http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: RAMANUJA NAIDU

       Vs.

RESPONDENT: KANNIAH NAIDU & ANR.

DATE OF JUDGMENT:       12/03/1996

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) PUNCHHI, M.M.

CITATION:  1996 SCC  (3) 392        JT 1996 (3)   164  1996 SCALE  (2)718

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PARIPOORNAN,J.      The first defendant in O.S. 329 of 1967, Munsiff Court, Thirukoilur, has filed this appeal against the judgment of a learned single  Judge of  the Madras  High Court rendered in S.A. No.  93 of  1974 dated 27.8.1976, after having obtained special leave  in Special Leave Petition No. 4469 of 1977 by order dated  25.1.1978. The  plaintiff and the 2nd defendant in the suit are the respondents herein. 2.   The plaintiff  filed the  suit for  declaration of  his title to the suit property and for recovery of possession of the same.  The suit property is the northern 33 cents of dry land out  of 65 cents in survey No. 217/4 in Payyur village. It belonged  to the second defendant and his minor sons. The second defendant  executed Ext.  B-l registered usufructuary mortgage dated 12.9 1966 to one Chellian, DW-3, for a sum of Rs.600/-. The case put forward by the plaintiff was that the suit property  belonged to  the  second  defendant,  and  he subsequently sold the suit property to him by sale deed Ext. A-1 dated  5.6.1967 for Rs.1,100/-, with direction to redeem Ext.  B-1,   mortgage.  The  sale  deed  was  registered  on 7.6.1967. He  further  alleged  that  the  second  defendant executed a  sale deed  in favour  of the  1st  defendant  on 5.5.1967, (Ex.B-2); that the first defendant and his father- in-law, who  had a  long standing enmity with the plaintiff, got the  same executed  by the  second defendant  dating the sale deed  as one  executed on  5.5.1967 and  the  same  was registered on  8.6.1967 (Ex.  B2). The plaintiff objected to registration, but  it was futile. The plaintiff alleged that the sale  deed executed in his favour is anterior to Ex.B-2, and so  the  first  defendant  has  no  title  to  the  suit property. It  was in  these circumstances that the plaintiff laid the suit for declaration of his title and recovery of possession, impleading his vendor, the second defendant. 3.   The first  defendant contended  that he  purchased  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

