Rule 23 of Order 41 of the Code of Civil Procedure, 1908, (for short “the Code”)
provides that where the court from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point and the decree is reversed in appeal, the appellate court
may, if it thinks fit, by order remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, which directions to re-admit the suit
under its original number in the register of civil suits, and proceed to determine the suit;
and the evidence (if any) recorded during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
15. Rule 23-A of Order 41 of the Code provides that where the court from whose decree
an appeal is preferred has disposed of the case otherwise than on a preliminary point, and
the decree is reversed in appeal and a re-trial is considered necessary, the appellate court
shall have the same powers as it has under Rule 23.
16. Rule 24 of Order 41 of the Code further provides that where evidence on record is
sufficient, the appellate court may determine the case finally, instead of remanding the
same to the lower court.
17. Needless to say, in the present case, the suit was not disposed of on any
preliminary issue by the trial court. The second appellate court should have restrained
itself from remanding a case to the trial court. Remanding a case for reappreciation of
evidence and fresh decision in the matter like the present one is nothing but harassment
of the litigant. The unnecessary delay in final disposal of a lis, shakes the faith of litigants
in the court.
18. With the above observations, after having found that there was no substantial
question of law involved in the second appeal before the High Court, and that the High
Court has, by merely reappreciating the evidence, reversed the concurrent findings of fact,
and remanded the matter, we have no option but to allow these appeals.
SUPREME COURT OF INDIA
(2015) 11 Supreme Court Cases 782:(2015) 3 SCR 737
(2015) 11 Supreme Court Cases 782:(2015) 3 SCR 737
(BEFORE DIPAK MISRA AND PRAFULLA C. PANT, JJ.)
LISAMMA ANTONY AND ANOTHER . . Appellants;
Versus
KARTHIYAYANI AND ANOTHER . . Respondents.
Civil Appeals Nos. 3066-67 of 20151, decided on March 20, 2015
PRAFULLA C. PANT, J.— These appeals have arisen out of the judgment and decree
dated 6-6-2013, passed by the High Court of Kerala in Karthiyayani v. Lisamma Antonyl,
whereby the said appeal was allowed by the High Court. By the order dated 7-2-2014;,
passed by the High Court, Review Petition No. 611 of 2013 in second appeal was
dismissed.
2. We heard the learned counsel for the parties and perused the papers on record.
3. Briefly stated, plaintiff Annamma Thomas (predecessor-in-title of the present
appellants) instituted Suit No. 415 of 2005 before the Principal Munsif, Alappuzha, for
injunction restraining the defendants from trespassing into the property mentioned in the
schedule of the plaint, and from demolishing its boundary. It is pleaded in the plaint that
the plaintiff Annamma and her two children Mathew and Benny were the absolute owners of the property, which they purchased vide Sale Deed No. 824/80 dated 3-5-1980. They further pleaded that they were in possession of the property. It is also pleaded by the plaintiffs that the defendants
are the Kudikidappukari (persons holding tenancy rights) of the previous owners to the
extent of 10 cents of property (1/10th of an acre), which is on the northern side of the
property in suit. The defendants were in possession of the said part. It is further pleaded
by the plaintiffs that boundary between the property in question and that of the
defendants is well demarcated. It is alleged by the plaintiffs that on 19-6-2005, the defendants attempted to demolish the existing fence. Therefore, the suit filed.
4. The defendants filed written statement and additional written statement, and
contested the suit. They denied the title of the plaintiff over the land in question. They
also denied having attempted to demolish the fencing as alleged by the plaintiff. It is
stated in the written statement that mother of Defendant 1 was given 10 cents of the land
on the north of ‘Thodu’ (water channel), lying on the northern side of the property.
5. The trial court framed as many as five issues, including the issue relating to
correctness of description of the property in suit. After giving opportunity to the parties to
adduce evidence, and after hearing them, the trial court found that the property in the suit
is owned by the plaintiffs and decreed the suit with the following directions:
“1. The defendants are restrained by a decree of permanent prohibitory injunction
from trespassing into the plaint schedule property i.e. property on the south of the
boundary fence consisting of poovarash trees existing on the northern boundary of the
plaint schedule property and from demolishing this boundary.
2. The northern boundary of the plaint schedule property is fixed as the existing
boundary fence, constituted of poovarash trees i.e. 40 cm, to the south of EF line of Ext.
C1(b) plan. Ext. C1(b) plan is attached along with the decree.”
6. Aggrieved by the said judgment, the defendants filed AS No. 123 of 2009 before the
District Judge, Alappuzha. At the appellate stage, the defendants sought to adduce
additional evidence which was allowed by the first appellate court, and documents Exts. B-
1 to B-9 were taken on record. The first appellate court, after hearing the parties, affirmed
the decree of the trial court, vide its judgment and decree dated 19-10-2012, with the
following directions and modifications:
“In the result, the appeal is allowed in part. The suit decreed fixing the northern
boundary of the plaintiff's property as EF line. Ext. C1(b) plan will form part of the
decree and is granted a permanent prohibitory injunction restraining the defendants
from trespassing into the property of the plaintiff or causing any kind of obstruction of
its peaceful possession and enjoyment."
