The appeal is allowed with no order as to costs .
[ Usha Bhardwaj ] [ Indu Satija]
Court Master Court Master
Signed order is placed on the file. IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6588 OF 2002
Ramavilasom Grandhaqsala rep.by .....Appellants
Secy. & Anr.
Versus
N.S.S. Karayogam ....Respondents
Heard learned counsel for the parties and perused the record.
This appeal has been filed against the impugned judgment of the
Kerala High Court dated 1st October, 2001 in Second Appeal No.1155 of 1989-
D. The respondent in this appeal filed a suit alleging himself to be the owner of
the property in dispute. It is not disputed that the original owner of the
property was one Velayudhan Pillai Sivarama Pillai. He executed a gift deed
in favour of Yuva Samithi on 19-08-1114 Malayalam Era 1939 A.D. There was
a provision in the gift deed (Exhibit A1) to the effect that if Yuva Samithi
becomes defunct the title and possession of the property covered by the gift
deed would revert to the owner.
The Trial Court and First Appellate Court held that the Yuva
Samithi had not become defunct. The clear finding of fact of the First
Appellate Court in its judgment dated 28th July, 1988, was that there was no
evidence to show that the Yuva Samithi had become defunct and it was still
functioning in a different name i.e. United Sports Club which was attached to
Ramavilasom Grandhasala. This is a finding of fact and could not have
ordinarily been interfered with in Second Appeal by the High Court.
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It is well settled that the High Court in Second Appeal can interfere
with the judgment of the First Appellate Court only if there is an error of law and not an error of fact. Ordinarily, the First Appellate Court under Section
96 C.P.C. is the last Court of facts. However, there is very limited scope for the
High Court to interfere with a finding of fact in a Second Appeal, namely, if the
finding of fact was based on no evidence or is totally perverse.
In this case, the High Court has interfered with the finding of fact of
the First Appellate Court that the Yuva Samithi and Ramavilasom
Grandhasala are different entities. We are of the opinion that even if the High
Court was of the opinion that the finding of fact of the First Appellate Court on
this point was based on no evidence or was perverse, at the most the High
Court could have remitted the matter to the First Appellate Court for a
fresh decision, in accordance
with law, but it could not itself acted as a First Appellate Court under Section
96 of the Civil Procedure Code, which it appears to have done.
It may be mentioned that the First Appellate Court has based its
finding that the Yuva Samithi is still functioning in a different name on the
basis of Exhibits B-1 to B-7. In our opinion, it was incumbent upon the High
Court, if it wanted to interfere with this finding to examine Exhibits B-1 to B-7
but it does not seem to have done so. Hence, we direct the High Court to
reconsider the question whether the finding of the First Appellate Court that
the Yuva Samithi has not become defunct and it is functioning in a different
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name is based on no evidence or is perverse. The High Court shall specifically
deal with Exhibits B-1 to B-7 and other relevant material in support of the said
finding of the First Appellate Court. All questions of law are left open to the
High Court. The impugned judgment of the High Court is set aside and the
case is remanded to the High Court to give a fresh decision in accordance with
law and in the light of the observations made above. We hope and trust that
the High Court will decide the appeal expeditiously, since the matter has been
pending for long.
If the High Court finds that the findings of the First Appellate Court
that the Yuva Samithi is still functioning is based on no evidence or is perverse
then it should remand the matter to the First Appellate Court for a
reconsideration of this question. The appeal is allowed.
There shall be no order as to costs.