property from  the second  defendant vide  Ex.B-2, sale deed dated 5.5.1967 with a direction to redeem Ex. B-1, mortgage, that  he   redeemed  Ex.B-1,  Mortgage  and  discharged  the liability of  mortgagee, Chellian  (DW-3) on 10.5.1967, took possession of  property  and  cultivated  the  same.  It  is thereafter with  the  knowledge  of  the  above  facts,  the plaintiff took the sale deed due to enmity, on 5.6.1967. The document in his favour dated 5.5.1967 is genuine and earlier in point  of time  and conveyed  valid  title  to  the  suit property. Plaintiff  has no  valid or  proper title  as  per Ex.A-1  and,   so,  the   plaintiff’s  suit  for  title  and possession is  unsustainable. The second defendant contended that he  executed the  sale deed to the plaintiff as stated, and the  subsequent execution  of the  document in favour of the first  defendant is  sham and  ineffective. The  learned Munsiff, by judgment dated 3.3.1969 found that the sale deed executed by  the second  defendant in  favour of  the  first defendant (Ex.B-2)  is earlier in point of time, to the sale deed executed  by the  second defendant  in  favour  of  the plaintiff, that Ex. B-2 is true and valid and, dismissed the suit. In  the appeal  filed by  the plaintiff,  the  learned Subordinate Judge,  Cuddalore, by  judgment dated 26.3.1973, held on an analysis of the facts and circumstances, that the sale deed  - Ex.B-2, was executed by the second defendant in favour of  the first defendant on 5.5.1967, which is earlier in point  of time  to the  sale deed  executed by the second defendant in  favour of  the plaintiff on 5.6.1967, and that Ex.B-2 is valid and genuine. It was further held that on the date of  the sale deed, Ex. A-1, in favour of the plaintiff, the second  defendant had  no subsisting  title to  the suit property and  the plaintiff  did not  acquire valid title to the suit  property. Ex.  A-1 was  held to be invalid in law. The judgment and decree of the trial court were affirmed. 4.   The plaintiff  filed a  second appeal before the Madras High Court  as S.A. No 93 of 1974. A learned single Judge of the Madras High Court, on reappreciating the entire evidence held, that the sale deed executed by the second defendant in favour of  the plaintiff  (Ex.A-1) is  a  document  executed earlier, there is no collusion between the plaintiff and the second defendant  and it  is "not  probable" that  the first defendant obtained the sale deed on 5.5.1967. Characterizing the judgments  and decrees  of the courts below as perverse, the learned  Single Judge  reversed the concurrent judgments of the  courts  below,  allowed  the  appeal  filed  by  the plaintiff and  ordered that  there  will  be  a  decree  for declaration of  the plaintiff’s  title to  suit property and for recovery  of possession.  The plaintiff  was directed to deposit  a   sum  of  Rs.600/-  for  payment  to  the  first defendant. It is thereafter, the first defendant in the suit having obtained special leave, has filed this appeal. 5.   We heard  counsel for the appellant, Mr. A.T.M. Sampath and counsel  for the  first respondent, Mr. K Ram Kumar. The second respondent (second defendant), though served, was not represented before us. The plaintiff’s definite case is that the sale deed executed in his favour by the second defendant Ex.A-1, dated  5.6.1967 is earlier in point of time and that Ex. B-2  dated 5.5.1967 was not obtained on that date by the first  defendant   from  the   second  defendant.  In  these circumstances, first defendant has no title. First defendant obtained  Ex.B-2  document  in  collusion  with  the  second defendant. The  trial court  and the  first appellate  court scanned the  entire documentary  and oral evidence including the different dates on which the stamp papers were purchased by  the   parties,  and   entered  the  following  findings. According to  the plaintiff, two stamp papers were purchased

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

on 3.6.1967  and the  third paper  was obtained on 27.5.1967 and that  the document  Ex.A-1, Sale  Deed was  executed  on 5.6.1967 by  the second  defendant. PW-2  is the  scribe  of Ex.A-1. There are three attesters to the said document. None of them  were examined.  There are  patent contradictions in the evidence  of the  plaintiff  as  PW-1  and  PW-2  scribe regarding payment  of consideration  for Ex.A-1. A reference to the suit notice sent by the plaintiff - Ex.A-4, and other circumstances show  collusion between  the plaintiff and the second defendant.  On the  other hand,  the evidence  of 1st defendant as DW-6, the mortgagee under Ex. B-1, DW-3 and DW- 4  one   Naidu  and  DW-5  (scribe)  independent  witnesses, positively  point   out  that   liability  as   per  Ex.B-1, usufructuary mortgage was discharged on 10.5.1967, the first defendant took  possession of  the property  and  thereafter cultivated the same. The specific plea of the plaintiff that the discharge  of the  mortgage, Ex.B-1,  was after the sale deed, Ex.  B-2, was  registered on  8.6.1967, was held to be unfounded. The  trial court  as well  as the lower appellate court  believed  the  evidence  of  the  defendant  and  his witnesses DW--3  to DW-6  and held that the Ex.B-1, mortgage was discharged  on 10.5.1967 and the facts and circumstances pointed out  that Ex.B-2,  sale deed  was  genuine  and  was executed by  the second  defendant in  favour of  the  first defendant on 5.5.1967 which is earlier in point of time. So, the sale  deed executed by the second defendant in favour of the plaintiff  later, on 5.6.1967 is invalid and that Ex.B-2 is valid  and legal. On the above findings, it was concluded that on  the date  of Ex.A-1,  the vendor (second defendant) had no  subsisting title  to suit property and the plaintiff did not acquire any good or valid title. 6.   In second  appeal on reappreciating the entire evidence in the  case, the  learned single  Judge of  the High  Court faulted the  judgments of  the courts below to the following effect. The  sale deed  Ex.B-2, is  dated 5.5.1967  but  was registered later,  only on  8.6.1967. In  view of  the above delay, it  is "probable"  that the document was not executed on 5.5.1967.  Reappreciating the circumstance leading to the purchase of  stamp papers  end other  evidence, it  was held that  it  is  not  "probable"  that  on  10.5.1567,  Ex.B-l, usufructuary mortgage  would have  been discharged  and  the first  defendant  would  not  have  got  possession  of  the property, the  reason being  that there  was standing ground nut crop  in the property on that date and DW-3 may not have parted with  possession. Holding  that the  judgments of the courts below  are perverse,  the learned  single  Judge,  on appreciation  of   the  facts,  held  that  the  plaintiff’s document Ex.A-1  was earlier,  that he obtained title to the suit property  and so entitled to a decree of declaration of title and possession of the property. 7.   The scope  of Section  100 of Civil Procedure Code even before the  amendment of the Section in 1976 has been neatly summarised in  Mulla’s Code  of Civil  Procedure (15th  Edn. vol. I) at page 703. It is stated therein as follows:      "The  section   even  as  it  stood      before its recent amendment allowed      a second appeal only on the grounds      set out in clauses (a), (b) or (c).      Therefore, whereas a Court of first      appeal is  competent to  enter into      questions of  fact and  decide  for      itself whether the findings of fact      by the  lower Court  are or are not      erroneous, a Court of Second appeal      was not  and is  not  competent  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

