Holding

The High Court exceeded its jurisdiction by framing new substantial questions of law and re‑appreciating evidence, rendering its judgment illegal.

Summary

The appellants filed a suit for declaration of title and permanent injunction over ancestral A and B Schedule properties, claiming inheritance rights. The trial court dismissed the suit, but the first appellate court allowed it, finding the appellants entitled to the properties. The respondents appealed to the Madras High Court under Section 100 of the CPC. At admission, a single judge framed a substantial question of law concerning the division of shares under Hindu law. Later, another single judge, at the time of judgment, framed a fresh set of substantial questions and re‑appreciated the evidence, overturning the lower court's findings and holding that the appellants were not entitled to the property. The Supreme Court held that the High Court exceeded its jurisdiction by formulating new substantial questions without recording reasons, by ignoring the question framed at admission, and by re‑appreciating evidence, which is prohibited in a second appeal under Section 100 CPC. Consequently, the High Court’s judgment was set aside and the lower appellate court’s decree restored.

Issues considered

Can a High Court frame fresh substantial questions of law at the time of delivering judgment in a second appeal under Section 100 CPC?
Must the High Court entertain only the substantial question of law framed at the admission of the second appeal?
Is the High Court authorized to re‑appreciate evidence and substitute the findings of fact of the lower appellate court in a second appeal?
Is the High Court required to record reasons for formulating new substantial questions and give notice to the opposite party?

Legislation cited

Subjects

Section 100 CPCsubstantial question of lawsecond appealjurisdictionre‑appreciation of evidenceinheritanceHindu Succession Actproperty titlecourt procedure

Judgment

.
THIAGARAJAN AND ORS. A
v.
SRI VENUGOPALASWAMY B. KOIL AND ORS.

MARCH 16, 2004

[R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.] B
-......___

Code of Civil Procedure, I 908-Section I 00-Single Judge framing
substantial question of law at the time ofadmission ofsecond appeal-Another

- Single Judge framing another set of substantial questions of law at the time C
of rendering of the judgment without recording reasons-Correctness of-
Held, not correct-Jurisdiction bf the High Court is confined to entertain the
substantial question of law. specifically raised in the memorandum of appeal
and formulated by the High Court at the time of admission.

Findings recorded by Appellate court after going into the entire D
evidence-High Court re-appreciating the evidence in second appeal-
Correctness of-Held, not correct-High Court exceeded its jurisdiction under
section I 00 CPC-High Court cannot substitute its own findings when two
views are possible.

The first and second appellants instituted a suit for declaration of E

-- title and for permanent injunction in respect of A Schedule properties and
for possession of B schedule properties. The appellants contended that the
suit properties were ancestral properties and they were entitled to them
by virtue of survivorship and inheritance on the death of the second
appellant's husband. The defendants contended that the grand father of F
the first appellant had only two wives and not three wives as contended

-- by the first appellant; that the first appellant's grandmother was not the
third wife but a concubine and hence the father of the first appellant was
not a legitimate son and therefore had no right, title or interest on the
suit pr<'perties; that the suit properties devolved on the two widows on
the death of the grandfather; that, by family arrangement, the suit G
properties were in possession of one of the two widows; that she had gifted
the suit properties to her brother's daughter who gifted them to the first
respondent. The trial court dismissed the suit of the ap_pellants.

The first appellate court allowed the appeal of the appellants. The
12m H
1230 SUPREME COURT REPORTS (2004] 2 S.C.R.

A respondents filed a second appeal before High Court. Sin_gle Judge of the
High Court ~t the time of admission of the second appeal formulated a
substantial question of law. Another Single Judge of the High C()urt who
finally heard the matter framed a fresh set of substantial questions of law
after hearing arguments from both the sides and in the course of rendering
the judgment. The Single Judge allowed the second appeal of the
B respondents holding that the grandmother of the first appellant was not ,
'
the legally wedded wife and hence the appellants were not entitled to the
suit property by survivorship and inheritance.

