ITEM NO.104                 COURT NO.10               SECTION XIA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

                   CIVIL APPEAL NO(s). 6588 OF 2002

RAMAVILASOM GRANDHASALA REP.BY SECY.&ANR             Appellant (s)

                     VERSUS

N.S.S. KARAYOGAM & ANR.                              Respondent(s)

(With office report )

Date: 27/11/2008  This Appeal was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE MARKANDEY KATJU         HON'BLE MR. JUSTICE AFTAB ALAM

For Appellant(s) Mr. P. Sureshan, Adv.                      Mr. R. Sathish,Adv.

For Respondent(s) Mr. TLV Iyer, Sr.Adv.                      Mr. Ramesh Babu M.R.,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

  The appeal is allowed with no order as to costs .

[ Usha Bhardwaj ]             [ Indu Satija]   Court Master               Court Master

    Signed order is placed on the file.

              IN THE SUPREME COURT OF INDIA                                                      

              CIVIL APPELLATE JURISDICTION

       CIVIL APPEAL  NO.6588 OF 2002        

Ramavilasom Grandhaqsala rep.by       .....Appellants Secy. & Anr.

Versus

N.S.S. Karayogam              ....Respondents

                                O R D E R    

Heard learned counsel for the parties and perused the record.

This  appeal  has  been filed  against  the  impugned judgment  of  the

Kerala High Court dated 1st October, 2001 in Second Appeal No.1155 of 1989-

D.  The respondent in this appeal filed a suit alleging himself to be the owner of

the  property  in  dispute.   It  is  not  disputed  that  the  original  owner  of  the

property was one Velayudhan  Pillai Sivarama Pillai.  He executed a gift deed

in favour of Yuva Samithi on 19-08-1114 Malayalam Era 1939 A.D.  There was

a provision in  the  gift  deed (Exhibit  A1)  to the effect  that  if  Yuva Samithi

becomes defunct the title and possession of the property covered by the gift

deed would revert to the owner.

The  Trial  Court  and  First  Appellate  Court  held  that  the  Yuva

Samithi  had  not  become  defunct.   The  clear  finding  of  fact  of  the  First

Appellate Court in its judgment dated 28th July, 1988, was that there was no

evidence to show that the Yuva Samithi had become defunct and it was still

functioning in a different name i.e. United Sports Club which was attached to

Ramavilasom  Grandhasala.   This  is  a  finding  of  fact  and  could  not  have

ordinarily been interfered with in Second Appeal by the High Court.

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It is well settled that the High Court in Second Appeal can  interfere

with the judgment of the First Appellate Court only if there is an error of law

and not an error of fact.  Ordinarily, the First Appellate Court under Section

96 C.P.C. is the last Court of facts.  However, there is very limited scope for the

High Court to interfere with a finding of fact in a Second Appeal, namely, if the

finding of fact was based on no evidence or is totally perverse.

In this case, the High Court has interfered with the finding of fact of

the  First  Appellate  Court  that  the  Yuva  Samithi  and  Ramavilasom

Grandhasala are different entities.   We are of the opinion that even if the High

Court was of the opinion that the finding of fact of the First Appellate Court on

this point  was based on no evidence or was  perverse,  at  the most the  High

Court could have  remitted the matter to the First Appellate  Court  for  a

fresh  decision, in accordance  

with law, but it could not itself acted as a First Appellate Court under Section

96 of the Civil Procedure Code, which it appears to have done.   

It  may be mentioned that  the  First  Appellate  Court  has  based  its

finding that the  Yuva Samithi is still functioning in a different name on the

basis of Exhibits B-1 to B-7.  In our opinion, it was incumbent upon the High

Court, if it wanted to interfere with this finding to examine Exhibits B-1 to B-7

but  it  does not  seem to have done so.   Hence, we direct the High Court to

reconsider the question whether the finding of the First Appellate Court that

the Yuva Samithi has not become defunct  and it is functioning in a different  

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name is based on no evidence or is perverse.  The High Court shall specifically

deal with Exhibits B-1 to B-7 and other relevant material in support of the said

finding of the First Appellate Court.  All questions of law are left open to the

High Court.  The impugned judgment of the High Court is set aside and the

case is remanded to the High Court to give a fresh decision in accordance with

law and in the light of the observations made above.  We hope and trust that

the High Court will decide the appeal expeditiously, since the matter has been

pending for long.

If the High Court finds that the findings of the First Appellate Court

that the Yuva Samithi is still functioning is based on no evidence or is perverse

then  it  should  remand  the  matter  to  the  First  Appellate  Court  for  a

reconsideration of this question.  The appeal is allowed.

There shall be no order as to costs.

        .................J.         [MARKANDEY KATJU ]   

                                   .................J.                                                          

[AFTAB ALAM]         NEW DELHI,       NOVEMBER 27, 2008.