    entertain the  question as  to  the      soundness of  a finding  of fact by      the Court  below. A  second appeal,      accordingly, could  lie only on one      or the  other grounds  specified in      the                        section.      ......................"      "As held  in  Durga  Chowdhrani  v.      Jawahar Singh by the Privy Council,      there   is   no   jurisdiction   to      entertain a  second appeal  on  the      ground  of   erroneous  finding  of      facts, however  gross in error they      may seem  to be.  The same view has      been expressed  also by the Supreme      Court. No  doubt, a  second  appeal      lay where  there was  a substantial      error or  defect in procedure under      clause  (c),   but   an   erroneous      finding of fact is distinct from an      error  or   defect  in   procedure.      Accordingly,  where  there  was  no      error or  defect in  procedure, the      finding  of   the  first  appellate      Court upon  a question  of fact had      to be  regarded as  final, if  that      Court had before it evidence proper      for its consideration in support of      the finding,  ............ The mere      fact that the High Court would have      upon document  and evidence  placed      before the  Court of  first  appeal      come to  a different  conclusion is      no ground for a second appeal."      In Madamanchi Ramappa & Anr. v. Muthalur Bojjappa, 1964 (2) S.C.R.  p. 673,  speaking  for  a  three  Member  Bench, Gajendragadkar, J. summarised the law thus:      "The question  about the  limits of      the powers  conferred on  the  High      Court  in   dealing   with   second      appeals has been considered by High      Courts in  India and  by the  Privy      Council on  several occasions.  One      of the  earliest pronouncements  of      the Privy  Council on this point is      to be  found in  the case  of  Mst.      Durga Choudhrain.  In the  case  of      Deity   Pattabhiramaswami   v.   S.      Hanymayya, this  Court had occasion      to refer  to the  decision  of  the      Privy   Council    and    it    was      constrained   to    observe    that      "notwithstanding  such   clear  and      authoritative pronouncements on the      scope of  the provisions of s. 100,      C.P.C., some  learned Judges of the      High Courts are disposing of second      appeals  as   if  they  were  first      appeals.  This   introduces,  apart      from the  fact that  the High 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