--
In appeal to this Court, the appellants contended that the Single
C Judge of the High Court, who heard the arguments and delivered the
judgment, erred in framing fresh set of su~stantial questions of law at the
time of rendering the judgment in the second appeal contrary to Section
100 CPC; that the Single Judge has failed to consider the substantial
question of law framed by another Single Judge at the time of admission
of the second appeal; that they were not given opportunity to answer the
D questions of law framed at a later stage; that the Single Judge has not
recorded his reasons for framing a fresh set of questions of law by ignoring
the questions already formulated; that the High Court in second appeal
cannot make a roving enquiry into the facts by examining the evidence
afresh to upset the findings of fact rendered by the first appellate court;
E and that the High Court has looked into only portions of the evidence and
not the entire evidence while seeking to disturb the factual findings
rendered by the first appellate court.

Allowing the appeal, the Court

HELD: 1. The High Court has miserably failed to record the reasons
F
for formulating the other substantial questions of law. The Single Judge
of the High Court has considered only the questions formulated by him
at the time of final hearing and has not touched the substantial question
of law formulated at the time of admission of second appeal. The
jurisdiction of the High Court is confined to entertain only such appeals
G as involved substantial question of law specifically set out in the
memorandum of appeal and formulated by the High Court Since the High
Court has not adverted to the substantial question of law framed at the
time of admission, the High Court has committed a patent error in
f
disposing of the second appeal. A perusal of the fresh set of questions
H framed by the High Court at the time of final hearing cannot be termed
THIAGARAJAN i·. V.B. KOIL 1231

to be substantial questions of law in contrast to mere questions of law as A
contemplated under Section 100 CPC. The existence of a substantial
question of law is a sine qua non for the exercise of the jurisdiction under
the amended provisions of Section 100 CPC. [1238-B-D; 1240-B)

Kshitish Chandra Purkait.v. Santosh Kumar Purkait and Ors., (1997} 5
sec 438, relied on. B
-
J
2.1. The High Court has brushed aside the decision of the first
appellate court which had become final and is binding on the parties and
which contained certain findings which are relevant to decide the instant
case. There are certain instances where the High Court has committed C
an error and re-appreciated the evidence. The High Court has erred in
holding that the appellants have failed to establish their title to the suit
property evidently without appreciating the evidence on record in its
proper perspective by making only reference to portions of evidence
having once decided to re-appreciate the evidence. The High Court ought
to ha've examined the entire evidence both oral and documentary instead D
of only a portion thereof especially while deciding to look into and re-
appreciate the evidence despite the limited scope under Section 100 CPC.
The Single Judge of the High Court has exceeded his jurisdiction in
reassessing, re-appreciating and making a roving enquiry by entering into
the factual arena of the case which is not the one contemplated under the E
limited scope of jurisdiction of a second appeal under Section 100 CPC.

- [1240-F-G; 1241-D-G-H; 1242-AJ

2.2. The lower appellate Court fairly appreciated the evidence and
arrived at a conclusion that the suit was to be decreed and that the
appellants are entitled to the relief as prayed for. Even assuming that F
another view is possible on a re-appreciation 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.
[1242-B)

2.3. The approach of the High Court was not proper. It is the G
obligation of the Courts of law to further the clear intendment of the
legislature and not frustrate it by excluding the same. It is settled law that
where findings of fact by the lower appellate Court are based on evidence,
the High Court in second appeal cannot substitute its own findings on re-
appreciation of evidence merely on the ground that another view was
possible. Hence, the High Court has exceeded its jurisdiction in interfering· H
1232 SUPREME COURT REPORTS [2004] 2 S.C.R.

A with the findings of the final court of fact. (1242-C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1553 of
1999.

From the Judgment and Order dated 28.7.98. of the Madras High Court
B in S.A. No. 2147 of 1985.
Prabhakar Rao and Ms. Revathy Raghavan for the Appellants.

The Judgment of the Court was delivered by

C DR. AR. LAKSHMANAN, J. The above appeal was filed by the
plaintiffs against the final judgment and order dated 28.07 .1998 passed by
---
the High Court of Judicature at Madras in S.A. No. 2147 of 1985 allowing
the same and reversing the judgment dated 14.09.1984 passed by the learned
Subordinate Judge, Tiruvallur in A.S. No. 21 of 1983 and restoring the
judgment dated 21.01.1981 passed by the learned District Munsif, Poonamallee
D in O.S. No. 1459 of 1973.

