JUDGMENT
1. This appeal is directed against the judgment and decree dated 22-6-1993 rendered by the District Judge, Khammam in AS No.39 of 1988 reversing the judgment and decree dated 3-6-1988 passed in OS No. 193 of 1978 on the file of the Principal District Munsif, Khammam.
2. The appellant herein is the plaintiff and the respondents herein are the defendants in the said suit OS No.193 of 1978. For the sake of convenience, the parties are being referred as they are arrayed in the suit.
3. The appellant-plaintiff filed the said suit for partition and separate possession of his l/3rd share in an extent of 8 acres in Survey Number 332 situated in Yedulapuram village in Khammam District. The case of the plaintiff is that himself, D4 and D5 are the sons of the first defendant and it constituted a joint family and that there was a partition between himself, D1, D4 and D5 in the year 1967 and all the joint family properties were divided. The present suit property i.e., an extent of 8 acres in Survey Number 332 was allotted to the share of the first defendant to be enjoyed by the first defendant and his wife during their life time without any right of alienation and that subsequent to their death, the plaintiff, D4 and D5 are entitled for 1/3rd share each. It is further the case of the plaintiff that in 1971 the plaintiff filed the suit OS No.116 of 1971 against his father-first defendant when the later tried to alienate the suit property contrary to the understanding arrived at the time of partition and that suit was decreed and the first defendant was permanently restrained to alienate the suit property in favour of the third parties. It is further the case of the plaintiff that in spite of the said decree in OS No.116 of 1971 the first defendant alienated 4 acres in the suit Survey Number 332 in favour of the defendants 2 and 3 and an extent of 20 guntas in favour of the fourth defendant and executed registered sale-deeds dated 15-10-1976 and that the said sales are not binding on the plaintiff as they were effected contrary to the understanding arrived at the Time of family partition and also contrary to the injunction order passed in OS No.116 of 1971. Hence the plaintiff filed the suit for partition and separate possession of his l/3rd share in that land. It is also pleaded in the plaint that since the purchasers were put in possession of the suit property by virtue of the sate transactions dated 15-10-1976, the life interest of the first defendant and his wife came to an end and that it amounts to civil death to the extent of the properties sold.
4. The defendants I and 4 filed their written statement denying the averments made in the plaint. They also denied the alleged partition of the joint family properties. It is their positive case that the first defendant is the manager of the joint family and as such the plaintiff cannot question the right of the first defendant in alienating the property and that the first defendant alienated the said properties to meet the marriage expenses of his daughters. They also pleaded that the decree passed in OS No.116 of 1971 does not confer any right or title on the plaintiff. They have also pleaded that the suit is barred for misjoinder of causes of action and that the suit is barred by limitation.
5. The defendants 2 and 3 filed a separate written statement. They also pleaded that they are the bona fide purchasers for value that the first defendant was the absolute owner of the suit property and that the first defendant sold the suit properly in their favour to discharge the debts incurred for the marriage of his daughters and the plaintiff is not entitled to challenge the validity of the said alienation.
6. The trial Court settled as many as eight issues for trial. During the course of trial, PWs.1 to 3 were examined and Exs.A1 to A6 were marked on behalf of the plaintiff. DWs.1 and 2 were examined and no documents were marked on behalf of the defendants. The plaintiff got himself examined as PW1 and PWs.2 and 3 are the village elders and they deposed with regard to the earlier joint family partition. The fathers of the defendants 2 and 3 were examined as DWs.1 and 2. No evidence was adduced on behalf of the defendants 1, 4 and 5. On a consideration of the oral and documentary evidence on record, the trial Court decided all the issues in favour of the plaintiff accepting the plaintiff’s case in entirety. The trial Court gave the following findings based on the evidence on record :
(i) There was an earlier partition between the plaintiff and his father-D1 and brothers D4 and D5 in the year 1967 and the same is binding on the parties and an extent of 8 acres in Survey Number 332 was allotted to the share of the first defendant with limited rights in the said partition.
(ii) the sale-deeds executed by the first defendant in respect of the suit land in favour of the defendants 2 to 4 are invalid and not binding on the plaintiff.
