S. SUBRAMANIAN versus S. RAMASAMY ETC. ETC.

Citation: [2019] 8 S.C.R. 250 · Decided: 01-05-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
250
SUPREME COURT REPORTS
[2019] 8 S.C.R.
S. SUBRAMANIAN
v.
S. RAMASAMY ETC. ETC.
(Civil Appeal Nos.4536-4537 of 2019)
May 01, 2019
   [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Suit:
Suits for injunction and for partition of suit property –
Claiming that the suit property was joint family property – Suit
defended by appellant on the ground that the suit property was self
acquired property and not of joint family – Trial court dismissed
the suits holding that the suit properties were self acquired properties
of their father and that there was no blending of the suit properties
with the ancestral properties – First appellate court affirmed the
order of trial Court  – High Court in second appeal after formulating
substantial question of law reversed the orders of courts below and
decreed the suits  – Appeal to Supreme Court  – Held: High Court
by re-appreciating the evidence upset the findings of facts recorded
by trial court as well as first appellate court and gave its own finding
which in exercise of its power u/s. 100 CPC is impermissible – On
merits also High Court erred in holding that there was blending of
suit properties with joint family properties – Code of Civil Procedure,
1908 – s. 100.
Code of Civil Procedure, 1908:
s. 100 – Second appeal – Jurisdiction under – Scope of –
Held: Second appeal is maintainable only on substantial question
of law and not on questions of fact or of law – Trial court could
have decided differently is not a question of law justifying
interference in second appeal – In exercise of such jurisdiction,
High Court cannot substitute it own opinion for that of the first
appellate court unless it finds that the opinion is erroneous.
Allowing the appeals, the Court
HELD:  1.1  While deciding the second appeal under
Section 100 of the CPC, the High Court is not required to re-
[2019]  8 S.C.R. 250
                                   250
A
B
C
D
E
F
G
H
251
appreciate the entire evidence on record and to come to its own
conclusion and the High Court cannot set aside the findings of
facts recorded by both the Courts below when the findings
recorded by both the Courts below were on appreciation of
evidence.  [Para 8.1] [262-C-D]
1.2  On appreciation of entire evidence on record, more
particularly, the documentary evidence which came to be
considered by the High Court as Exhibit A1 and Exhibits A 19,
24, 45 and 46, both the Courts i.e. the trial court and first appellate
Court came to the conclusion that there was no blending or treating
of the suit property as a joint family property. Despite the above,
the High Court  has re-appreciated the entire evidence on record
including the documentary evidence which as such were
considered by both the Courts below and has upset the findings
of facts recorded by both the Courts below on the blending of
suit property as a joint family property and has given its own
findings, which in exercise of its powers under Section 100 of the
CPC is wholly impermissible. [Para 8.1] [261-H; 262-A-B]
1.3 The second appeal would be maintainable only on
substantial question of law.  The second appeal does not lie on
question of facts or of law. The existence of ‘a substantial question
of law’ is a sine qua non for the exercise of the jurisdiction under
Section 100 of the CPC. In a second appeal under Section 100 of
the CPC, the High Court cannot substitute its own opinion for
that of the First Appellate Court, unless it finds that the
conclusions drawn by the lower Court were erroneous being: (i)
Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Apex Court; or (iii)
Based on inadmissible evidence or no evidence. If the First
Appellate Court has exercised its discretion in a judicial manner,
its decision cannot be recorded as suffering from an error either
of law or of procedure requiring interference in second appeal.
The Trial Court could have decided differently is not a question
of law justifying interference in second appeal.  [Para 8.2]
[262-E-H; 263-A]
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
(1999) 3 SCC 722 : [1999] 2 SCR 728 ;  Ishwar Dass
Jain v. Sohan Lal (2000) 1 SCC 434: [1999] 5 Suppl.
SCR 24  – relied on.
S. SUBRAMANIAN v.  S. RAMASAMY
A
B
C
D
E
F
G
H
252
SUPREME COURT REPORTS
[2019] 8 S.C.R.
Panchugopal Barua v. Umesh Chandra Goswami
(1997) 4 SCC 713 : [1997] 2 SCR 12 – referred to
1.4 The questions of law formulated by the High Court
cannot be said to be substantial questions of

Excerpt shown. Read the full judgment & AI analysis in Lexace.