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2000 DIGILAW 294 (MAD)

Guruvapandaram (died) v. G. Guruswamy

2000-03-13

M.KARPAGAVINAYAGAM

body2000
JUDGMENT: This second appeal is directed against the decree and judgment in A.S.No.15 of 1987 on the file of the Principal Subordinate Judge, Erode, reversing the decree and judgment of the District Munsif, Bhavani, in O.S.No.157 of 1986. 2. The facts are these: "(a) Sithsuwamy, the respondent herein is the younger brother’s son of Guruva Pandaram, the appellant herein. He filed a suit against Guruva Pandaram in O.S.No.47 of 1986 for declaration of his half share in the suit property and for permanent injunction on the basis that the suit property, an extent of 2 acres of punja land is a joint family property. Guruva Pandaram the appellant herein also filed a suit in O.S.No.157 of 1986 for declaration of his title to the suit property and for injunction against Sithsuwamy. (b) Both the suit were tried together. The suit filed by Sithsuwamy in O.S.No.47 of 1986 was dismissed and the suit filed by Guruva Pandaram in O.S.No.157 of 1986 was decreed by a common judgment dated 24.11.1986 by the District Munsif, Bhavani. (c) Sithsuwamy filed two appeals against the judgment in the above two suits. The Principal Subordinate Judge, Erode, in A.S.No.14 of 1987 and A.S.No.15 of 1987 by the common judgment dated 26.8.1987 set aside the judgment of the trial court and decreed the suit in O.S.No.47 of 1986 filed by Sithsuwamy and dismissed the suit in O.S.No.157 of 1986 filed by Guruva Pandaram. Aggrieved by this, Guruva Pandaram filed S.A.No.1648 of 1987 as against A.S.No.14 of 1987 and S.A.No.25 of 1988 as against A.S.No.15 of 1987 before this Court." 3. S.A.No.25 of 1988 was numbered on 8.1.1988. This Court admitted the second appeal on 14.1.1988 on the following substantial question of law: (1) Whether without ancestral property or nucleus the property purchased by brother’s family partakes the character of H.U.F. property? (2) Can there be any inference of Hindu undivided joint family when the suit property was purchased in the joint names in Ex.A-1 and divided among themselves in a registered partition deed under Ex.B-2? (3) Whether the appellate court is right in presuming the existence of a Hindu undivided family on the basis of Exs.A-2 and A-3 in the face of Ex.B-2? (4) Whether the plaintiff is a member of a joint family? (5) Whether the suit without impleading the father of the plaintiff is not bad for non-joinder of necessary party? (3) Whether the appellate court is right in presuming the existence of a Hindu undivided family on the basis of Exs.A-2 and A-3 in the face of Ex.B-2? (4) Whether the plaintiff is a member of a joint family? (5) Whether the suit without impleading the father of the plaintiff is not bad for non-joinder of necessary party? (6) Whether the suit for declaration and injunction lies without setting aside the sale deed under Ex.B-3? 11. On the same day, this Court granted interim injunction in C.M.P.No.226 of 1988. The caveator took notice. He filed a counter on 3.3.1998. On 23.3.1988, the interim injunction was made absolute. 12. During the pendency of the second appeal, Guruva Pandaram, the appellant died on 31.7.1988. Therefore, his son Guruswamy filed petitions in C.M.P.No.10086 of 1990 to set aside the abatement and C.M.P.No.10087 of 1990 to bring him as the legal representation of the deceased appellant as the second appellant. These petitions were ordered on 6.8.1990. 13. But however, S.A.No.1648 of 1987 was dismissed on 19.7.1999 on the ground that the L.Rs. were not brought on record, giving the liberty to the parties to bring the L.R. petition is course of time. 14. When S.A.No.25 of 1988 (the present appeal) is taken up for final disposal, the learned counsel for the respondent, on the strength of the decisions reported in (1993)2 L.W. 209 , (1992)1 M.L.J. 457 , (1993)2 M.L.J. 674 and A.I.R. 1931 Mad. 277, would contend raising as a preliminary objection that once the connected appeal has been dismissed, this appeal cannot be proceeded with and so, the same has to be dismissed as res judicata. 15. On the other hand, the learned counsel appearing for the appellant, on the strength of the decisions reported in A.I.R. 1994 All. 66 and A.I.R. 1969 All. 504, would contend that when there are separate appeals, the abatement of one of them would not operate as res judicata and as such, the remaining appeals do not become incompetent. According to him, the finding or decision alone would operate as res judicata and not decree. 15-A. Both the counsel were heard on merits also. Before considering the merits of the appeal, it would be appropriate to decide over the issue of res judicata. 16. According to him, the finding or decision alone would operate as res judicata and not decree. 15-A. Both the counsel were heard on merits also. Before considering the merits of the appeal, it would be appropriate to decide over the issue of res judicata. 16. On going through the judgments rendered by the various High Courts cited by the counsel for the parties, the settled position of law relating to the res judicata as provided under Sec.11, C.P.C. is the following. 17. Sec.11, C.P.C. which creates the bar of res judicata, reads as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation I: The expression” former suit “ shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.” 18. As the words “has been heard and finally decided by such court” In Sec.11, C.P.C. would show that it is a decision which creates a bar of res judicata and not a decree. Sec.11. C.P.C. does not speak of a decree at all. Before Sec.11, C.P.C. can play, the matter in controversy must have been “finally decided”. 19. The principle of res judicata is based upon the maxim that no one shall be vexed twice over the same matter. The res judicata is either estoppel by verdict or estoppel by judgment. There is no such thing as estoppel by a decree. The determining factor is not the decree but the decision of the matter in controversy. 20. The bar of res judicata is not created by a decree, but by a decision. It is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. 