Holding

The High Court cannot interfere with the factual findings of the first appellate court in a second appeal unless it frames a substantial question of law on the alleged perversity or lack of evidence.

Summary

Krishnan filed a suit for declaration and injunction claiming that a mortgaged land was sold to him by Ramayee (alias Lakshmi) through registered deeds, which the defendant alleged were forged. The trial court dismissed the suit, but the first appellate court reversed the decision, holding that Ramayee and Lakshmi were the same person, that the sale deed was proved, and that the burden of proving forgery rested on the defendant. The High Court, in a second appeal, set aside the first appellate judgment without framing a question of law on the factual finding that the two persons were identical. The Supreme Court held that under Section 100 of the Code of Civil Procedure the High Court may only decide on substantial questions of law that it frames, and it cannot re‑appreciate findings of fact of the first appellate court (Section 96 CPC) unless a specific question on perversity or lack of evidence is posed. Since no such question was framed, the High Court's interference was impermissible. Consequently, the Supreme Court set aside the High Court judgment and restored the first appellate court's decision.

Issues considered

Whether the High Court, exercising jurisdiction under Section 100 CPC, can interfere with the findings of fact recorded by the first appellate court under Section 96 CPC without framing a substantial question of law.
Whether the finding that Ramayee and Lakshmi are the same person is perverse or based on no evidence, warranting interference in the second appeal.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 96

Subjects

second appealCPC Section 100CPC Section 96findings of factsubstantial question of lawburden of proofproperty disputeforgery

Judgment

KRISHNAN A
v.
BACKIAM AND ANR.

SEPTEMBER 11, 2007

(A.K.MATHURANDMARKANDEYKATJU,JJ.l B

Code of Civil Procedure, 1908-s. JOO-Second appeal-Scope of-
Held: High Court in second appeal cannot interfere with finding of fact
recorded by First Appellate Court uls 96 CPC-Finding of fact though can C
be challenged in second appeal on the ground that the same is perverse or
based on no evidence-But not without framing question to that effect-In
the facts of the case, no such question was formulated by High Court-Hence
interference of the High Court with the finding of fact by First Appellate
Court, not permissible.
D
Appellant-plaintiff filed a suit for declaration and injunction against
respondent-defendant alleging that the land in question had been mortgaged
to him by the owner of the property 'R' (alia.s 'L'). Thereafter, the land was
sold to him by a sale deed. The sale deed was later rectified by another sale
deed. Defendant contested the suit alleging that the owner of the land was 'R'
and he is assisting her in cultivating the land; and that the three documents E
were forged. The suit was dismissed. First appeal was decided in favour of the
appellant holding that 'R' and 'L' are one and the same person; that the sale
deed was proved by PWs 3 and 1; and that the burden to prove the documents
as forged was on the defendant. High Court allowed the second appeal
thereagainst. Hence the present appeal.
F
Allowing the appeal, the Court

HELD: 1. High Court has practically acted as a First Appellate Court
and has re-appreciated the findings of fact of the Subordinate Judge which it
could not validly do in exercise of its jurisdiction under Section I 00 CPC. G
(Para 12] (905-8, CJ

2. Under the amended Section 100 CPC, the High Court has to frame
~ substantial questions of law and can decide the second appeal only on those
questions framed. A perusal of the questions framed shows that no question
~1 H
902 SUPREME COURT REPORTS [2007] 9 S.C.R.

A of law was framed as to whether the finding of fact of the First Appellate Court
).
that 'L' and 'R' are one and the same person, is based on no evidence or is
perverse. [Para 10) [904-F, G]

3. First Appellate Court under Section 96 CPC is the last court of facts.
The High Court in second appeal under Section 100 CPC cannot interfere
B with the findings of fact recorded by the First Appellate Court under Section
96 CPC. No doubt, the findings of fact of the First Appellate Court can be
challenged in second appeal on the ground that the said findings are based on
no evidence or are perverse, but even in that case a question of law has to be
t
formulated and framed by the High Court to that effect. In the present case
C no question was framed by the High Court as to whether the finding of the
First Appellate Court that 'R' and 'L' are one and the same person, is a finding
based on no evidence or is perverse. Hence the findings of the First Appellate
Court that 'R' and 'L' are one and the same person, could not have been
interfered with by the High Court. (Para 11) (904-G; 905-A, BJ

D CIVIL APPELLATE JURISDICTION :·civil Appeal No. 3713 of2001.

From the Judgment and Order dated 31.1.2000 of the High Court of
Madras in Second Appeal No. 1927 of 1999.

P. V. Yogeshwaran, M.A. Chinnasamy, H.B. Chauhan and K. Kumar for
E the Appellant.

S.R. Sharma and S. Srinivasan for the Respondents.

The Judgment of the Court was delivered by

F MARKANDEY KATJU, J. I. This appeal has been filed against the 1
impugned judgment of the Madras High Court dated 3 I. l .2000 in Second
Appeal No.1927of1999.

