ex.P/1 is a transfer certificate and, thus, the plaintiff

was minor and such certificate is admissible as proof of age under

Section 35 of the Evidence Act.  It was held that since the plaintiff

was minor on the date when the release deed was executed on 15th

June, 1963, therefore, such deed is null and void and incapable for

raising a plea of estoppel. The reliance was placed upon  Nawab

Sadiq Ali Khan & Ors.  v.  Jai Kishori & Ors.1.  After returning

such finding, the High Court held that release deed is null and void

and not binding, though the High Court returned finding that the

plaintiff has received a consideration of Rs.5,000/- at that time.

10. Learned counsel for the plaintiff relied upon the judgment of this

Court  reported  as  Wali  Singh  v.  Sohan  Singh2 wherein  the

relinquishment by one Kirpal Singh as a guardian of Wali Singh was

found to be infructuous in law.   

1  AIR 1928 Privy Council 152 2  AIR 1954 SC 263



11. We  do  not  find  any  merit  in  the  argument  raised  by  learned

counsel for the plaintiff relying upon judgment in Wali Singh.  In

Wali  Singh,  the  plaintiff  challenged  the  mutation  said  to  have

been  made  during  his  minority.   The  argument  was  that  he

inherited property on the date of death of Kirpal Singh but before

his adoption.  The High Court dismissed the suit filed by Wali Singh,

interalia, for the reason that it was incumbent upon Wali Singh to

get the transfer set aside within three years of attaining majority

notwithstanding  that  the  parties  may  have  continued  in  joint

possession.  It was on the statement of Kirpal Singh, his adopted

father, that the mutation was sanctioned that Wali Singh does not

have any concern with the property of his natural father.  It was

found that  the  statement  made by Kirpal  Singh  was  not  based

upon any transfer or relinquishment as the guardian of Wali Singh

whereas the release by minor Wali Singh was infructuous in law.

Therefore, the suit cannot be said to be barred by virtue of Article

44 of the Limitation Act.  The said judgment has no applicability to

the facts of the present case as it does not deal with the question

of  admissibility  of  a  School  Leaving  Certificate  which  would

determine the date of birth.

12. The argument of learned counsel for the plaintiff-respondent is that

transfer certificate is a public document which was prepared on the

basis of a statement made by his father.  Such document bears the

signature  of  his  father  as  well.   It  is  also  contended  that  such

document is prepared in the course of official duty of the staff of



the  Government  School,  therefore,  there  is  presumption  of

correctness  in  terms  of  Section  35  of  the  Indian  Evidence  Act,

1872.  Learned counsel  for the plaintiff has also referred to the

judgment of this Court reported as Birad Mal Singhvi v.  Anand

Purohit3 wherein,  the  entry  recording  the  Date  of  Birth  in  the

School Register is said to have a probative value.  Reference is also

made to a judgment reported as Madan Mohan Singh & Ors. v.

Rajni  Kant  &  Anr.4 to  contend  that  the  entry  in  the  School

Register cannot be brushed aside.

13. Learned counsel for the plaintiff also relied upon the judgment of

this  Court  reported  as  Madhegowda  (Dead)  by  LRs  v.

Ankegowda  (Dead)  by  LRs  &  Ors.5 that  filing  of  a  suit  is

sufficient to repudiate the alleged relinquishment deed, which is a

void document.   

14. We do not  find any merit  in  the arguments  raised.   The public

document in terms of Section 74 of the Indian Evidence Act, 1872

includes  the  documents  forming  records  of  official  bodies  or

tribunals.  Section 76 of the said Act gives a right to any person to

demand a copy of a public document on payment of a fee together

with the certificate written at the foot of such copy that it is a true

copy of such document.  Certified copies may be produced in proof

of  the  contents  of  the  public  documents  or  parts  of  the  public

documents of which they purport to be copies.  The plaintiff has

produced photocopy of the Certificate (Ex.P/1) on the records of

3  1988 (Supp.) SCC 604 4  (2010) 9 SCC 209 5  (2002) 1 SCC 178



this appeal.  Such Certificate does not show that it is said to be a

certified copy of a public document as contemplated by Section 76

of the said Act.   

