TMI Blog2016 (10) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... idently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants’ suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation 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. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC. The reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside - appeal allowed. - C.A. 2875 OF 2010 - - - Dated:- 3-10-2016 - CHELAMESWAR,JASTI AND SAPRE,ABHAY MANOHAR, JJ. J U D G M E N T Abhay Manohar Sapre, J. 1. These appeals by special leave are filed by the appellant-defendant against the common judgment dated 21.08.2008 of the High Court of Judicature, Andhra Pradesh at Hyderabad in S.A. Nos. 1151 of 1998, 76, 167, 168 and 169 of 1999 whereby the learned Single Judge of the High Court allowed the appeals filed by the respondents-plaintiffs, in consequence, set aside the decree and common judgment dated 15.10.1998 of the Court of Additional District Judge, Kurnool in A.S. Nos.56, 57, 58 59 and 60 of 1997 dismissing the first appeals filed by the respondents herein. 2. Facts of the case need mention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to claim permanent injunction against the appellants from interfering in their possession over the suit-land. The respondents in substance claimed title over the suit-land by adverse possession against the Government alleging that their predecessor were in possession of the suit-land for the last 100 years and on their death, respondents continued to remain in possession throughout and has, therefore, perfected their title by being in adverse possession to the exclusion of all, including the Government as owners. 11. So far as second suit being O.S.No. 69 of 1994 is concerned, it was filed by the respondents against the appellant no.1 and APEB to challenge the notice dated 07.06.1990 issued by APEB for disconnecting the electric supply to the respondents structure. A relief of permanent injunction restraining the defendants (APEB) from giving effect to the notice was also prayed. 12. So far as the third suit being O.S.No. 71 of 1994 is concerned, the respondents filed this suit against the Municipality and the appellant no. 1 challenging therein the assessment made by the Municipality by which appellants names were entered in the register of Municipality in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the parties, without expressing any further opinion relating to the other aspects, this Court is inclined to set aside the Decrees and common judgment made by the Court of first instance and also the Decrees and judgments made by the appellate Court and remand these matters to the Court of first instance to record the evidence of P.W.4 in toto and also to permit the parties to let in further evidence relating to the identity of the property especially in the light of the admissions made by D.W.1 and record further findings if necessary permitting the parties to amend their respective pleadings and also setting additional issues as well and further permitting the parties to it in further evidence on such additional pleadings and additional issues as well which may arise for consideration in the peculiar facts and circumstances of the case. 17. Felt aggrieved, the appellants who are plaintiffs in their two civil suits and defendants in three civil suits filed by the respondents herein have filed these appeals by special leave. 18. Learned counsel for the appellants while assailing the legality and correctness of the impugned judgment urged four submissions. 19. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short CPC ) : (ii) whether the High Court was justified in admitting the respondents second appeal on the questions framed and if so whether the questions framed can be regarded as substantial questions of law arising out of the case; (iii) whether the High Court was justified in remanding the case to the trial court for de novo trial in all the five civil suits and (iv) whether the respondents were able to prove their title over the suit-land so also whether the appellants were able to prove the existence of relationship of landlord and tenant between the appellants and the respondents. 23. The scope of Section 100 of CPC while deciding the second appeal by the High Court has been the subject matter of several decisions of this Court and thus remains no more res integra. A reference to the two cases on this question would suffice. 24. A three-judge Bench of this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under: 9. The Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC 1314) the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It will, therefore, depend on the facts and circumstance of each case whether a question 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 . 25. Again in the case of Thiagarajan And Others vs. Sri Venugopalaswamy B. Koil And Others reported in 2004 (5) SCC 762, a two Judge Bench of this Court in paragraphs 17, 24, 25 and 26 observed as under: 17. Sub-section (5) of Section 100 CPC says that 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 a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. In the instant case, the High Court at the time of final hearing formulated five more questions of law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the admissions of D.W.I and the relevant documentary evidence, which establish that there was a sub-division of S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a Government poramboke land and the site of the defendant classified as a Darga Burial Ground Mosque , each distinct and different from the other? Admissions of D.W.I:- 20 Whether the Court below have failed to see that Ex.A.2 (Gift deed being a thirty year old document, the presumption under Section 90 of Evidence Act applies, both with regard to execution and attestation, and as such the opinion of the trial Court that it is suspicious document, is untenable and unsustainable in law? 3) Whether the lower appellate Court erred in law in not framing proper points for consideration, on the validity of Ex.A.2 gift deed and the sub- division of suit property S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C. and as such the Judgment of the lower appellate Court as a final Court of fact is vitiated by errors of law? 4) Whether the lower appellate Court has erred in law, in holding that Ex.A2 gift deed is invalid, because the property gifted is poramboke, when the Government itself (second defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that these findings were not in conflict with any provision of law governing the issue and that the findings were also not against the pleadings or evidence. In this view of the matter, in our view, these findings were not capable of being set aside by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC, rather they were binding on the High Court. 30. Thirdly, apart from what is held above, the questions formulated were neither debatable nor arguable and nor did they involve any question of law which could be said to arise in the case. In other words, sine qua non for admitting the second appeal was existence of substantial question of law in the case and therefore unless the questions framed were debatable, or/and arguable or/and involving any legal question, the High Court had no jurisdiction to formulate such questions treating them to be substantial question of law. Indeed the High Court had the jurisdiction under sub- Section (5) of Section 100 of CPC to examine at the time of hearing as to whether the questions framed were substantial questions of law or not and whether they arose out of the case, but the High Court failed to do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals. 36. We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court. 37. Indeed, it is clear from mere reading of the pleadings. The main case set up by the respondents for claiming title over the suit-land was founded only on the plea of adve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
