SECOND APPEAL IN HIGH COURT
IN THE HON?BLE HIGH COURT OF JUDICATURE
AT Second Appeal No..................... of 19....................
(Under Section 100 C. P. C. )
...................................................................... Appellant
versus
................................................. Defendant/Respondent
.................................... Proforma Plaintiff/Respondent
To
The Hon?ble Chief Justice and his Companion Judges of the High Court of Judicature at....................
Second Appeal against the judgment and decree of the Additional Civil Judge, .................... dated.................... in Civil Appeal No..................... of 19..................... between.................... and another, arising from judgment and decree in Original Suit No..................... of 19.................... Shri......................................... is most respectfully submitted on the following amongst other grounds of appeal:
Valuation of the Appeal.................... Rs..................... as per valuation in original suit.
Court fee paid........................ Rs.....................
GROUNDS OF APPEAL
1. Because the learned Appellate Court has not framed points for decision in appeal and has pressed only on one irrelevant and evasive point in a round about way bye-passing judicial approach and justice in the matter.
2. Because under Rule 26 of the U. P. Zamindari Abolition & Land Reforms Act, 1952, if the building is abandoned, the site shall escheat to the State, the alleged Garhi having been abandoned the site had long before become the property of Gaon Sabha and no issue or point has been framed by the Courts below even at the face of the express pleading by the Appellant in this respect.
3. Because the learned Appellate Court has misunderstood the law as to ownership of the abadi sites in dispute. It is totally misconceived that since the respondent Zamindar was owner before abolition of Zamindari, hence he is owner of the abadi site in dispute. No possession is established on record either by filing extracts from Kutumb Register, or extracts from election record of Voters, or even by oral evidence that such and such servant is residing therein on behalf of the ex-Zamindar.
4. Because the bar to prove the neem trees within the.................... or in plot No..................... has been wrongly placed on the defendant/appellant. It is the plaintiff who is to stand on his own legs and it was he who was to get the land surveyed and not the defendant/appellant. The learned lower Appellate Court has miserably failed to import justice according to established principles of law.
5. Because the judgment of the learned Appellate Court is otherwise also against the provisions of law and facts on record.
6. Because the judgment of learned Appellate Court is evasive in nature and is no judgment in the eye of law.
7. Because the suit being bad for non-joinder of State and Gaon Sabha being necessary parties is liable to be dismissed on this ground alone and appeal be allowed.
RELIEF CLAIMED:
It is, therefore, most respectfully prayed that the appeal may be allowed and suit of the plaintiff/respondent be dismissed by setting aside the judgment of the trial Court.
Dated.................... Counsel for the Appellant.
case law
Section 100
SUIT FOR REDEMPTION OF MORTGAGE?WHETHER IN RESPECT OF ALL PLOTS OR ONLY IN RESPECT OF PART THEREOF ? MIXED QUESTION OF FACT AND LAW? RECORDS OF APPEAL NOT SHOWING WHETHER OBJECTION TAKEN AT ANY EARLIER STAGE AND COURTS BELOW HAVE GONE INTO QUESTION ? CASE REMITTED TO HIGH COURT FOR DISPOSAL IN ACCORDANCE WITH LAW.
Before the High Court a stand was taken on behalf of the respondents that by the mortgage deed five plots were mortgaged but the appellants had sought redemption in respect of two plots; out of the plots one of plots was never subject matter of mortgage and as such the suit for redemption was not maintainable.
The appellants have produced a copy of the plaint along with the schedule thereof and it was urged on their behalf that the suit has been dismissed by the High Court under misconception about the factual position in respect of the subject matter of dispute. A grievance was also made that the question whether the suit for redemption is in respect of all the plots which had been mortgaged or only in respect of part thereof, was a question of fact and as such any such plea regarding non-
maintainability of the suit, should not have been taken on behalf of the respondent for the first time before the High Court.
The learned counsel appearing for the respondent could not point out from the records of the appeal that this objection had been taken on behalf of the respondent at any earlier stage and the courts below have gone into this question. It cannot be disputed that it is a mixed question of fact and law. In such a situation, we are left with no option but to set aside the judgment of the High Court and to remit the case back to the High Court for disposal in accordance with law1.
