Civil Appeal No.3713 OF 2001
Markandey Katju, J.
This appeal has been filed against
the impugned judgment of the Madras High Court dated 31.1.2000 in Second
Appeal No.1927 of 1999.
2. We have heard learned counsel for
the parties and perused the record.
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 10.9.1990. It was
alleged in the suit that an attempt was being made to dispossess the
plaintiff and hence injunction may be granted in his favour.
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 30.9.1988, 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
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.
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 plaintiff's witnesses that 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 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
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 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.
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 PW1.
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.
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.
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 :
"1. Whether the Lower Appellate Court has notcommitted an error of law
in placing the burden of proof upon the second appellant 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 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?
10. 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 of law was framed as to
whether the finding of fact of the First Appellate Court that Lakshmi
and Ramayee are one and the same person, is based on no evidence or is
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 100 CPC cannot interfere
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 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 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 Court shows that the High Court has practically acted as a First
Appellate Court and has re-appreciated the findings of fact of the
learned Subordinate Judge which it could not validly do in exercise of
its jurisdiction under Section 100 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.
13. The Appeal is allowed. There is
no order as to costs.
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