TMI Blog2004 (3) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmal 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 acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Court exercises its jurisdiction under the proviso to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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