TMI Blog1996 (3) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to him by sale deed Ext. A-1 dated 5.6.1967 for Rs. 1,1007-, 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. B- 2). 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 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 li-ability of mortgagee, Chellian (DW-3) on 10.5.1967, took possession of prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's title to suit property and for recovery of possession. The Plaintiff was directed to deposit a sum of Rs. 6007- 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 collusren 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 on 3.6.1967 and the third paper was obtained on 27.5.1967 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng gourd 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 Code of Civil Procedure even before the amendment of the Section in 1876 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 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.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 Section 100 of the Code had not been July 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrent 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 Code of Civil Procedure. (See: Smt. Kamala Devi Budhia and Ors. v. Hem Prabha Ganguli and Ors. JT 1989 (3) SC 28 : 1989 (3) S.C.C. 145; Smt. Jahejo Devi and Ors. v. Moharam AH. JT 1987 (4) SC 728 : 1988 (1) S.C.C 372; P. Velayudhan and Ors. v. Kurungbtlmbichia Moidu's son Ayammad and Ors. : 1990 Supp. S.C.C. 9; etc. 11. 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 the jurisdiction vested in him under Section 100 of Code of Civil Procedure. The learned Judge totally erred in his approach to the entire question, and in reappraising and re-appreciating 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 obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, started with the normal and reasonable presumption that Ex. B-2 dated 5.5.1967, was made on that day which is earlier to Ex.A-1 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 Ext.B-2 was, in ; fact, executed, long before Ext.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. 12. We, therefore, set aside the judgment of the High Court 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 Sub- ordinate 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 Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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