(iii) The defendants 2 to 4 are not bona fide purchasers for value without notice of the injunction order passed against the first defendant in OS No.116 of 1971.
(iv) The first defendant is not entitled to alienate the suit land by virtue of the earlier partition and also the injunction order passed against him in OS No.116 of 1971.
(v) The plaintiff is entitled for partition and separate possession of his 1/3rd share in the suit property.
(vi) The plaintiff’s suit is not barred by limitation.
Consequently, the trial Court decreed the suit with costs as prayed for.
7. Aggrieved of that judgment and decree of the trial Court, the defendants 2 and 3 preferred the appeal AS No.39 of 1988. On reappraisal of the entire evidence on record, the learned District Judge reversed the findings of the trial Court and consequently allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved of that Judgment and decree of the lower appellate Court, the plaintiff has come up with this second appeal.
8. Heard the learned Counsel on either side. The learned Counsel for the appellant took me through the impugned judgment of the lower appellate Court and also that of the trial Court and the evidence on record.
9. The learned Counsel for the appellant contended that the lower appellate Court had ignored the material evidence on record and without giving any cogent reasons for interfering with the findings of fact arrived at by the trial Court set it aside. It is also urged by the learned Counsel for the appellant that the entire approach of the lower appellate Court was perverse and the findings are vitiated. It is further contended that without considering and discussing the entire evidence on record, the learned lower appellate Judge simply quoted the written arguments submitted byboth sides and stated that he is agreeing with the submissions made by the learned Counsel for the defendants. Thus, the learned Counsel for the appellant further submits that the lower appellate Court failed to apply its mind in disposing of the appeal and as such it is vitiated by perversity warranting an interference by this Court under Section 100 CPC. The learned Counsel for the appellant further submits that the lower appellate Court has not formulated the points for consideration in the appeal and it did not record its findings thereon and thus there is no proper compliance of the provisions under Order 41, Rule 31 CPC.
10. In reply, the learned Counsel for the respondent-defendants submits that the evidence let in by the plaintiffs is not sufficient to prove earlier partition and that the defendants were not aware of the injunction order passed against the first defendant in the suit OS No.116 of 1971 and that the lower appellate Court was justified in setting aside the judgment and decree of the trial Court. He further contends that the findings of the lower appellate Court are findings of fact and it is not permissible for this Court to interfere with the said findings of fact arrived at by the lower appellate Court.
11. It is well settled that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 CPC after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a mere question of law is the sine qua non for the exercise of the jurisdiction under Section 100 CPC . In Kasi Bai v. Parvathi Bai, , their Lordships of the Supreme Court held thus :
“It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact based on appreciation of the relevant evidence. There is catena f decisions in support of this view.”
In Dudnath Pandey v. Suresh Chandra Batha Sali, , the Supreme Court held that the High Courts in exercise of power under Section 100 CPC cannot make a fresh appraisal of evidence and come to a different conclusion contrary to the finding recorded by the first appellate Court. There is catena of decisions in support of this view. Thus, interference with the findings of fact, however erroneous is not permissible but there are exceptions to this. If the findings arrived at by the lower appellate Court are based on misreading of the evidence on record or have been arrived at by ignoring the material evidence on record or are vitiated by any error of law, then it constitutes a substantial question of law within the meaning of Section 100 CPC and this Court is justified in interfering.
12. In Ashok Kumar v. Basantilal, , it is held that where the lower appellate Court did not give any cogent reasons for differing from findings of the trial Court and it completely ignored the material evidence and chose to draw adverse inferences for reasons which were not valid, the finding of the lower appellate Court would be vitiated and would not be sustainable in law and the High Court is justified in interfering with the same findings of fact of the lower appellate Court under Section 100 CPC. In K. Subramaniyam v. S. Nagappa, 1986 (1) ALT 32, this Court held that “where the reasons given by the Appellate Judge are per verse and there is no consideration at all in the appeal, it constitutes a substantial question of law within the meaning of Section 100 CPC.” Again in M. Kotiah v. Y. Punnaiah, , a single Judge of this Court also took the same view.