    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, 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 and should not interfere      with findings of fact.      It appears  that  the  decision  of      this      Court       in      Deity      Pattabhiramaswamy,  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. According  to  the  learned      Judge, it  is open  to  the  second      appellate Court  to interfere  with      the conclusions of fact recorded by      the District  Judge not  only where      the said  conclusions are  based on      no evidence,  but  also  where  the      said  conclusions   are  based   on      evidence  which   the  High   Court      considers insufficient  to  support      them. In  other words,  the learned      Judge  seems   to  think  that  the      adequacy or sufficiency of evidence      to sustain  a conclusion of fact is      a  matter   of  law  which  can  be      effectively  raised   in  a  second      appeal. In  our  opinion,  this  is      clearly a misconception of the true      legal position.  The  admissibility      of evidence  is no doubt a point of      law, but  once it is shown that the      evidence on  which courts  of  fact      have  acted   was  admissible   and      relevant, it is not open to a party      feeling aggrieved  by the  findings      recorded by  the courts  of fact to      contend before  the High  Court  in      second   appeal   that   the   said      evidence  is   not  sufficient   to      justify the  findings  of  fact  in      question.  It   has   been   always      recognized that  the sufficiency or      adequacy of  evidence to  support a      finding of  fact is  a  matter  for      decision of  the court of facts and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

    cannot  be  agitated  in  a  second      appeal. Sometimes, this position is      expressed by  saying that  like all      questions of  fact, sufficiency  or      adequacy of  evidence in support of      a case is also left to the jury for      its  verdict.   This  position  has      always   been    accepted   without      dissent  and   it  can   be  stated      without   any    doubt   that    it      enunciates  what  can  be  properly      characterized  as   an   elementary      proposition.  Therefore,   whenever      this Court  is  satisfied  that  in      dealing with  a second  appeal, the      High Court  has, either unwittingly      and  in   a   casual   manner,   or      deliberately  as   in  this   case,      contravened the  limits  proscribed      by s.100,  it becomes  the duty  of      this Court  to intervene  and  give      effect to  the said  provisions. It      may be that in some cases, the High      Court  dealing   with  the   second      appeal is inclined to take the view      that what  it regards to be justice      or equity  of the case has not been      served  by  the  findings  of  fact      recorded by  courts of fact; but on      such occasions  it is  necessary to      remember that  what is administered      in courts  is justice  according to      law and considerations of fair play      and equity  however important  they      may be,  must yield  to  clear  and      express provisions  of the  law. If      in reaching its decisions in second      appeals, the High Court contravenes      the express  provisions of  section      100, it  would inevitably introduce      in such  decisions  an  element  of      disconcerting      unpredictability      which is  usually  associated  with      gambling; and  that is  a  reproach      which   judicial    process    must      constantly     and     scrupulously      endeavor to avoid."                          (pages 683-685)      In Dudh Nath Pandey (Dead) BY L. R’s. v. Suresh Chandra Bhattasali (Dead) by L.R’s., 1986 (3) S.C.C. 360, a Bench of this Court  held that  "High Court cannot set aside findings of fact  of first  appellate court  and come  to a different conclusion on reappraisal of evidence."      There are  innumerable  subsequent  decisions  of  this Court which  have held  that concurrent  findings of fact of trial court  and first  appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100  of Civil Procedure Code. (See: Smt. Kamala Devi Budhia &  Ors. v. Hem Prabha Ganguli & Ors., 1989 (3) S.C.C. 145; Smt.  Jahejo Devi & Ors. v. Moharam Ali, 1988 (1) S.C.C 372; P.Velayudhan  & Ors.  v. Kurungot  Imbichia Moidu’s son Ayammad and Ors., 1990 Supp. S.C.C. 9; etc. 8.   We are  of the  view,  that  in  interfering  with  the concurrent findings  of  facts  of  the  lower  courts,  the learned single  Judge of  the High  Court acted in excess of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

