Madras High Court
B. Parvathy vs Ramakrishna Mission Represented By ... on 24 July, 2001
Equivalent citations: (2001)3MLJ309
JUDGMENT K. Govindarajan, J.
1. The unsuccessful second defendant before the lower appellate Court has filed this second appeal.
2. The plaintiff filed a suit in O.S.No. 932 of 1980 on the file of the City Civil Court, Madras for declaration of the plaintiff's title and for possession of the suit property.
3. According to the plaintiff, they have purchased an extent of 11 grounds and 160 sq. ft. which includes the suit property, under Exs.A-1 and A-2, and the defendants predecessors-in-title were the tenants with respect to the land in question, and on that basis the plaintiff filed the said suit.
4. The defendants contested the suit contending inter alia that the plaintiff- mission are not having any right in the suit property, and they have not purchased the suit property itself, and so they cannot sustain the suit for declaration and recovery of possession.
5. The trial Court accepted the case of the defendants and dismissed the suit. Hence the plaintiff filed appeal in A.S.No. 689 of 1985 on the file of the City Civil Court, Madras. The learned District Judge reversed the judgment and decree of the trial Court and decreed the suit. Hence, the 2nd defendant, has filed this second appeal.
6. The substantial questions of law that arise for consideration in this second appeal are:-
(1) Whether the lower appellate Court is correct in its finding that the judgment in the small Cause Court would operate as res judicata to the present title suit?
(2) Whether the lower appellate Court is right in interpreting Exs.A-1 and A-2 and finding that the suit properties are included in them?
7. Though the said substantial questions or law have been framed at the time of admission, after hearing the arguments of the learned senior counsel, appearing for the appellants. I am inclined to frame the following substantial question of law:
Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court without assigning any reason, and differing from the reasons given by the trial Court?
8. The learned senior counsel appearing for the appellant/ 2nd defendant has submitted that though the trial Court has given valid reasons to reject the case of the plaintiff basing on evidence, the lower appellate Court has not even adverted to the findings given by the trial Court. According to him, the lower appellate Court while reversing the judgment and decree of the trial Court should have given reasons as to how the trial Court is wrong in giving such findings. In support of his submission, the learned senior counsel has relied on the decision in Santosh Hazari v. Purushottam Tiwai (2001)1 Supreme 642, in which the Apex Court has held as follows:
15...While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact). See: Madhusudan Das v. Smt. Narayani Bai and Ors. . The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies; the appellate Court should not interfere with the finding of the trial judge on a question of fact. See: Sarju Pershad Ramdeo Sanu v. Jwaleshwari Pratap Narain Singh and Ors. . Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts, pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has not ceased to be available to correct the errors of law of the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.
9. It is not in dispute in this case that the lower appellate Court has nowhere dealt with as to the. correctness of the findings of the trial Court. The lower appellate Courts has given independent reasonings for arriving at the conclusion. In view of the abovesaid decision of the Apex Court (supra), while reversing the judgment and decree of the trial Court, the lower appellate Court ought to have given reasonings as to how the trial Court is wrong. But, the lower appellate Court has not given any such finding in its judgment.
10. For all the reasons stated above, without going into the merits of the case, I am setting aside the judgment and decree of the lower appellate Court, and remand the matter to the lower appellate Court for fresh disposal on merits within six months from the date of receipt of copy of this judgment. In view of the remand of the matter to the lower appellate Court, the appellant is entitled to refund of the Court-fee paid. Accordingly, this second appeal is allowed. No costs.