2. We have heard learned counsel for the parties and perused the
record.
G
3. The plaintiff-appellant Krishnan filed a suit for declaration and
injunction against the respondent-defendant alleging that the property in
dispute had been earlier mortgaged to him on 30.9.1988 and then sold to him
by Ramayee (alias Lakshmi) by registered sale deed dated 25.9.1989 which
was also rectified by another registered sale deed dated l 0.9 .1990. It was
H alleged in the suit that an attempt was being made to dispossess the plaintiff
KRISHNAN v. BACKIAM [MARKANDEY KA TJU, J. ] 903
and hence injunction may be granted in his favour. A
4. The defendant filed a written statement in the suit in which it was
contended that Ramayee had neither executed the registered mortgage deed
dated 30.9.I 9:1!, nor the registered sale deed dated 25.9.1989, nor the rectification
deed dated 10.9.1990. It was alleged in the written statement that on the
request of the owner of the land, Ramayee, the defendant is assisting her in B
l

cultivating the said property under her instructions and plaintiff has no right
over the property. It was alleged by the defendant-respondent that the mortgage
deed dated 30.9.1988, sale deed dated 25.9.1989 and the rectification deed
dated 10.9.1990 alleged to have been executed by Ramayee, are in fact forged
documents.
c
5. The trial court dismissed the suit, against which the plaintiff-appellant
filed a first appeal in the court of subordinate Judge, Sivaganga, which was
allowed by the judgment dated 13.4.1999. In this judgment the First Appellate
Court held:

"It appears from the evidences of the plaintiffs witnesses that D
Lakshmi and Ramayee are one and the same persons. Once the plaintiff
proves his case through his witnesses, the burden of proof shifts to
the defendant. It is for the defendant to prove that Exhibit-A4 sale
deed is a forged document or a created one. The law does not require
attestation of sale deed as a compulsory one. Section 54 and 59 of E
Transfer of Properties do not speak about compulsory attestation.
When law does not require compulsory attestation of a document,
such unattested document may be proved as per the provisions of
Indian Evidence Act. Section 68 of Indian Evidence Act has no
application for sale deed. Section 68 of the Indian Evidence Act is F
applicable only to the cases where the documents are required to be
attested in law."

6. Thus, although the mortgage deed dated 30.9.1988, the sale deed
dated 25.9.1989 and the rectification deed dated 10.9.1990 are alleged to have
been executed by Lakshmi, it has been found by the First Appellant Court G
that Lakshmi and Ramayee are one and the same person. Since admittedly
Ramayee was the owner of the property in dispute, the sale deed dated '
25.9.1989 alleged to have been executed by Lakshmi, Exhibit-A4, was in fact
executed by Ramayee, since Lakshmi and Ramayee are the same person.
Hence because of the sale deed, title to the property passed to the plaintiff-
appellant. H
904 SUPREME COURT REPORTS [2007] 9 S.C.R

A 7. The First Appellate Court also held that the burden of proving that
).
the sale deed Exhibit-A4 was a forged document on the defendant but he did
not discharge his burden. It was further held that the sale deed was proved
by PW3 as well as by PW I. The First Appellate Court also held that the
plaintiff is in possession of the property in dispute and the sale deed dated
25.9.1989 was valid.
B
8. Against the judgment of the First Appellate Court the defendant-
respondent filed a. second appeal before the High Court which has been
allowed. This appeal by special leave has been filed against the said judgment
of the High Court dated 31.1.2000.
c 9. A perusal of the judgment of the High Court shows that the High
Court formulated the following three questions as substantial questions of
law:

"I. Whether the Lower Appellate Court has not committed an error
of law in placing the burden of proof upon the second appellant
D about the execution and registration of documents under Exx.A-
3 to A-5? \....

2. Whether the Lower Appellate Court has not committed an error
of law in decreeing the suit when the respondent/plaintiff has
failed to prove that the documents under Exx.A-3 to A-5 were
E executed and registered by the second appellant? And
3. Whether the Lower Appellate Court has not committed an error
of law in holding that the respondent is in possession and
enjoyment of the suit property in the absence of any materials
on record?
F
I 0. Under the amended Section I 00 CPC the High Court has to frame
substantial questions of law and can decide the second appeal only on those
questions framed. A perusal of the questions framed shows that no question
of law was framed as to whether the finding of fact of the First Appellate.
G Court that Lakshmi and Ramayee are one and the same person, is based on
no evidence or is perverse.

11. It may be mentioned that the First Appellate Court under Section 96
CPC is the last court of facts. The High Court in second appeal under Section
I 00 CPC cannot interfere with the findings of fact recorded by the First
H Appellate Court under Section 96 CPC. No doubt the findings of fact of the
KRISHNAN v. BACKIAM [MARKANDEY KA TJU, J. ] 905

First Appellate Court can be challenged in second appeal on the ground that A
the said findings are based on no evidence or are perverse, but even in that
case a question of law has to be formulated and framed by the High Court
to that effect. In the present case no question was framed by the High Court
as to whether the finding of the First Appellate Court that Ramayee and
Lakshmi are one and the same person, is a finding based on no evidence or
is perverse. Hence the findings of the First Appellate Court that Ramayee and B
Lakshmi are one and the same person, could not have been interfered with
by the High Court.

12. A perusal of the judgment of the High Coun; shows that the High
Court has practically acted as a First Appellate Court and has re-appreciated C
1

the findings of fact of the learned Subordinate Judge which it could not
validly do in exercise of its jurisdiction under Section I 00 CPC.

13. In the circumstances, we set aside the impugned judgment of the
High Court and restore the judgment of the First Appellate Court dated
13.4.1999. D
...; 14. The Appeal is allowed. There is no order as to costs.

K.KT. Appeal allowed.