The brief history of the case is as follows:-

The appellant Nos. 1 and 2 instituted the suit O.S. No. 1459 of 1972
against one Ganesan, Munuswami and the first respondent herein praying for
E declaration of title in respect of the A Schedule property and for permanent
injunction in respect thereof and for possession of the B Schedule property.
It was contended that the suit property measuring 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
F 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
G 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
H and partition as between the first appellant and appellant Nos. 3 and 4,

l
THIAGARAJAN v. V.B. KOIL [DR. AR. LAKSHMANAN. J.J 1233

appellant Nos. l and 2 became entitled to the suit A Schedule property and A
that in a portion thereof measuring 10 feet X 15 feet one Muniswami tresp~sed
and put up a thatched structure thereon and the said Muniswami had been
residing in the said hut after trespass which had been done about two years
prior to the present suit and that the property trespassed has been described
as B Schedule property. B

- On these and among other allegations, the appellant Nos. l and 2
prayed for the aforesaid relief.

Ganesan and Munuswami who were arrayed as defendant Nos. I and

- 2 filed a written statement contending that the suit property had not been C
described properly and that Munian, the grandfather of the first appellant had
two wives, namely, Yengachari Muniammal and Manali Muniammal and that
the said Munian did not have three wives and that the first appellant's father's
mother was not one of the wives of Munian as she was not married to him
and that she was only a concubine and that Kannan the father of the appellant
was not a legitimate son and, therefore, he had no manner, right, title interest D
or possession of the suit properties at any time and that Munian, the grandfather
of the first appellant was in exclusive possession of the suit properties and
on his death his two widows succeeded as his only heirs and as per the family
arrangement as between them the suit properties was allotted to Yengachari ::.?
Muniammal and that she was in possession and enjoyment in her own right
as full owner and that the appellants and/or their father had no right, title or E

- interest in the suit properties and that the said Muniammal had dealt with the
property as absolute owner thereof and had registered settlement deed dated
0 l.08.1961 in favour of her brother's daughter Pavalakodi Ammal and that
she had been in possession and enjoyment as full owner from the date of
settlement and that the said Pavalakodi Ammal had executed a gift deed in F
favour of the first respondent herein of which Gane~an (D-1) was a trustee
and that he had been put in possession of the suit property on the date of the
gift deed as trustee of the first respondent herein and that Muniammal had
also joined the execution of the gift deed by way of abundant caution and
that Ganesan had allowed Muniswami (D-2) to occupy the hut as a tenant
and on these among other allegations prayed for dismissal of the suit. G
The learned District Munsif, Poonamallee, after framing the necessary

-- issues, tried the same and held that Yengachari Muniammal 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 H
1234 SUPREME COURT REPORTS (2004] 2 S.C.R.

A
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
B A.S. No. 21 of 1983 on the file of the Subordinate Judge, Tiruvallur who
heard t~e appeal held that in view of the decision in C.R.O.P. No. 20of1962
there was no doubt that Kannan, the father of the first appellant was,,the
legitimate son ofMunian and that no documents had been produced to establish
that the suit property was the self acquisition of Munian and that the settlement
C 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 acquired title. by adverse
possession and that the appellant had established that they are entitled to 3/
D 4th share which Kannan, the father of the first appellant was entitled to on
the death of Munian and that the respondents herein were entitled to the
remaining I /4th share which Yengachari Muniammal was entitled to and that
the appellants are entitled to possession to B Schedule property. On these
findings, the learned Subordinate Judge allowed the appeal and thereby set
E aside the judgment passed by the learned District Munsif.

Aggrieved by the appeal being allowed, the respondents herein preferred
a Second Appeal on the file of the High Court at Madras. In the memorandum
of grounds of second appeal dated 08.10.1985, the respondents herein set
forth the grounds as well as raised substantial questions of Jaw which according
F to them arose for consideration in the Second Appeal. We have perused the
copy of the memorandum of grounds of Second Appeal filed before the High
Court, Madras filed and marked as Annexure P-3 herein and also the second
appeal records.