15. School Leaving Certificate has been produced by the plaintiff and

said to be signed by his father.  The person who has recorded the

date of birth in the School Register or the person who proves the

signature of  his father in the School  Transfer Certificate has not

been examined.  No official  from the School  nor  any person has

proved the signatures of his father on such certificate. Apart from

the self-serving statement, there is no evidence to show that the

entry of the date of birth was made by the official in-charge, which

alone would make it admissible as evidence under Section 35 of

the Indian Evidence Act, 1872.  However, the High Court has not

found  any  other  evidence  to  prove  the  truthfulness  of  the

Certificate (Ex.P/1).

16. The reliance of the plaintiff on Madhegowda is again not relevant

to the issues arising in the present case.  In the aforesaid case, the

property  of  admittedly  a  minor  was  sold  by  sister  of  the minor

purportedly acting as a guardian.  There was no dispute about the

age of the seller who was minor. The dispute in the present appeal

revolves around the fact whether the plaintiff was a minor on the

date the release deed was executed. The entire case is based upon

School Transfer Certificate (Ex.P/1) which does not prove the date

of birth, recorded therein, as reliable and trustworthy.   

17. In Birad Mal Singhvi, the Date of Birth was sought to be proved



by the Principal  of  the School.   Though,  the Principal  could  not

produce the admission form in original  or its  copy.  It  was held

therein  that  the  entries  contained  in  the  school’s  register  are

relevant  and  admissible  but  have  no  evidentiary  value  for  the

purpose of proof of date of birth of the candidates.  A vital piece of

evidence was missing as no evidence was placed before the court

to show on whose information the date of birth was recorded in the

aforesaid document.  It was held as under:

“14.  …..No doubt, Exs. 8. 9, 10, 11 and 12 are relevant and  admissible  but  these  documents  have  no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As  already  stated  neither  of  the  parents  of  the  two candidates  nor  any  other  person  having  special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents.  Parents or near relations having  special  knowledge  are  the  best  persons  to depose  about  the  date  of  birth  of  a  person.  If  entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special  knowledge of  the  fact,  the  same would  have probative  value.  The  testimony  of  Anantram  Sharma and  Kailash  Chandra  Taparia  merely  prove  the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made  the  entry  or  who  gave  the  date  of  birth  is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the  basis  of  information  given  by  the  parents  or  a person  having  special  knowledge  about  the  date  of birth of the person concerned….”

18. In Madan Mohan Singh, this Court held that the entries made in

the  official  record  may  be  admissible  under  Section  35  of  the



Indian Evidence Act, 1872 but the Court has a right to examine

their  probative  value.   The  authenticity  of  the  entries  would

depend on whose information such entries stood recorded.  The

Court held as under:

“20.  So far as the entries made in the official record by an  official  or  person  authorised  in  performance  of official  duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a  right  to  examine  their  probative  value.  The authenticity  of  the  entries  would  depend  on  whose information such entries stood recorded and what was his  source  of  information.  The  entries  in  school register/school leaving certificate require to be proved in  accordance  with  law  and  the  standard  of  proof required in such cases remained the same as in any other civil or criminal cases.

21.   For  determining  the  age  of  a  person,  the  best evidence  is  of  his/her  parents,  if  it  is  supported  by unimpeachable  documents.  In  case  the  date  of  birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous  documents  like  the  date  of  birth register  of  the  Municipal  Corporation,  government hospital/nursing  home,  etc.,  the  entry  in  the  school register  is  to  be  discarded.  (Vide Brij  Mohan Singh v. Priya  Brat  Narain  Sinha [AIR  1965  SC 282]  , Birad  Mal  Singhvi v. Anand  Purohit [1988  Supp SCC  604  :  AIR  1988  SC  1796]  , Vishnu v. State  of Maharashtra [(2006)  1  SCC  283  :  (2006)  1  SCC  (Cri) 217]  and Satpal  Singh v. State  of  Haryana [(2010)  8 SCC 714 : JT (2010) 7 SC 500] .)

22.  If  a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its  authenticity  in  terms of  Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by  examining  the  person  having  special  means  of knowledge, authenticity of date, time, etc.  mentioned therein.  (Vide Updesh  Kumar v. Prithvi  Singh [(2001)  2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State  of  Punjab v. Mohinder  Singh [(2005)  3  SCC 702 : AIR 2005 SC 1868].)”



