SA.615-89 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 615 OF 1989 Sabaji Tukaram Rane (Since deceased, ) represented through the legal heirs ) 1. Smt. Laxmi Sabaji Rane, w/o. Sabaji ) Tukaram Rane, resident of Kawathi, ) Taluka Kudal, District Sindhudurg ) 2. Chintamani Sabaji Rane, s/o Sabaji T. Rane ) Age 12 years, through his natural guardian ) Smt. Laxmi S. Rane.) ) ...Appellants Vs. 1. Gopal Waman Rane, ) Aged 54, Occupation – Service, ) Resident of Kavathi, Taluka Kudal, ) District Sindhudurg ) 2. Krishnaji Waman Rane ) (Appeal is abated) ) ...Respondents *** Mr. A. S. Jadhav, for the Appellants. Mrs. S. A. Mudbidri, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 3, 2011 ORAL JUDGMENT : 1. Heard the learned counsel appearing on behalf of the appellants and respondent No.1. The appellant is the original plaintiff SA.615-89 - 2 - and the respondents are original defendants. (Hereinafter the parties are referred to as the plaintiff and defendants, for the sake of convenience). The original plaintiff filed a suit, being Regular Civil Suit No. 17 of 1979, in the Court of Civil Judge, Jr. Dn., Kudal, for a declaration that he is owner of the land Survey No. 32, Hissa No. 77, admeasuring 20 Gunthas, situated at village Kavathi, taluka Kudal. It is contended that defendant Nos. 1 and 2 had no right, title and interest in the suit land. 2. According to the plaintiff, by virtue of two sale-deeds dated 6-5-1897 and 5-3-1946, the plaintiff had become owner of entire land, Survey No. 32, Hissa No. 77. The defendants did not deny the execution of the sale-deeds in favour of the plaintiff. However, they contended that by the said sale-deed, the plaintiff’s predecessor did not acquire the entire land Survey No. 32, Hissa No. 77, and he was owner of the adjoining land which was part of the said property. The trial Court decreed the suit, filed by the plaintiff. The Appellate Court, however, set aside the judgment and decree of the Trial Court and came to the conclusion that the land namely Survey No. 32, Hissa No. 77 formed the only part of the property purchased by the plaintiff’s predecessor-in-title under the two sale deeds and as such therefore, the land comprised of said Survey number formed part of the two-third share purchased by the SA.615-89 - 3 - plaintiff’s predecessor-in-title, under the two sale-deeds, and therefore, it refused to grant a prohibitory order in favour of the plaintiff against the defendants. The Second Appeal was admitted on the following two grounds- (a) Whether on the facts and circumstances of the case, the Appellate Court has erred in law in interpreting the written documents namely the sale-deed dated 6-5-1898 (Exh.28) and sale-deed dated 5-3-1946 (Exh.27) and thereby erred in setting aside the judgment and decree of the trial Court in dismissing the suit? (b) Whether on the facts and circumstances of the case, Appellate Court was justified in holding that land namely Survey No. 32, H. No.77 did not form part of 2/3rd share of the land purchased by the plaintiff’s predecessor-in-title by sale-deeds from Shri Shrungare and Shri Shridhar Dattatraya Barve? 3. The learned counsel appearing on behalf of the appellants submitted that the defendants had not denied the sale-deed which were executed in favour of predecessor-in-title of the plaintiff. It was submitted that the trial Court had correctly interpreted contents of the sale-deeds and had held that the plaintiff was owner of the entire land and was entitled to get the prohibitory order of injunction against the defendants. He submitted that the Appellate Court had erred in SA.615-89 - 4 - interpreting the sale-deeds in a different manner. He submitted that even if the shares were calculated, it was apparent that the appellant/original plaintiff was owner of the entire land. The learned counsel has taken me to the judgment and order of the Appellate Court in support of the said submission. 4. On the other hand, learned counsel appearing on behalf of respondent No.1/defendant submitted that no substantial question of law was raised in this appeal and therefore, on this ground alone, the Second Appeal was liable to be dismissed. I have heard both the counsel at length. 5. The Apex Court in a recent judgment in the case of – Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent [(2009) 4 Supreme Court Cases, 244] has deprecated the practice of interference of the High Court interfering with the finding of concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty-fourth Report of the Law Commissioner of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High SA.615-89 - 5 - Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taken into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” 6. The Apex Court has on more than one occasion deprecated the practice of High Court in re-appreciating the evidence on record and coming to a different conclusion in Second Appeal under Section 100 SA.615-89 - 6 - C.P.C. It has to be borne in mind that the First Appellate Court while exercising its powers under 96 CPC and Order 41 of the CPC has every right to re-appreciate the entire evidence on record and come to its own conclusion. However, while exercising Second Appellate jurisdiction under Section 100 CPC, the High Court is not expected to substitute the view taken by the lower Appellate Court or by the lower Courts by re- appreciating the evidence on record. 7. In the present case, the lower Appellate Court has after going through the contents of the two sale-deeds which are admitted by the defendants and also after taking into consideration evidence of the plaintiff and the admissions given by him, has come to a conclusion that the plaintiff had not proved that he was owner of the entire land, as claimed by him. Apart from relying on the sale-deeds, the lower Appellate Court has also taken into consideration the other circumstances which had come on record, namely proceedings which were initiated before the Revenue Authorities and also the fact that plaintiff’s father had remained absent in those proceedings. 8. The Lower Appellate Court, therefore, having re- appreciated the evidence and having declined to accept claim of the plaintiff, it will not be proper for this Court to substitute the said view SA.615-89 - 7 - and accept the view of the trial Court. Hence, no case is made out by the appellant, since no substantial question of law is raised in the appeal. Second Appeal is, therefore, dismissed. [ V. M. KANADE J.]