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

3. The case is a simple one : Theis the deity Sri Pattabhiramaswami of Narasaraopet, represented by Dharmakartha Nagasarapu Subbarayudu. The plaintiffs case is that property to the extent of 12 acres and 30 cents, bearing survey number 1032/B was dedicated to the deity in 1868 by the members of the Behara family, that the land has ever since been in the enjoyment of the deity, that at some timenot exactly known whenthe then trustees entered into a convenient arrangement with the pipers, whereunder in lieu of wages for services rendered to the temple, the said property was to be in their possession, that defendants 6 to 23 are the representatives of the Bhajantries to whom the lands were givenof these defendants, defendants 6 to 14 are Hindus (Mangalis) and defendants 15 to 23 are Muslims (Dedekulas), that defendants 1 to 5 took two sale deeds from the other defendants one sale deed was executed in favour of defendants 1to 3 and the other in favour of defendants 4 and 5and that on the basis of the said sale deeds, the said alienees were setting up title of their own against the deity. On these allegations, the suit was filed for possession and for recovery of profits.4. Defendants 1, 2, 4 and 5 filed adenying the title of the deity and its possession of the suit property. They did not set up any specific title in defendants. 6 to 23, but asserted that they were bona fide purchasers from defendants 6 to 23 who were in possession of the land.5. On the aforesaid pleas, the following issues were framed :(1) Has plaintiff title to the suit land by grant or prescription?(2) Had plaintiff been in possession within 12 years prior to suit?(3) To what future profits, if any, is plaintiff entitled?(4) To what relief?6. On Issue 1, the learned Subordinate Judge, having considered the entire evidence, came to the following conclusionis abundant evidence in the case documentary, oral and circumstantial to render it probable that the suit land was gifted or dedicated by the members of the Behara family to theand was in the possession and enjoyment of the Bhajantris, Mangalis and Dedekulas, only as remuneration for the service being rendered by them and as servants of theand as land belonging to the deity and in the right of the deity and not in their own right."On the basis of the appreciation of the evidence, the learned Subordinate Judge held that the plaintiff had title to the suit land. On issue 2, he held that defendants 6 to 23 were in possession on behalf of the deity and therefore the plaintiff was in possession within 12 years prior to the date of the suit. On issue 3, he found that the plaintiff was entitled to future mesne profits and according to that finding, he directed an enquiry to be held in respect of the future mesne profits under Order XX, Rule 12, Civil Procedure Code. On issue 4, he found that the plaintiff was entitled to relief as prayed for.8. On appeal the learned District Judge, after considering the evidence afresh came to the same conclusion as arrived at by the learned Subordinate Judge. In paragraph 5 of the judgment, the learned Judge observesplaintiff, although he failed to adduce satisfactory direct evidence of grant to the deity, has placed before Court ample material for coming to the conclusion that the suit property belonged to the deity and was not the private property of the Bhajantries".In paragraph 10, after considering three pieces of evidence, the learned Judge concluded :"In fine, I am satisfied that the plaintiff has placed sufficient material before Court for coming to the conclusion that the suit property is that of the deity. Hence possession by the pipers attached to the temple in lieu of service rendered by them must be deemed to be on behalf of thethe basis of that finding the appeal was dismissed.9. The defendants preferred a second appeal to the High Court of Judicature at Madras. The learned Judge of the High Court in an elaborate judgment considered the entire evidence as he would do in a first appeal and arrived at a finding of fact to the effect that the plaintiff has failed to prove the title of the deity. On that finding the suit was dismissed with costs throughout.

Reasoning:
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.