the jurisdiction  vested in  him under  Section 100 of Civil Procedure Code.  The learned  Judge  totally  erred  in  his approach to  the entire  question, and  in reappraising  and reappreciating the  entire evidence,  and in considering the probabilities of the case, to hold that the judgments of the courts  below  are  "perverse  and  that  the  plaintiff  is entitled to  the declaration  of title  to suit property and recovery of  possession. It is evident that the courts below found, on  the basis  of oral and documentary evidence, that Ex.B-2 sale deed obtained by the first defendant on 5.5.1967 is genuine  and valid,  and that  first defendant discharged the mortgage,  Ex. B-1, on 10.5.1967, took possession of the suit property and thereafter cultivated the same. The courts below were of opinion that Ex.A-1 cannot be accepted in view of the  contradictions in  the evidence  of  PW-1  and  PW-2 regarding the  payment of  consideration, and  none  of  the attestors to Ex. A-1 were examined. Laying stress on Ex.A-4, suit notice,  sent by  the plaintiff  to the first defendant and other circumstances, the courts also found that there is collusion between the plaintiff and the second defendant and so, Ex.A-1  purported to  have been  executed by  the second defendant in  favour of  the plaintiff  is not valid in law. These concurrent findings of facts of the courts below, were based on  oral and  documentary evidence. The learned Single Judge on  reappreciating the  evidence took the view that it was "not  probable" that  the document Ex.B-1-, "would have’ been executed  on 5.6.1967  in view  of  the  delay  in  the registration of  the document. In second appeal, the learned single Judge  of the High Court totally erred in making such an approach.  Besides,  the  learned  single  Judge  totally ignored the concurrent findings of the courts below that the first  defendant   discharged  the   mortgage,   Ex.B-1   on 10.5.1967, took  possession of  the property  and cultivated the same and the said finding was based on the oral evidence of DW-3,  the mortgagee  and independent witnesses, DW-4 and DW-5 scribe,  besides the  defendant,  DW-6.  There  was  no evidence contra. The concurrent findings of the court courts below  that  Ex.B-2,  sale  deed  in  favour  of  the  first defendant is  earlier in  point of  time and was genuine and valid is  a finding  of fact. Such a finding was not open to any challenge  in Second Appeal. The learned single Judge of the High  Court totally  misconceived  his  jurisdiction  in deciding the  second appeal under Section 100 of the Code of Civil Procedure  in the way he did. No question of law arose for consideration  before the learned single Judge. The sole question that  arose for  consideration was,  whether Ex.B2, sale deed,  in favour of the first defendant dated 5.5.1967, which is admittedly earlier in point of time to Ex.A-1 dated 5.6.1967, in  favour of  the plaintiff is genuine and valid. Both the  trial  court  as  well  as  the  appellate  Court, rightly, in  our opinion,  started with  dated 5.5.1967, was made on  that day  which is earlier to Ex.A1 dated 5.6.1967, and that  there was no evidence to off set or rebut the said presumption,  to  hold  that  Ex.B-2  was  not  executed  on 5.5.1967 as  pleaded by  the plaintiff.  On the  other hand, according to the courts below, the evidence available in the case reinforced  the aforesaid  presumption  and  positively pointed out  that Ex.B-2 was, in fact, executed, long before Ex.A-1. The  High Court  ignored such  crucial  aspects  and surmised that  it  was  "not  probable"  that  Ex.B-2  dated 5.5.1967 would  have been  executed on  that day  in view of "the delay"  in registration.  The approach  so made and the resultant   conclusion,    are   totally   unjustified   and unsustainable in law. 9.   We, therefore, set aside the judgment of the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

and allow  this appeal.  The judgments and decrees passed by the learned  Munsiff in  OS No.329 of 1967 dated 3.2.1969 as affirmed by  the learned Subordinate Judge of South Arcot in A.S. No.  109 of  1969 dated  26.3.1973 will stand restored. The appellant  shall be entitled to the costs in this appeal from the  respondents, inclusive  of Advocates’ fee which is quantified at Rs.5,000/-. The appeal is allowed with costs.