SECOND APPEAL ? SUBSTANTIAL ERROR OR DEFECT IN PROCEDURE ? WHERE COURT BELOW IGNORED WEIGHT OF EVIDENCE AND ALLOWED JUDGMENT TO BE INFLUENCED BY INCONSEQUENTIAL MATTERS ? HIGH COURT JUSTIFIED IN REAPPRECIATING EVIDENCE.
Section 100 (1) (c) refers to a substantial error or defect in the procedure. The error or defect in the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits. Even if the reappreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly erroneous that cannot be said to introduce a substantial error or defect in the procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision2.
LOWER APPELLATE COURT DECREEING SUIT ON AN ASSUMPTION NOT SUPPORTED BY EVIDENCE ? HIGH COURT JUSTIFIED IN SETTING ASIDE FINDING.
The appellant was appointed temporarily as an Assistant Jailor in the State of Madhya Pradesh and his services were terminated in 1965 without assigning any reason. He filed the suit out of which the present appeal arises challenging the termination order as illegal on the ground that although it was, on its face, a termination order simpliciter it was passed as a measure of punishment without holding an inquiry. The suit was dismissed by the trial court but on appeal the First Additional District Judge, decreed the same. The State of Madhya Pradesh challenged the judgment before the High Court in second appeal which was allowed and the suit was again dismissed. The plaintiff-appellant has now come to this court in the present appeal by special leave.
The High Court disagreed with the assumption made by the Additional District Judge which was not supported by any evidence. Besides, the circular did not cast any stigma on any particular person. Its object was to lay down a guideline for the conduct of the state employees in the future, so far as the plaintiff was concerned, his services had already been terminated earlier and there was no question of re-opening the matter. It will thus be seen that the first appellate court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded. The High Court was, therefore, justified under S. 100 of the Code of Civil Procedure to set aside the finding3.
CONCURRENT FINDINGS OF FACT, HIGH COURT NOT PRECLUDED FROM RECORDING PROPER FINDINGS.
As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings4.
SUIT FOR PARTITION AND SEPARATE POSSESSION ? PROPERTY SOLD ? SALE DEED EXECUTED BY ONE OF JOINT OWNERS ? FINDING BY LOWER COURT THAT SALE DEED SHAM AND NOMINAL AFFIRMED BY HIGH COURT ? NO ERROR COMMITTED BY HIGH COURT IN NOT INTERFERING WITH DECISION OF FIRST APPELLATE COURT.
The first appellate court held that in the facts and circumstances of the case the sale-deed under which the plaintiff claims is purely sham and nominal and not supported by consideration and does not convey any title to the plaintiff. It was, therefore, held by the First Appellate court that the plaintiff could not make out a preferential claim in the said property against the defendant who was in possession thereof ever since execution of the sale-deed. The High Court had dismissed the second appeal. The view taken by the First Appellate court for non-suiting the plaintiff cannot be faulted. The facts and circumstances which are either admitted or beyond controversy at this stage-fully support that conclusion. On that conclusion alone the plaintiff?s suit had to fail. Accordingly, there is no error committed by the High Court in not interfering with the decision of the first Appellate court in second appeal5
HIGH COURT NOT CORRECT IN SETTING ASIDE ? CONCURRENT FINDING OF FACT.
The High Court was not correct in setting aside the concurrent finding that the sale of ancestral immovable property was an act of good management and not restricted by custom, being a finding of fact6.
HIGH COURT WILL BE WELL WITHIN RIGHTS IN SETTING ASIDE IN A SECOND APPEAL A PATENTLY ERRONEOUS FINDING.
It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding7.
REVENUE RECORDS NOT DOCUMENT OF TITLE ? INTERPRETATION OF ? NOT A QUESTION OF LAW ? INTERFERENCE BY HIGH COURT, ILLEGAL.
So far as the revenue records were concerned the appellate court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the first appellate court was erroneous.
