AI Drafter 
TaxTMI 
TaxTMI 
2004 (3) TMI 757
X X X X Extracts X X X X
X X X X Extracts X X X X
....of which possession continued to be with Kunjan in terms of Ext.B1. In 1976 Kumaran executed Ext.A1 and some properties were transferred to the 1st respondent, Kumaran. The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext.B1. In 1976 Kumaran executed Ext.A1 and some properties were transferred to the 1st respondent Kumaran. It is clearly recited in the document that only property covered by C Schedule to Ext.B1 which was allotted to Sumathi was the subject of transfer. This had an extent of 1.51 acres. The D Schedule property was not included in Ext.A1. However, by fraudulently and with the connivance of the 3rd respondent, the 4th defendant, the schedule to the document was also drafted as to bring the property owned and possessed by Kunjan under D Schedule to Ext.B1 as also 56 cents of lands not covered thereby. Despite this mistake described in the document, Kunjan continued to be in possession of the disputed property and its accredition while the 1st respondent, Kumaran was also closely moving with the family and there was no action from Kunjan. Kunjan accordingly sold the 50 cents covered by the D Schedule Ext.B1 as also the accre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the accredition and that Kunjan came aware of the mistake only when notice of OS 125/86 was received by him. The appeals had, therefore, to be allowed. Since the Commissioner's plan prepared in the suit did not correctly identify the 1.51 acres which the court felt was necessary to resolve future dispute, the learned District Court allowed the appeals and remitted the matter back to the trial court for preparing a proper plan for identification of the properties and pass a decree accordingly. The 1st respondent challenged this order in Civil Misc. Appeals before the High Court filed under Order 43 Rule (1) clause (u) of the Code of Civil Procedure. Both parties agreed that the remand was unnecessary having regard to the fact that the identity of the properties covered by the various documents was not very much in dispute. However, the High Court purported to go into the question of facts and allowed the appeals setting aside the judgment of the District Court and restoring that of the Munsiff Court. Being aggrieved, the appellant preferred the Special Leave Petitions/Appeals. We heard Mr. T.L.V. Iyer, senior advocate for appellant and Mr. P. Krishnamurthy, senior ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g substantial question of law specifically set out in the memoranda of appeal and formulated by the High Court. The High Court of Kerala in the instant case has not framed any substantial question of law as required by Section 100 C.P.C. and has committed a patent error in disposing of the Civil Misc. Appeal. The existence of a substantial question of law is thus the sine qua non for exercise of the jurisdiction under the provisions of Section 100 C.P.C. Mr. T.L.V. Iyer, learned senior counsel for the appellant raised a controversy which related to the scope and nature of hearing an appeal under order 43 Rule (1) clause (u) of CPC. It was contended by Mr.Iyer that though it is filed as Civil Misc. Appeal against the order of remand, it is necessarily a second appeal and, therefore, can be competent only on the ground mentioned in Section 100. It is further argued that the appellants in Civil Misc. Appeals against question of facts and the findings of fact of the lower court even though found to be erroneous are binding in such an appeal. Mr. Krishnamurthy, learned senior counsel for the respondent cited no contrary law. He, however, reiterated that Section 100 is confined to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....v. Kannoth Koottambath Kelan [AIR 1933 Madras 460], the case of Secretay of State v. Tripurna Sundarammal and Anr. [ AIR 1926 Madras 474) was followed. The Court held that civil miscellaneous appeals stand on the same footing as second appeals with regard to their being arguably only question of law. In Kaluvaroya Pillai & Ors. v. Ganesa Pandithan & Ors. [AIR 1969 Madras 148 ], the Court held as under:- "Though this is a case in which the lower appellate Court remanded the suit. It appears to me that the totality of the suit has been remanded to the trial Court for reconsideration in view of certain irregularities inhered therein. As a matter of fact the lower appellate court set aside the judgment and decree of the trial Court in full. Though it gave a liberty to the respondents to have a retrial in the trial Court, presumably, in the interests of justice, it appears to me that the lower appellate Court has substituted its own judgment to that of the trial Court and in the peculiar circumstances of the present case it is not open to the appellants in this civil miscellaneous appeal to canvass the entire judgment and decree of the lower appellate Court by filing an appeal und....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... whole of the judgment/evidence and to elaborate statements on question of facts. As rightly pointed out by Mr.Iyer that High Court has gone into excruciating details of facts and has appreciated the evidence which is not warranted in this case. A perusal of the judgment of the District Court disclosed that there is an elaborate consideration of the entire evidence oral or documentary in the case and that the findings thereof are based on appreciation of evidence and are conclusions of facts. It was pointed out that the High Court has erred in verifying the recitals in Ext..1 makes it clear that the property under it was only the C Schedule to the deed of gift, Ext.B1 allotted to the Sumathi which was sold. If really the D Schedule retained by Kunjan was also under transfer, the same should have on the place in the recitals regarding title and in the body of the document. Absence of such recitals is proof positive that the D Schedule was not intended to be conveyed. In our view the Schedule to the document was prepared in excess of what was intended to be conveyed. It has been fraudulently prepared as rightly found by the District Court. It is a well established principle that w....