USAMMAANTONY AND ANOTHERversusKARTHIYAYANI AND ANOTHER

                       I
                    [2015) 3 S.C.R. 737


              USAMMAANTONYANDANOTHER                            A
                                v.
                KARTHIYAYANIANDANOTHER
             (Civil Appeal Nos. 3066-3067 of 2015)
                       MARCH 20, 2015                           B
        [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
      Code of Civil Procedure, 1908 - s. 100 and Order XL/
n: 23, 23A and 24 - Second appeal - Scope of- Remand of
case- Propriety of- Suit for injunction decreed by trial court C
as well as first appellate court - High Court allowed the
second appeal and remanded the matter to trial court- On
appeal, held: The question formulated by High Court cannot
be termed as substantial question of law - High Court by
                                                                 0
merely re-appreciating the evidence, reversed the concurrent
findings of fact and remanded the matter - Hence second
appeal not maintainable - Remand of the present case was
not called for- Remand in such case amounts to harassment
of litigant- Unnecessary delay in final disposal of a lis shakes E
the faith of litigants in the court.

       Allowing the appeals, the Court

     HELD: 1. Second appeal uls. 100 of CPC, cannot
be admitted unless there is substantial question of.law F
involved in it. The question formulated by the High Court
in the present case, cannot be termed to be a question
of law, much less a substantial question of law. The
question formulated is nothing but a question of fact G
Merely for the reason that on appreciation of evidence,
another. view could have been taken, it cannot be said
that the High Court can assume the jurisdiction by
terming such a question as a substantial question of law.
[Paras 11and12] [742-F; 743·E-F]                          H
                            737
738         SUPREME COURT REPORTS                   [2015] 3 S.C.R.



A          2. The High Court has, by merely re-appreciating
      the evidence, reversed concurrent findings of fact, and
      remanded the matter. The second appellate court should
      have restrained itself from remanding a case to the trial
      court. Remanding a case for re-appreciation of evidence
B     and fresh decision in the matter like the present one, is
      nothing but harassment of the litigant. The unnecessary
      delay in final disposal of a lis, shakes the faith of litigants
      in the court. [Paras 17 and 18] [744-G-H; 745-A-B]

C         Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and
      Ors. (1999) 3 SCC 722: 1999 (2) SCR 728 - relied on.

                       Case Law Reference

D         1999 (2) SCR 728         relied on.           Para 11

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      3066-3067 of2015.

          From the Judgment and Order of the High Court of Kerala
E     at Ernakulam dated 06.06.2013 and 07.02.2014 in Regular
      Second Appeal No. 188 of 2013 and Review Petition No.
      611 of2013 respectively.

            Harshad V. Hameed, Dileep Poolakkot, Ashly Hameed
F     for the Appellants.

          The Judgment of the Court was delivered by

       PRAFULLA C. PANT, J. 1. These appeals have arisen
G out of judgment and decree dated 6.6.2013,passed by the
  High Court of Kerala in Regular Second Appeal No. 188 of
  2013, whereby said appeal was allowed by the High Court.
  By the order dated 7.2.2014, passed by the High Court, Review
  Petition No. 611 of2013 in second appeal was dismissed.
H
           LI SAM MA ANTONY v. KARTHIYAYANI                        739
                  [PRAFULLA C. PANT, J.]

     2. We heard learned counsel for the parties and perused        A
the papers on record.

       3. Briefly stated, plaintiff Annamma Thomas (predecessor-
in-title of the present appellants) instituted suit No. 415 of 2005
before the Principal Munsiff, Alappuzha, for injunction B
restraining the defendants from trespassing into the property
mentioned in the schedule of the plaint, and from demolishing
its boundary. It is pleaded in the plaint that the plaintiff
Annamma and her two children Mathew and Benny were the
absolute owners of the property, which they purchased vide C
Sale Deed No. 824/80 dated 3.5.1980. They further pleaded
that they were in possession of the property. It is also pleaded
by the plaintiffs that the defendants are the Kudikidappukari
(persons holding tenancy rights) of the previous owners to the
                                                                     0
extent of 10 cents of property (1/10th of an acre), which is on
the northern side of the property in suit. The defendants were
 in possession of said part. It is further pleaded by the plaintiffs
 that boundary between the property in question and that of the
 defendants is well demarcated. It is alleged by the plaintiffs E
 that on 19.6.2005, the defendants attempted to demolish the
 existing fence. Therefore, the suit filed.