7. The following reasons are given in para 8 of the judgment of the first appellate court
for the above directions:
“On measurement by the Commissioner it was found that 20 cents of property
available and there is no reduction in extent. If that be so, the property can be located
based on the title of the plaintiff at first and the remaining 10 cents will go to the
defendants as the defendants have obtained title subsequently under Ext. B-1
document and that is what was actually done by the Commissioner who prepared Ext.
C1(b) plan. The existence of thodu and road in their respective properties will not affect
their title. The Commissioner who prepared Ext. C1(b) plan has located the property of
10 cents owned by the plaintiff as well as the 10 cents owned by the defendants and
the dividing line correctly located as EF line in the plan. The location of Poovarash tree
also located in the plan. The property is seen measured and located in reference to the
old survey stones which are also located. All these would clearly show that the
boundary line separating these two properties was fixed in accordance with the survey
plan as well as document of title of plaintiff. So there cannot be any reason for
interference to the finding of the survey line separating these properties. The place
wherein the fencing situated not noted in Ext. C1(b) plan. No attempt was made by the
defendants in order to locate the place wherein the fencing is situated. There is no prayer for recovery of possession of any portion of property by the respective parties
and hence the finding of the lower court that the EF line is the boundary line in between
the property of the plaintiff and the defendants can safely be accepted.”
8. Dissatisfied from the decree of the first appellate court, the defendants filed Second
Appeal No. 188 of 2013 before the High Court which was disposed of by the said court
vide the impugned judgment and decree dated 6-6-2013i.
9. Para 7 of the impugned judgment and decree, passed by the High Court, shows that
the High Court framed the following question as substantial question of law:
“Did the courts below go wrong in overlooking the boundaries and descriptions in
Ext. B-1, which is a vital document so far as it relates to the identity of the property
claimed by the defendants?”
10. It is argued before us on behalf of the appellants that the High Court has erred in
law in upsetting the concurrent findings of fact recorded by the courts below. On the other
hand, the learned counsel for the respondents contended that the appellants have still
right to prove their claim as the matter has been remanded by the High Court to the trial
court.
11. It is settled principle of law that second appeal under Section 100 of the Code of
Civil Procedure, 1908, cannot be admitted unless there is substantial question of law
involved in it. As to what is substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujarl, this Court has explained the position
of law as under: (SCC pp. 725-26, para 6)
“6. If the question of law termed as a substantial question stands already decided by
a larger Bench of the High Court concerned or by the Privy Council or by the Federal
Court or by the Supreme Court, its merely wrong application on the facts of the case
would not be termed to be a substantial question of law. Where a point of law has not
been pleaded or is found to be arising between the parties in the absence of any factual
format, a litigant should not be allowed to raise that question as a substantial question
of law in second appeal. The mere appreciation of the facts, the documentary evidence
or the meaning of entries and the contents of the document cannot be held to be
raising a substantial question of law. But where it is found that the first appellate court
has assumed jurisdiction which did not vest in it, the same can be adjudicated in the
second appeal, treating it as a substantial question of law. Where the first appellate
court is shown to have exercised its discretion in a judicial manner, it cannot be termed
to be an error either of law or of procedure requiring interference in second appeal."
12. In view of the above position of law, the question formulated by the High Court in
the present case, as quoted above, cannot be termed to be a question of law, much less a
substantial question of law. The above question formulated is nothing but a question of
fact. Merely for the reason that on appreciation of evidence another view could have been
taken, it cannot be said that the High Court can assume the jurisdiction by terming such a
question as a substantial question of law.
13. Having gone through the impugned order challenged before us and after
considering the submissions of the learned counsel for the parties, we are of the view that
the High Court has simply reappreciated the evidence on record and allowed the second
appeal and remanded the matter to the trial court.
14. Rule 23 of Order 41 of the Code of Civil Procedure, 1908, (for short “the Code”)
provides that where the court from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point and the decree is reversed in appeal, the appellate court
may, if it thinks fit, by order remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, which directions to re-admit the suit
under its original number in the register of civil suits, and proceed to determine the suit;
and the evidence (if any) recorded during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
15. Rule 23-A of Order 41 of the Code provides that where the court from whose decree
an appeal is preferred has disposed of the case otherwise than on a preliminary point, and
the decree is reversed in appeal and a re-trial is considered necessary, the appellate court
shall have the same powers as it has under Rule 23.
16. Rule 24 of Order 41 of the Code further provides that where evidence on record is
sufficient, the appellate court may determine the case finally, instead of remanding the
same to the lower court.
17. Needless to say, in the present case, the suit was not disposed of on any
preliminary issue by the trial court. The second appellate court should have restrained
itself from remanding a case to the trial court. Remanding a case for reappreciation of
evidence and fresh decision in the matter like the present one is nothing but harassment
of the litigant. The unnecessary delay in final disposal of a lis, shakes the faith of litigants
in the court.
18. With the above observations, after having found that there was no substantial
question of law involved in the second appeal before the High Court, and that the High
Court has, by merely reappreciating the evidence, reversed the concurrent findings of fact,
and remanded the matter, we have no option but to allow these appeals.
19. Accordingly the appeals are allowed. The impugned judgment and decree dated 6-6
-2013, passed by the High Court in Karthiyayani v. Lisamma Antonyl and order dated 7-2-
2014 in Lisamma Antony v. Karthiyayanil, passed by the High Court, are set aside. The
judgment and decree as modified by the first appellate court shall stand affirmed. There
shall be no order as to costs.
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