19. In a judgment reported as Ram Suresh Singh v. Prabhat Singh

& Anr.6, it has been held that entry in the School Register may not

be a public  document and, thus,  must be proved in accordance

with law.  The Court held as under:

“12.   The  condition  laid  down  in  Section  35  of  the Evidence Act for proving an entry pertaining to the age of  a  student  in  a  school  admission  register  is  to  be considered  for  the  purpose  of  determining  the relevance thereof. But in this case, the said condition must  be  held  to  have  been  satisfied.  An  entry  in  a school  register  may  not  be  a  public  document  and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mal Singhvi but in this case the said entry has been proved.”

20. We find that the High Court gravely erred in law in interfering in

the findings  of  fact  recorded by the  First  Appellate  Court.   The

plaintiff has not challenged the release deed dated 15th June, 1963

in  the  plaint  on  the  ground  that  he  was  minor  on  the  date  of

execution nor has he challenged on the ground of fraud, coercion

or undue influence in execution of the said document.  He has not

pleaded so as is required to be pleaded in terms of Order VI Rule 4

Code of Civil Procedure, 19087.  The only pleading raised by the

plaintiff is that he was a minor at the time of death of his father in

1963.  He has not disclosed the date of death of his father in the

plaint.  The averment in the plaint is that his signatures have been

obtained on certain documents but he does not know the contents


21. There  is  a  categorical  plea  in  the  written  statement  that  the

6  (2009) 6 SCC 681 7  for short, ‘the Code’



release deed was voluntarily executed and he walked away from

the family and stayed in the village of his father-in-law.  The fact

that he left village and stayed in the house of his father-in-law is

admitted by him when he appeared as PW-1.  The High Court has

also not disputed that a sum of Rs.5,000/- was received by him

when the release deed was executed on 15th June, 1963.

22. The  plaintiff  has  taken  benefit  of  consideration  of  Rs.5,000/-  in

pursuance of the release deed executed on 15th June, 1963.  He

has not challenged such release deed in the suit filed but asserted

to  be  member  of  joint  Hindu  family  though  as  per  his  own

evidence, he left joint family and started living in the Village of his

father-in-law.   Thereafter,  on  the  basis  of  the  release deed,  the

other members of the family have transferred some of the property

in  favour  of  the  other  defendants;  therefore,  the  suit  could  not

have been decreed when the two registered documents (Ex.D/1

and Ex.D/2) are not disputed by the plaintiff when confronted with

such document in the cross-examination.   

23. We find that the onus was on the plaintiff to prove that he was a

minor at the time of execution of release deed. He failed to prove

his  date  of  birth  as  8th April  1946,  therefore,  his  suit  is  to  be

dismissed and was rightly dismissed by the learned trial court and

the First Appellate Court. The High Court in Second Appeal could

not reappreciate the evidence to take a different view that such

document is proved. The illegality on account of alleged improper

consideration does not give rise to a substantial question of law.

24. The plaintiff has admitted the release deed and the marriage deed



dated 15th June, 1963 and 29th June, 1964 respectively having been

executed by him when confronted with in his cross examination.

Both  the  documents  are  registered  documents.  On  the  basis  of

admission,  both  courts  have returned  a  finding of  fact  that  the

plaintiff has not been able to prove date of birth as 8th April, 1946.

We find that the High Court committed a grave error in interfering

in the second appeal by merely taking a different view on the basis

of same evidence on the basis of which both the trial court as well

as First Appellate Court held the plaintiff has failed to prove his

date of birth as 8th April 1946.  

25. The question as to whether a substantial question of law arises,

has been a subject matter of interpretation by this Court. In the

judgment reported as Karnataka Board of Wakf v. Anjuman-E-

Ismail Madris-Un-Niswan8, it was held that findings of the fact

could  not  have been interfered within  the  second appeal.   This

Court held as under:  

“12. This Court had repeatedly held that the power of the  High  Court  to  interfere  in  second  appeal  under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding  of  fact  is  either  perverse  or  not  based  on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It  is  now well  settled that  concurrent  findings  of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its

8  (1999) 6 SCC 343  



jurisdiction  under  Section  100  of  Civil  Procedure Code.  The  Single  Judge  of  the  High  Court  totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In  Navaneethammal  v.  Arjuna  Chetty (1996  6  SCC 166), this Court held :  

"Interference  with  the  concurrent  findings  of  the courts below by the High Court under Section 100 CPC  must  be  avoided  unless  warranted  by  com- pelling reasons. In any case, the High Court is not expected  to  reappreciate  the evidence  just  to  re- place the findings of the lower courts. … Even as- suming that another view is possible on a reappreci- ation 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."