13. Thus, where the lower appellate Court had considered the evidence on record by applying its mind independently and considered the reasoning of the trial Court and gave its findings of facts, the same does not deserve to be interfered with by the High Court in second appeal. But, if the finding of fact has been recorded by the lower appellate Court without considering the entire evidence on record, that finding can be successfully challenged in second appeal because the finding of fact which is not supported by any evidence can be questioned under Section 100 CPC. The High Court is also justified in interfering when it is made out that the lower appellate Court failed to meet the points raised by the trial Court in appreciating the evidence on record and also where the approach of the lower appellate Court to decide the case is quite erroneous. The High Court can also interfere when there is a perversity in finding of fact or deliberate mistake either in collection or evaluation of evidence or when it is the result of surmises and conjectures.
14. As seen from the impugned judgment of the lower appellate Court, 1 am satisfied that there is much force in the contentions raised by the learned Counsel for the appellate-plaintiff. The lower appellate Court failed to meet the points raised by the trial Court in appreciating the evidence on record and gave its findings on the contentious issues involved in the suit. The lower appellate Judge simply quoted the written arguments submitted by the Counsel on either side extensively and simply observed that he was not persuaded to accept the submissions made by the learned Counsel for the plaintiff and accept the contentions raised by the learned Counsel for the defendants. This approach of the lower appellate Court is quite erroneous. He ought to have considered and discussed the oral and documentary evidence on record and ought to have come to an independent findings of fact on the contentious issues involved in the suit. He has also not given any separate findings and he has simply stated that he has allowed the appeal and set aside the trial Court’s Judgment in OS No.193 of 1978. Thus, the judgment and decree passed by the lower appellate Court is nothing but per verse, based on non-consideration of the evidence on record and the same is liable to be set aside.
15. There is also much force in the contention raised by the learned Counsel for the appellant that the impugned judgment of the lower appellate Court is not in accordance with the provisions under Order 41, Rule 31 CPC as the lower appellate Court failed to formulate the relevant points for consideration in the appeal and it did not record its findings thereon. The learned Counsel for the appellant also relied upon the judgment in 5m/. Anita M. Harretto v. Abdul Wahid Sanaullah, , wherein the learned single Judge of the Bombay High Court has pointed out as to how in several cases the appellate Courts are formulating the points for determination in very vague manner ignoring the provisions under Order 41, Rule 31 CPC. He also pointed that the points which arise for determination of Court of First Appeal must cover all important questions involved in the case and ihey should not be general and vague. The learned single Judge observed that “Merely asking the question as to whether the judgment of the Court below is correct, legal and valid is hopelessly an inadequate method of meeting the requirement of this legal provision.” The learned Counsel for the appellant also relied on a judgment of this Court in Iruvanti Gopinatha Rao (Died) and others v. Vadlapudi Narayana and others, , which is also to the same effect. As could be seen from Order 41, Rule 31 CPC the appellate Court should frame the points for determination and record its decisions thereon. The appellate Judge has to consider all the disputed questions of fact and law and record his findings thereon. But, in the instant case, the lower appellate Court has not formulated the points for consideration based on the contentious issues involved in the suit but merely set out a general and vague point for consideration as “Whether the impugned judgment and decree are illegal, erroneous and unsustainable as contended by the appellants?”. Framing of such a point for consideration is not in conformity with the provisions under Order 41, Rule 31 CPC.
16. In the result, the appeal is allowed and the judgment and decree of the lower appellate Court in AS No.39 of 1988 under appeal are set aside and the matter is remanded to the lower appellate Court i.e., the District Court, Khammam, for fresh disposal according to law in the light of the observations made in this judgment. The learned District Judge, Khammam, is directed to dispose of the appeal within three months from the date of receipt of a copy of this judgment along with the record, on consideration of the entire evidence on record and also following the procedure as laid down under Order 41, Rule 31 CPC. The parties are directed to bear their own costs.
17. The Registry is directed to forward a copy of this judgment along with the record to the District Court, Khammam, forthwith.