LexNARAYANAN versus KUMARAN AND ORS.
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NARAYANAN
v.
KUMARAN AND ORS.
MARCH 16, 2004
[R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.]
Code of Civil Procedure, J908; Order 43 Rule(/) Clause (u) and Section
JOO: Father set/ling his properties excluding disputed property by executing
settlement deeds thereof in favour of his daughters-Transferring part of
properties earmarked in favour of minor daughter to a relative (Respondent)-
Respondent manipulating the schedule to property-Sale of disputed property
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B
c
by the owner-Respondent on one side and owner and Vendee on the other
filing separate suits for permanent injunction against the other-Trial Court
decreed the suit of the respondent holding other suit barred by /imitation-
Reversed by District Court holding that the respondent did not acquire title D
to the disputed properties and remanded the matter to trial Court for preparing
fresh plan for proper identification-High Court setting aside the judgment of
District Court and restoring that of trial Court-On appeal, Held: No question
of law arose for consideration-District Court had thoroughly examined the
facts/evidence in arriving at its findings-Jn an appeal against order of remand,
High Court should have confined itselfto the facts/conclusions/decisions having E
bearing on it-But it had gone beyond its jurisdiction by appreciating facts in
an appeal under Section JOO CPC-Hence, judgment o{the High Court could
not be sustained and set aside-Order of the District Court restored except
the order of remand which stands deleted.
The owner of the properties in dispute, had executed a deed of
Settlement settling his entire property excluding the disputed property
(Schedule C to Ext.Bl)in favour of his daughters including a minor
daughter and kept the disputed property (Schedule D) with him. Later,
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he gave part of the properties earmarked for his minor daughter to 1st
respondent, a close relative. Respondent No. I in connivance with G
Respondent No. 3 manipulated Schedule C and included in it the property
as mentioned in Schedule D. However, the owner remained in possession
of the property in dispute and sold part of the said properties to appellant/
Vendee. Respondent No. I filed a suit for permanent injunction. When
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SUPREME COURT REPORTS
[2004] 3 S.C.R.
A the owner came to know about the fraud committed by Respondent No: 1
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in transferring the disputed properties in his favour, he along with Vendee
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filed a suit for injunction. Owner died during the pendency of the suit.
Trial Court decreed the suit of Respondent No. I dismissing the other suit
on the ground of limitation. Aggrieved, Vendee filed an appeal which was
allowed by the District Court remanding the matter to the trial Court and
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B directing the preparation ofa fresh plan for identification of the properties.
1st respondent filed an appeal which was allowed by the High Court.
Hence the present appeals.
It was contended for the appellant that since no question of law was
c involved, High Court had gone beyond its jurisdiction in excruciating facts/
evidence in an appeal under Section I 00 CPC; and that the appellant
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should not have been heard by the High Court on question of facts.
Allowing the appeals, the Court
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HELD: 1.1. The order passed by the High Court clearly goes to show
that it has gone into minute details of facts and has appreciated evidence
which is not warranted under Section I 00 CPC, and is beyond its
jurisdiction. No question of law much less any substantial question of law
arose before the High Court. Its jurisdiction is confined to entertain only
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such appeal as involving substantial question of law specifically set out in
E the memoranda of appeal and formulated by it. High Court, in the instant
case, has not framed any substantial question of law and has committed
a patent error in disposing of the Civil Misc. Appeal. The existence of a
substantial question of law is sine qua non for exercise of the jurisdiction
under Section 100 CPC. [17-D-FI
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1.2. It is obvious from Order 43 Rule I Clause (u) of CPC that an
appeal would lie from an order of remand only in those cases in which an
appeal lies against the decree if the Appellate Court instead of making an
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order of remand had passed a decree on the strength of the adjudication
on which the order of .remand was passed. The test is whether in the
G circumstances an appeal would lie if the order of remand where it is to
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