The learned single Judge of the Madras High Court (S. T. Ramalingam,
G J.) at the time of admission of the second appeal formulated the following
substantial question of law:-

"Whether the respective shares of late Munian were correctly
determined in accordance with the principles of Hindu Law and the
Hindu Succession Act."
THIAGARAJAN v. V.B. KOIL [OR. AR. LAKSHMANAN. J.] 1235
However, another learned single Judge - S.M. Sidickk, J. who finally A
heard the second appeal framed a fresh set of substantial questions of law for
consideration after hearing the arguments advanced on both sides and in the
course of rendering the judgment:-

(l) Whether Murivi, mother of Kannan, was the legally wedded
wife of one Munian and whether her marriage with Munian is B
...-.- valid under law?
(2) Whether Kannan (father of plaintiffs 1, 3 and 4 and husband of
2nd plaintiff) was born to Munian and Murivi out of their lawful
wedlock?
(3) Whether the plaintiffs became entitled to the plaint A schedule c
property by virtue of survivorship and inheritance on the death
of Kannan, who is the father of plaintiffs 1, 3 and 4 and husband
of the 2nd plaintiff as alleged in para 3 of the plaint?
(4) Whether the Respondents/plaintiffs are entitled to the reliefs of
declaration and permanent injunction in respect of plaint A D
schedule property and for delivery of vacant possession of the
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. l to 5 and E
--...- held that Muruvi, mother of Kannan and grandmoth~f 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 F
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 tum 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 G
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 by the learned Munsif.

This Court granted leave on 15.03.1999.
H
1236 SUPREME COURT REPORTS (2004] 2 S.C.R.

A We heard Mr. V. Prabhakar, learned counsel appearing for the appellants.
Though all the respondents appeared before the High Court did not chose to
enter appearance in this Court, in spite of the due service ~f notice on all of
them. Mr. V. Prabhakar took us through the entire pleadings the judgments
rendered by all the three courts. Mr. Prabhakar advanced arguments on four
contentions. They are :
B
I. The learned single Judge of the High Court who heard the second -....-..
appeal framed a fresh set of substantial questions of law for
consideration after hearing the arguments advanced on both sides
and in the course of rendering the judgment. According to him,

c the High Court could not frame questions of law at the time of
rendering the judgment in the second appeal especially when
such a procedure is not contemplated under Section 100 of the
~
-·
Civil Procedure Code.
2. The learned single Judge who disposed of the second appeal has
considered the substantial questions of law framed at the time of
D hearing and. rendering the judgment and has failed to consider
the substantial question of law framed by another learned single
Judge at the time of admission.
3. It was submitted that the opposite party that is the appellants
hereil)/plaintiffs was not put on notice and be given a fair and
E proper opportunity when the High Court seeks to exercise
jurisdiction under the proviso to Section 100 of C.P.C. by ~

formulating questions of law at a later stage. It was further
contended that the High Court while disposing of the second
appeal and rendering the judgment has not r.ecorded any reasons
for formulating a fresh set of questions of law by ignoring the
F
questions already formulated in the memorandum of the grounds
of second· appeal which thus already formulated by the Court, if
any.
4. The High Court hearing a second appeal ·under Section I 00
C.P.C .. could not make a roving enquiry into the facts by
G
examining the evidence afresh to upset the findings of fact
rendered by the first appellate Court. It was further submitted
that the High Court has looked into only portions of the evidence
:and not the entire evidence while seeking to disturb the factual
........
'-.__

findings rendered by the first appellate Court. '""""
H
THIAGARAJAN v. V.B. KOIL [DR. AR. LAKSHMANAN. J.] 1237
According to Mr. Prabhakar, the questions that were framed under A
Section 100 C.P.C. could not be mere questions of law but substantial questions
of law as contemplated under the said provision.

In support of the above contention Nos. l to 3, Mr. Prabhakar strongly
placed reliance in the case of Kshitish Chandra Purkait v. Santosh Kumar
Purkait and Ors., [1997] 5 sec 438. B
Section l 00 of the C.P.C. reads thus:-

"(l) Save as otherwise expressly provided in the body of this Ccide
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 C
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.
D
(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
E
respondent shall, at the hearing of the appeal, be allowed to argue
that the case does not involve such question:

Provided 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 F
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 memorandum of appeal filed by the appellant
have precisely stated the substantial question of law involved in the appeal
among other grounds. The High Court was satisfied that a substantial question G
of law was involved in this case and formulated the said substantial question
at the time of admission of the appeal on 26.12.1985 which has been extracted
in paragraphs above .
• Clause 5 of Section 100 C.P.C. says that the appeal shall be heard on
the question so formulated and the respondent shall at the hearing of the H
1238 SUPREME COURT REPORTS (2004) 2 S.C.R.

