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CASE NO.: Appeal (civil)  3713 of 2001

PETITIONER: Krishnan

RESPONDENT: Backiam & Anr

DATE OF JUDGMENT: 11/09/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.3713 OF 2001

Markandey Katju, J.

1.       This appeal has been filed against the impugned judgment of the  Madras High Court dated 31.1.2000 in Second Appeal No.1927 of 1999.   

2.      We have heard learned counsel for the parties and perused the record.

3.      The plaintiff-appellant Krishnan filed a suit for declaration and  injunction against the respondent-defendant alleging that the property in  dispute had been earlier mortgaged to him on 30.9.1988 and then sold to him  by Ramayee (alias Lakshmi) by registered sale deed dated 25.9.1989 which  was also rectified by another registered sale deed dated 10.9.1990.  It was  alleged in the suit that an attempt was being made to dispossess the plaintiff  and hence injunction may be granted in his favour.

4.      The defendant filed a written statement in the suit in which it was  contended that Ramayee had neither executed the registered mortgage deed  dated 30.9.1988, nor the registered sale deed dated 25.9.1989, nor the  rectification deed dated 10.9.1990.  It was alleged in the written statement  that on the request of the owner of the land, Ramayee, the defendant is  assisting her in cultivating the said property under her instructions and  plaintiff has no right over the property.  It was alleged by the defendant- respondent that the mortgage deed dated 30.9.1988, sale deed dated  25.9.1989 and the rectification deed dated 10.9.1990 alleged to have been  executed by Ramayee, are in fact forged documents.       

5.      The trial court dismissed the suit, against which the plaintiff-appellant  filed a first appeal in the court of subordinate Judge, Sivaganga, which was  allowed by the judgment dated 13.4.1999.  In this judgment the First  Appellate Court held : "It appears from the evidences of the  plaintiff’s witnesses that Lakshmi and Ramayee  are one and the same persons.  Once the plaintiff  proves his case through his witnesses, the burden  of proof shifts to the defendant.  It is for the  defendant to prove that Exhibit-A4 sale deed is a  forged document or a created one.  The law does  not require attestation of sale deed as a compulsory  one.  Section 54 and 59 of Transfer of Properties  do not speak about compulsory attestation.  When  law does not require compulsory attestation of a  document, such unattested document may be  proved as per the provisions of Indian Evidence

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Act.  Section 68 of Indian Evidence Act has no  application for sale deed.  Section 68 of the Indian  Evidence Act is applicable only to the cases where  the documents are required to be attested in law."       

6.      Thus, although the mortgage deed dated 30.9.1988, the sale deed  dated 25.9.1989 and the rectification deed dated 10.9.1990 are alleged to  have been executed by Lakshmi, it has been found by the First Appellant  Court that Lakshmi and Ramayee are one and the same person.  Since  admittedly Ramayee was the owner of the property in dispute, the sale deed  dated 25.9.1989 alleged to have been executed by Lakshmi, Exhibit-A4, was  in fact executed by Ramayee, since Lakshmi and Ramayee are the same  person.  Hence because of the sale deed, title to the property passed to the  plaintiff-appellant.

7.      The First Appellate Court also held that the burden of proving that the  sale deed Exhibit-A4 was a forged document on the defendant but he did not  discharge his burden.  It was further held that the sale deed was proved by  PW3 as well as by PW1.  The First Appellate Court also held that the  plaintiff is in possession of the property in dispute and the sale deed dated  25.9.1989 was valid.  

8.      Against the judgment of the First Appellate Court the defendant- respondent filed a second appeal before the High Court which has been  allowed.  This appeal by special leave has been filed against the said  judgment of the High Court dated 31.1.2000.

9.      A perusal of the judgment of the High Court shows that the High  Court formulated the following three questions as substantial questions of  law :  "1.     Whether the Lower Appellate Court has not committed an error of law in placing the  burden of proof upon the second appellant  about the execution and registration of  documents under Exx.A-3 to A-5?

2.      Whether the Lower Appellate Court has not  committed an error of law in decreeing the  suit when the respondent/plaintiff has failed  to prove that the documents under Exx.A-3  to A-5 were executed and registered by the  second appellant? And

3.      Whether the Lower Appellate Court has not  committed an error of law in holding that the  respondent is in possession and enjoyment  of the suit property in the absence of any  materials on record?

10.     Under the amended Section 100 CPC the High Court has to frame  substantial questions of law and can decide the second appeal only on those  questions framed.  A perusal of the questions framed shows that no question  of law was framed as to whether the finding of fact of the First Appellate  Court that Lakshmi and Ramayee are one and the same person, is based on  no evidence or is perverse.   

11.     It may be mentioned that the First Appellate Court under Section 96  CPC is the last court of facts.  The High Court in second appeal under  Section 100 CPC cannot interfere with the findings of fact recorded by the  First Appellate Court under Section 96 CPC.  No doubt the findings of fact  of the First Appellate Court can be challenged in second appeal on the  ground that the said findings are based on no evidence or are perverse, but

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even in that case a question of law has to be formulated and framed by the  High Court to that effect.  In the present case no question was framed by the  High Court as to whether the finding of the First Appellate Court that  Ramayee and Lakshmi are one and the same person, is a finding based on no  evidence or is perverse.  Hence the findings of the First Appellate Court that  Ramayee and Lakshmi are one and the same person, could not have been  interfered with by the High Court. 12.     A perusal of the judgment of the High Court shows that the High  Court has practically acted as a First Appellate Court and has re-appreciated  the findings of fact of the learned Subordinate Judge which it could not  validly do in exercise of its jurisdiction under Section 100 CPC.

13.     In the circumstances, we set aside the impugned judgment of the High  Court and restore the judgment of the First Appellate Court dated 13.4.1999.

13.     The Appeal is allowed.  There is no order as to costs.