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The findings of Fact cannot be interfered with in a Second Appeal unless, the findings are perverse


Bench: Hon’ble Justice S. ABDUL NAZEER and Hon’ble Justice HEMANT GUPTA

The plaintiff filed a suit for partition and separate possession of 1/4th share in the Suit schedule property between himself and his three brothers who are defendant Nos. 1, 2 and 3. Defendant Nos. 4 to 17 are the persons who have purchased the property from the 1 defendant Nos. 1 to 3, the brothers. The plaintiff claimed that he was minor at the time of death of his father in the year 1963 and that he continued as a member of the joint Hindu family in joint possession and enjoyment of the property of joint Hindu family. The plaintiff asserted that his signatures were obtained on a few documents and that he was not aware of the contents of the same nor did he execute any document thereof and understood what they were.

The substantial question answered by the HC was, “Whether the judgment and decree passed by the Courts below suffer from illegality on account of improper consideration of Ex.P1, i.e., school leaving certificate?”

The Court found that the onus was on the plaintiff to prove that he was a minor at the time of execution of release deed. He failed to prove his date of birth as 8th April 1946, therefore, his suit is to be dismissed and was rightly dismissed by the learned trial court and the First Appellate Court. The High Court in Second Appeal could not reappreciate the evidence to take a different view that such document is proved. The illegality on account of alleged improper consideration does not give rise to a substantial question of law.

The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan it was held that findings of the fact could not have been interfered within the second appeal.

Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court.

In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence.

State of Rajasthan v. Shiv Dayal  it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents.

The Court held that the High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

The Court found that HC erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The HC could not have interfered with the findings of the fact.  Therefore the Court held that enunciation of law and the facts of the present case, High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court.

The appeal was allowed and suit was dismissed. View/ Download the Judgment: C. DODDANARAYANA REDDY (DEAD) BY LRS. & ORS Vs. C. JAYARAMA REDDY (DEAD) BY LRS. & ORS.

– Saral M



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