Case: NARESH Vs. HEMANT

no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. 12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered. 13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673 , this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows: 12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. 14. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur and others vs. Kaki and others, (2007) 1 SCC 546 , holding as follows: 71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. xxxx 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. xxxx 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record. The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement8. The evidence was in the nature of oath versus oath by the legal heirs of the two brothers. No documentary evidence except for the sale deed was led. The Trial Court correctly noticed the gap of 36 days between the preparation of the sale deed on 29.03.1957 and its subsequent registration on 03.05.1957 as a circumstance to accept the contention of the defendants that Ramchandrarao Ingole retracted from any contribution and his status as a vendee or beneficiary of the purchase. Since registration on 03.05.1957 till the institution of the suit by the legal heirs of Ramchandrarao Ingole, 38 years later, he did not prefer any claim since 03.05.1957 till his brothers death in 1980, including for 15 long years till his own death on 23.03.1995. Thereafter, PW-1 in his evidence admitted that the construction of the house had been made by Trimbakrao Ingole alone. There is no evidence that this construction was made from joint family funds. It is an undisputed fact that the plaintiffs at no point of time ever since purchase resided in the house or upon the suit lands or enjoyed the same in any manner let alone incurred any expenditure on the same9. The claim for a presumption under Section 45 of the Act in favour of the plaintiffs was raised for the first time before the First Appellate Court but was negated in light of the factual findings. Importantly, it was held that mere failure of the defendants to adduce satisfactory evidence that Trimbakrao Ingole had paid the entire consideration did not absolve the plaintiffs of their duty to establish their own claim in accordance with law by satisfactory evidence to substantiate the presumption sought to be relied upon. In other words, the appellate court correctly held that the weakness of the defence could not become the strength of the plaintiff, especially when the defendants were disputing their claims11. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.