Case: Deity Pattabhiramaswamy Vs. S. Hanymayya &amp; Others

the respondents, on the other hand, seeks to support the judgment of the High Court on the ground that the learned Judge based his judgment on the interpretation of the recitals in the document, which have been wrongly construed by the learned Subordinate Judge, and therefore the question raised in the second appeal was not one of fact but of law.11. The learned Judge of the High Court set aside the findings of the learned District Judge on the following grounds : (1) the property remained with the Behara family even as late as 1906; (2) it is unsafe to rely upon the contents of Exhibits P-13 to P-17, the cowles executed by defendants 6 to 23 in respect of the suit and, whereunder, in clear terms, the suit land was described as Bhajantri Inam of Sri Pattabhiramaswami Garu; (3) the mere fact that the property is called Bhajantri Inam of Sri Pattabhiramaswami Garu does not prove that the property was the property of the Swami Garu; (5) the evidence of P. W. 2 is not of much evidential value. The learned Judge concluded his judgment with the following remarks :"This case not having been proved by any direct or acceptable evidence and the documents relied upon by the Courts below in order to spin out a title in the deity and the so-called grant in favour of the Bhajantries being wholly unreliable, I must hold, even following the principle laid down in Wali Muhammad v. Muhammad Baksh ILR 11 Lah 199 : 1930 AIR(PC) 91) that the legal effect of the proved fact, viz., that the defendants 6 to 23 are in absolute possession of the property in their own right and not in the right of the temple, or on its behalf, should be considered essentially to be a question of law and in this view, the decree of the Courts below is unsustainable and the same has to be set aside." *12. It will be seen from the aforesaid narration of facts that the High Court interfered with the finding of fact given by the District Judge on the question of title by taking a different view of the evidence accepted by the learned District Judge. While the Subordinate Judge and on appeal the District Judge held, on a consideration of the relevant evidence, that the Behara family ceased to have any interest in the suit property, at any rate by the year 1886, the learned Judge of the High Court on a consideration of the same evidence came to the conclusion that the suit property continued to be the property of the Behara family till the year 1906, Whereas the genuineness of Exhibits P-13 to P-17 was not questioned in the Courts below and indeed both the Courts proceeded on the basis of the said documents, the learned Judge of the High Court, for the first time, in the second appeal, questioned the genuineness of the documents and found that their execution was not conclusively established. When the recitals in the documents Exhibits P-13 to P-17 executed by defendants 6 to 23 contain a clear and unambiguous admission that the property was Bhajantri Inam of Sri Pattabhiramaswami Garu, the learned Judge, ignored those recitals with the observation that the description would not prove anything in favour of the plaintiff. The evidence of P. W. 2 was also brushed aside with the observation that it was not of much value. It is therefore clear that the learned Judge in effect and in substance considered the entire evidence - oral and documentary-and came to the conclusion different from that arrived at by the learned District Judge.13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Sigh, 17 Ind. App 122 (PC), stated thus :"There is no. jurisdiction to entertain a second appeal on the ground of erroneous finding of act, however gross the error may seem to be".The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, 29 Cal WN 131 : 1923 AIR(PC) 187), further elucidated the principle by pointing out :"If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed." *14. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.

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

Explanation:
1[ds]13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding.Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.