      4. The defendants filed written statement and additional
written statement, and contested the suit. They denied the F
title of the plaintiff over the land in question. They also denied
having attempted to demolish the fencing as alleged by the
plaintiff. It is stated in the written statement that mother of the
defendant No. 1 was given 10 cents of the land on the north of
'Thodu' (water channel), lying on the northern side of the G
property.

     5. The trial court framed as many as five issues, including
the issue relating to correctness of description of the property
in suit. After giving opportunity to the parties to adduce          H
740         SUPREME COURT REPORTS                     [2015] 3 S.C.R.


A     evidence, and after hearing them, the trial court found that the
      property in the suit is owned by the plaintiffs and decreed the
      suit with following directions: - ·.

           "1. The defendants are restrained by a decree of
B          permanent prohib~ory injunction from trespassing into
           the plaint schedule property i.e. property on the south
           of the boundary fence consisting of poovarash trees
           existing on the northern boundary of the plaint
           schedule property and from demolishing this
c          boundary.

           2. The northern boundary of the plaint schedule
           property is fixed as the existing boundary fence,
           constituted of poovarash trees i.e. 40 ems, to the south
D          of EF line of the C1 (b) plan. C1(b) plan is attached
           along with the decree."

        6. Aggrieved by said judgment, the defendants filed A.S.
    No. 123 of 2009 before the District Judge, Alappuzha. At the
E   appellate stage, the defendants sought to adduce additional
    evidence which was allowed by the first appellate court, and
    documents Ext. B-1 to B-9 were taken on record. The first
    appellate court, after hearing the parties, affirmed the decree
    of the trial court, vide its judgment and decree dated
F   19.10.2012, with following directions and modifications: -

          "In the result, the appeal allowed in part. Suit decreed
          fixing the northern boundary of plaintiffs property as
          EF line. Ext. C1 (b) plan will form part of the decree
G         and granted a permanent prohibitory injunction
          restraining the defendants from trespassing into the
          property of plaintiff or causing any kind of obstruction
          of its peaceful possession and enjoyment."

H
          LISAMMAANTONY v. KARTHIYAYANI                          741
               [PRAFULLA C. PANT, J.]

     7. Following reasons are given in para 8 of the judgment A
of the first appellate court for the above directions: -

    "On measurement by the commissioner it was found
    that 20 cents of property available and there is no
    reduction in extent. If that be so, the property can be       B
    located based on the title of plaintiff at first and the
    remaining 10 cents will go to the defendants as the
    defendants have obtained title subsequently under"
    Ext. B 1 document and that is what actually done by
    the commissioner who prepared Ext. C 1(b) plan. The           c
    existence of thodu and road in their respective
    properties will not affect their title. The commissioner
    who prepared Ext C1 (b) plan has located the property
    of 10 cents owned by the plaintiff as well as the 10
                                                                  D
    cents owned by the defendants and the dividing line
    correctly located as EF line in the plan. The location
    of Poovarash tree also located in the plan. The
    property is seen measured and located in reference
    to the old survey stones which are also located. All          E
    these would clearly show that the boundary line
    separating these two properties was fixed in
    accordance with the survey plan as well as document
    of title of plaintiff. So there cannot be any reason for
     interference to the finding of the survey line separating    F
    these properties. The place wherein the fencing
    situated not noted in Ext. C 1(b) plan. No attempt was
     made by the defendants in order to locate the place
    wherein the fencing is situated. There is no prayer
    for recovery of possession of any portion of property         G
    by the respective parties and hence the finding of the
     lower court that the EF line is the boundary line in
    between the property of plaintiff and defendants can
    safely accepted."
                                                                  H
742         SUPREME COURT REPORTS                      (2015] 3 S.C.R.


A         8. Dissatisfied from the decree of the first appellate court,
      the defendants filed Second Appeal No. 188 of 2013 before
      the High Court which was disposed of by said court vide
      impugned judgment and decree dated 6.6.2013.
                                              I

B          9. Paragraph 7 of the impugned judgment and decree,
      passed by the High Court, shows that the High Court framed
      following question as substantial question of law: -

           "Did the courts below go wrong in overlooking the
c          boundaries and descriptions in Ext. 81, which is a
           vital document so far as it relates to the identity of the
           property claimed by the defendants?"