A 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 fonnulated by
it if it is satisfied that the case involves such questi_on. In the instant case, the
B High Court at the time of final hearing fonnulated five more questions of law
as extracted above after hearing the counsel for both sides have miserably
failed to record the reasons for fonnulating the other substantial questions of
law.

C We have perused the entire judgment. The learned single Judge of the
High Court has considered only the questions formulated by him at the time
of final hearing and has not touched the substantial question of law fonnulated
at the time of admission of second appeal. The jurisdiction of the High Court
is now confined to entertain only such appeals as involved substantial question
of law specifically set out in the memorandum of appeal and fonnulated by
D the High Court. Since the High Court has not adverted to the substantial
question of law framed at the time of admission, the High Court has committed
a patent error in disposing of the second appeal. It was argued by learned
counsel for the appellant that the High Court while fonnulating substantial
questions of law at a later stage and while doing so has not put on notice the
opposite party and has given a proper and fair opportunity to meet the same
E which in the instant case had not been 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 tenned 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
F 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 substaQtial question of Jaw and not mere question of law; (b}
reasons for pennitting the plea to be raised should also be recorded; (c) it ha$
a duty to fonnulate the substantial question of law and to put the opposite
party on notice and give fair and pr~per opportunity to meet the point; (d)
G 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 fonnulate the substantial question oflaw involved in the case even
H. at the initial stage; and (b) th.at in (exceptional) cases, at a later point
THIAGARAJAN v. V.B. KOIL [DR. AR. LAKSHMANAN. J.] 1239

of time, when the Court exercises its jurisdiction under the proviso to A
sub-section (5) of Section l 00 CPC in formulating the substantial
question of law, the opposite party should be put on notice thereon
and should be given a fair or proper opportunity to meet the point.
Proceeding to hear the appeal without formulating the substantial
question of law involved in the appeal is illegal and is an abnegation B
or abdication of the duty cast on court; and even 'lftc~ the formulation

- of the substantial question of Jaw, if a fair or proper opportunity is
not afforded to the opposite side, it will amount to denial of natural
justice. The above parameters within which the High Court has to
exercise its jurisdiction under Section l 00 CPC should always be

-- borne in mind. We are sorry to state that the above aspects are seldom
borne in mind in many cases and second appeals are entertained and/
C
or disposed of, without conforming to the above discipline.

In the light of the legal position stated above, we are of the view
that the High Court acted illegally and in excess of its jurisdiction in
entertaining the new plea, as it did, and consequently in allowing the D
second appeal. Even according to the High Court, the point urged on
behalf of the appellant was only a "legal plea" though no specific
_} plea was taken or no precise issues were framed in that behalf. The
High Court failed to bear in mind that it is not every question of law
that could be permitted to be raised in second appeal. The parameters E
within which a new legal plea could be permitted to be raised, are
specifically stated in sub-section (5) of Section 100 CPC. Under the
proviso, the Court should be "satisfied" that the case involves a
"substantial question of law" and not a mere "question of law". The
reason for permitting the substantial question of law to be raised,
should be "recorded" by the Court. It is implicit therefrom, that on F
compliance of the above, the opposite party should be afforded a fair
or proper opportunity to meet the same. It is not any legal plea that
could be raised at the stage of second appeal. It should be a substantial
question of law. The reasons for permitting the plea to be raised
should also be recorded. Thereafter, the opposite party should be
given a fair or proper opportunity to meet the same. In the present G
case, as the extracts from the judgment quoted hereinabove would
show, the High Court has totally ignored the mandatory provisions of
Section 100 CPC. The High Court proceeded to entertain the new
>
plea and rendered its decision without following the mandatory
provisions of Section l 00 CPC. On this short ground, we are of the H
1240 SUPREME COURT REPORTS [2004] 2 S.C.R.

A
·•
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 Rs. 10,000."