15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: (SCC p. 486, para 5)

"The High Court  was grossly  in  error  in  trenching upon  the  appreciation  of  evidence  under  Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In  a  judgment  reported  as  Kondiba  Dagadu  Kadam  v.

Savitkibai  Sopan Gujar  & Ors.9,  this  Court  held  that  from a

given set of circumstances if two inferences are possible then the

one drawn by the  lower  appellate  court  is  binding  on the  High

Court.  In  the  said  case,  the  First  Appellate  Court  set  aside  the

judgment of the trial  court.  It  was held that the High Court can

interfere if the conclusion drawn by the lower court was erroneous

being contrary to mandatory provisions of law applicable or if it is a

settled  position  on  the  basis  of  a  pronouncement  made by the

9  (1999) 3 SCC 722



court or based upon inadmissible evidence or arrived at without

evidence. This Court held as under:  

“5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at,  by the last  court  of  fact,  being the first  appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground  for  interference  in  second  appeal  when  it  is found that  the appellate  court  had given satisfactory reasons for doing so. In a case where from a given set of  circumstances  two  inferences  are  possible,  one drawn by the lower appellate court  is binding on the High  Court  in  second  appeal.  Adopting  any  other approach  is  not  permissible.  The  High  Court  cannot substitute  its  opinion  for  the  opinion  of  the  first appellate court unless it is found that the conclusions drawn  by  the  tower  appellate  court  were  erroneous being  contrary  to  the  mandatory  provisions  of  law applicable  of  its  settled  position  on  the  basis  of pronouncements made by the apex Court, or was based upon  in  inadmissible  evidence  or  arrived  at  without evidence.”

27. In  another  judgment  reported  as  Santosh  Hazari  v.

Purushottam Tiwari10, this Court held as under:  “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question  of  law.  To  be  substantial,  a  question  of  law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there  must  be  first  a  foundation  for  it  laid  in  the pleadings  and  the  question  should  emerge  from  the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question

10  (2001) 3SCC 179



of law is a substantial one and involved in the case, or not;  the  paramount  overall  consideration  being  the need  for  striking  a  judicious  balance  between  the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

28. Recently in another judgment reported as State of Rajasthan v.

Shiv Dayal11, it was held that a concurrent finding of the fact is

binding, unless it is pointed out that it was recorded  de hors the

pleadings or it was based on no evidence or based on misreading

of  the  material  on  records  and  documents.  The  Court  held  as


“When  any  concurrent  finding  of  fact  is  assailed  in second appeal, the appellant is entitled to point out that it  is  bad in law because it  was recorded de hors the pleadings  or  it  was  based  on  no  evidence  or  it was based  on  misreading  of  material  documentary evidence or it was recorded against any provision of law and lastly,  the decision is one which no Judge acting judicially  could  reasonably  have  reached.  (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors.  vs.  Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117  Para 43).”

29. The learned High Court has not satisfied the tests laid down in the

aforesaid  judgements.   Both  the  courts,  the  trial  court  and the

learned First Appellate Court, have examined the School Leaving

Certificate and returned a finding that the date of birth does not

stand proved from such certificate.  May be the High Court could

have taken a different view acting as a trial court but once, two

11  (2019) 8 SCC 637



courts  have  returned  a  finding  which  is  not  based  upon  any

misreading  of  material  documents,  nor  is  recorded  against  any

provision of law, and neither can it be said that any judge acting

judicially and reasonably could not have reached such a finding,

then, the High Court cannot be said to have erred.  Resultantly, no

substantial question of law arose for consideration before the High


30. Thus, we find that the High Court erred in law in interfering with

the finding of fact recorded by the trial court as affirmed by the

First Appellate Court.  The findings of fact cannot be interfered with

in  a  second appeal  unless,  the  findings  are  perverse.  The High

Court could not have interfered with the findings of the fact.  

31. In view of the aforesaid enunciation of  law and the facts of  the

present case, we find that the High Court committed grave error in

law in setting aside the concurrent findings of facts recorded by the

First Appellate Court and the Trial Court.  Consequently, the appeal

is allowed and the suit is dismissed with no order as to cost.

.............................................J. (S. ABDUL NAZEER)

.............................................J. (HEMANT GUPTA)