          10. It is argued before us on behalf of the appellants that
D the High Court has erred in law in upsetting the concurrent
    findings of fact recorded by the courts below. On the other
    hand, learned counsel for the respondents contended that the
   appellants have still right to prove their claim as the matter has
    been remanded by the High Court to the trial court.
E
          11. It is settled principle of law that second appeal under
  ; Section 100 of the Code of Civil Procedure, 1908, cannot be
    admitted unless there is substantial question of law involved
    in it. As to what is substantial question of law, in Kondiba
F Dagadu Kadam v. Savitribai Sopan Gujar and others1, this
    Court has explained the position of law as under: -

           "6. If the question of law termed as a substantial
           question stands already decided by a larger Bench
G          of the High Court concerned or by the Privy Council
           or by the Federal Court or by the Supreme Court, its
           merely wrong application on the facts of the case
           would not be termed to be a substantial question of
           law. Where a point of law has not been pleaded or is
H
              LISAMMA ANTONY v. KARTHIYAYANI ·                      743
                   [PRAFULLA C. PANT, J.]

     found to be arising between the parties in the absence          A
     of any factual format, a litigant should not be allowed
     to raise that question as a substantial question of law
    ·in second appeal. The mere appreciation ofthe facts,
     the documentary evidence or the meaning of entries
     and the contents of the document cannot be held to              B
     be raising a substantial question of law. But where it
     is found that .the first aj!pellate court has assumed
     jurisdiction which did not vest in it, the same can be
     adjudicated in the second appeal, treating it as a
                                                                     c
     substantial question of law. Where the first appellate
     court is shown to have exercised its discretion in a·
     judicial manner, it cannot be termed to be an error
     either of law or of procedure requiring interference in
     second appeal."                                                 D
     12. In view of the above position of law, the question
formulated by the High Court in the present case, as quoted
above, cannot be termed to be a question of law, much less a
substantial question of law. The above question formulated is        E
nothing but a question of fact. Merely for the reason that on
appreciation of evidence another view could have been taken,
it cannot be said that the High Court can assume the
jurisdiction by terming such a question as a substantial question
of law.                              .• .                   \
                                                                     F
     13. Having gone through the impugned order challenged
before us and aner considering the submissions of learned
counsel for the parties, we are of the view that the High Court
has simply re-appreciated the evidence on record and allowed G
.         '                 .,
                                 ea
the second appeal and remand the matter t6 the trial court.
    .

    14: Rule 23 of Order XU of Code of Civil Procedure Code,         H
744          SUPREME COURT REPORTS                     [2015] 3 S.C.R.


A     1908, (for short ''the Code") provides that where the court from
      whose decree an appeal is preferred has disposed of the suit
      upon a preliminary point and the decree is reversed in appeal,
      the Appellate Court may, if it thinks fit, by order remand the
      case, and may further direct what issue or issues shall be tried
B     in the case so remanded, and shall send a copy of its judgment
      and order to the Court from whose decree the appeal is
      preferred, which directions to re-tidmit the suit under its original
      number in the register of civil suits, and proceed to determine
C     the suit; and the evidence (if any)recorded during the original
      trial shall, subject all just exceptions, be evidence during the
      trial after remand.

          15. Rule 23A of Order XU of the Code provides that where
      the court from whose decree an appeal is preferred has
0
      disposed of the case otherwise than on a preliminary point,
      and the decree is reversed in appeal and a re-trial is
      considered necessary, the Appellate Court shall have the same
      powers as it has under rule 23 ..

E         16. Rule 24 of Order   XU of the Code further provides that .
      where evidence on record is sufficient, appellate court may
      determine case finally, instead of remanding the same to the
      lower court.  , .·      ·     · · •        . .        ·    ·

F      / ·17. Needless to say, in the present case, the suit was not
  disposed of on any preliminary i.ssue by the trial court. The
  second appellate cduri s.hould have· restr~fned itself from
  remanding a case to the trial court. Rema11ding a c.ase for re-
  appreciation of evidence and fresh decision in the 'matter like
G the present one is nothing but harassrrient of the litigant. The
  unnecessary delay in final disposal of a lis, shakes the faitn of
  litigants in the court.

           18. With the above observations, after having found that
H
            LISAMMA ANTONY v. KARTHIYAYANI                         745
                 [PRAFULLA C. PANT, J.]

there was no substantial question of law involved in the second     A
appeal before the High Court, and that the High Court has, by
merely re-appreciating the evidence, reversed concurrent
findings of fact, and remanded the matter, we have no option
but to allow these appeals.
                                                                    B
     19. Accordingly the appeals are allowed. The impugned
judgment and decree dated 6.6.2013, passed by the High
Court in Regular Second Appeal NO. 188 of 2013 and order
dated 7.2.2014 in Review Petition No. 611of2013, passed
by the High Court, are set aside. The judgment and decree as C
modified by the first appellate court shall stand affirmed. There
shall be no order as to costs.

Kalpana K. Tripathy                             Appeals allowed.
                                                                    D