The existence of a substantial question of law is thus the sine qua non
B for the exercise of the jurisdiction under the amended provisions of Section
JOO CPC. The above judgment squarely applies to the facts and circumstance~
of the instant case. Thus, we answer the legal contention Nos. I to 3 in favour
of the appellants/plaintiffs and against the respondents/defendants.

C Contention No. 4:
It was submitted by Mr. Prabhakar, learned counsel for the appellants
-
that the High Court hearing a second appeal under Section I 00 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
b appellate court. Our attention was drawn to the various passages from the
judgment of the High Court and in comparison with the judgment rendered
by the first appellate Court. On a reading of both the judgments, we are
unable to convince ourselves that the High Court has looked into only portions
of evidence and not the entire evidence while seeking to disturb the factual
findings rendered by the first appellate Court. The learned Subordinate Judge,
E 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 document had been produced to
establ!sh that the suit property was the self~acquisition ofMunian and that the
settlement deed executed by Yengachari Muniammal referred to the property
F as being ancestral and that the family arrangement pleaded by virtue of
which the suit properties was said to be allotted to Yengachari Muniammal
had also not been proved.

In this context, the High Court has brushed aside the decisions rendered
by a competent Court when such decision is marked as an Exhibit Al and
G the decision which had become final and is binding on the parties and which
contained certain findings which are relevant to decides the instant case. We
.can also refer to certain other instances where the High Court has committed
an error and re-appreciated the evidence. The learned Judge of the High
Court erred in holding that the plaint does not state that Kannan, the father
of the appellant Nos. 1,3 and 4 and husband of second appellant is a legitimate
H son of Munian and his wife Muruvi evidently overlooking the dispute as to
THIAGARAJAN v. V.B. KOIL [DR. AR. LAKSHMANAN, J.] 1241

the status of Kannan was raised in the written statement filed by the A
respondents and not prior to the same. The High Court also has failed to note
that in view of the defence taken by the respondents regarding the existence
of more than one· wife for Munian the ancestor of the appellants were
compelled to give details of the wives. of Munain during the course of the
evidence and raised the same at the stage .of arguments. Likewise, the High B
Court has exceeded its jurisdiction vested in it holding that the evirience of
P.W. I is discrepant and far from being satisfactory and not entitled to
acceptance especially when the first appellate Court which is the final court
of fact had appreciated the evidence and rendered its decision. Again the
High 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 C
evidence has been accepted by the final Court of fact. The High Court has
committed an error in seeking to si~ in judgment over the decision rendered
in the reference under Section 30 of the Land Acquisition Act marked as
Exhibit - Al especially when the same had become final inter parties and
under the subject matter of the second appeal. The learned Judge has erred D
in interpreting and poi!Jting 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 th~ E

- 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 suit property.
The learned Judge is also not correct in holding that the suit properties
belong to Yengachari Muniammal merely on the basis of some evidence as
to her possession especially when her title had not been established or traced F
by the respondents as required under law. The learned Judge, in our opinion,
has misconstrued that the appellants are seeking relief on the basis of
discrepancies in the case pleaded by the respondents evidently overlooking
that the appellants had pleaded and proved their case and the same had been
accepted by the final court of fact. G
In our opin'ion, the High Court has erred in holding that the appellants

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have failed to establish their title to the suit property evidently 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 H
1242 SUPREME COURT REPORTS [2004) 2 S.C.R.

A evidence both oral and documentary instead of only a portion thereofespecially
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
B second appeal under Section l 00 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. Ev.en assuming
C 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 ba'ied on no material.

To say the least the approach of the High Court was not proper. It is
the obligation of the Courts of law to further the clear intentment of the
D legislature and not frustrate it by excluding Qie same. This Court in a catena
of decisions held that where findings of fact by the lower appellate Court are
based on evidence, the High Court in second appeal cannot substitute its own
findings on reappreciation of evidence merely on the ground that another
view was possible.

E We, therefore, hold that the High Court has exceeded its jurisdiction in
interfering with the findings of the final court of fact.

We, therefore, hold that the judgment of the High Court under the
-
circumstances cannot be sustained and judgment of the lower appellate Court
in A.S. No. 21 of 1983 of the Subordinate Judge, Tiruvallur is restored. The
F appeal stands allowed. There will be no order as to costs.

B.S. Appeal allowed.

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