21. The determining factor is not the decree but the decision of the matter in controversy. 20. The bar of res judicata is not created by a decree, but by a decision. It is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. 21. If several suits are decided by a common judgment and separate appeals are preferred, the appeals do not become incompetent merely on the ground that one of the appeals has abated or is dismissed on some grounds other than the merits of the appeal. Each appeal is preferred against the separate decree and even if appeal preferred is affirmed in one of the appeals. It does not operate as res judicata. It is the finding or decision which operates as res judicata and not a decree. 22. The above principles have been clearly laid down by the Full Bench of the Allahabad High Court in Jai Narain v. Bulaqi, A.I.R. 1969 All. 504, which were later reiterated in Tata Chemicals Limited, Bombay v. Sadhu Singh, A.I.R. 1994 All. 66. 23. In those decisions, our High Court’s view in Pappammal v. Meenammal, (1906) I.L.R. Mad. 333 and Subbiah Udyar v. Karuppiah Odayar, (1943)1 M.L.J. 1 : A.I.R. 1943 Mad. 139 (F.B.), I.L.R. (1965)1 Mad. 5 has been affirmed, besides referring to the various decisions of the Supreme Court. 24. The decisions reported in M.Subramania Mudaliar v. K.Janarthanam, (1993)2 L.W. 209 , Arumugha Nainar v. Lakshmana Perumal, (1992)1 M.L.J. 457 , Krishnamurthi v. Parasuraman, (1993)2 M.L.J. 674 and Saralaya v. Laxmi Hengsu,A.I.R. 1931 Mad. 277 would not be applicable to the present case, as those cases would deal with the failure of the parties to file an appeal against the judgment and decree in the connected suit. 25. Admittedly, in the present case, the two suits filed by the respondent and the appellant in O.S.Nos.47 of 1986 and 157 of 1986 on the file of District Munsif, Bhavani, were for the different reliefs and separate issues were framed. Though the common judgment was rendered in both the suits, against the findings with reference to the various issues framed by the trial court. the respondent herein filed two separate appeals before the lower appellate court. Though the common judgment was rendered in both the suits, against the findings with reference to the various issues framed by the trial court. the respondent herein filed two separate appeals before the lower appellate court. After hearing the counsel for the parties, the lower appellate court in a common judgment, set aside the decrees and judgment passed by the trial court and passed two separate decrees in favour of the respondent herein in A.S.Nos.14 of 1987 and 15 of 1987. 26. A.S.No.14 of 1987 filed by the respondent is against the judgment and decree passed in O.S.No.47 of 1986 dismissing the suit filed by him. A.S.No.15 of 1987 was filed by the respondent against the judgment and decree in O.S.No.157 of 1986 passed in favour of the appellant herein. After these appeals were allowed. the appellant filed S.A.No.1648 of 1987 as against the judgment and decree in A.S.No.14 of 1987 arising out of O.S.No.47 of 1986. He also filed separate appeal is S.A.No.25 of 1988 against the judgment and decree passed in A.S.No.15 of 1987 which arose out of O.S.No.157 of 1986. 27. S.A.No.1648 of 1987 was presented before this Court on 10.2.1986 and notice was sent on 8.12.1987. S.A.No.25 of 1988 was presented before this Court on 2.5.1986 and the notice was ordered on 2.2.1988. In the meantime, the appellant Guruva Pandaram died and his son Guruswamy filed petitions in C.M.P.Nos.10086 and 10087 of 1990 in S.A.No.25 of 1988 to set aside the abatement and to bring him on record and the name were allowed on 6.8.1990. But however, since no steps had been taken to bring on record the son of the deceased as a legal representative of the appellant in S.A.No.1648 of 1987, this Court dismissed the second appeal on 19.7.1999 as abated by giving the liberty to the legal representatives of the appellant to implead themselves in the appeal and to set aside the abatement and to argue the matter. At this stage, S.A.No.25 of 1988 alone has been listed before this Court, where the above said preliminary question has been raised. 28. At this stage, S.A.No.25 of 1988 alone has been listed before this Court, where the above said preliminary question has been raised. 28. To decide about the applicability of Sec.11 of C.P.C., some of the factual aspects have to be taken note of which are as follows: (1) Sithsuwamy, the respondent herein filed a suit in O.S.No.47 of 1986 seeking for declaration of his half share in the suit property, an extent of 2 acres of punja land and for permanent injunction. Guruva Pandaram, the appellant herein filed a suit in O.S.No.157 of 1986 for declaration of his title to the suit property and for permanent injunction. (2) In both the suits, the separate issues were framed. However, on a memo being filed by the counsel for the parties, joint trial was conducted. Ultimately a common judgment was rendered in both the suits dismissing the suit in O.S.No.47 of 1986 file day the respondent therein answering the relevant issues framed therein and allowing the suit in O.S.No.157 of 1986 filed by the appellant herein answering the issues framed therein and separate decrees were passed. (3) Against these decrees, two separate appeals had been filed by the respondent herein before the lower appellate court in A.S.No.14 of 1987 and A.S.No.15 of 1987. These appeals, were allowed though in a common judgment, separate decree were passed in favour of the respondent herein. As against this, these appeals in S.A.No.1648 of 1987 and S.A.No.25 of 1988 have been filed by the appellant. Out of these two appeals. S.A.No.1648 of 1987 was dismissed as abated in view of the death of the appellant on 19.7.1999. But, the son of the deceased appellant filed petitions to set aside the abatement and allow him to bring his name on record as the legal representative of the deceased in S.A.No.25 of 1988. Those were allowed on 6.8.1990. Thus, S.A.No.25 of 1988 was allowed to be prosecuted by the legal representative of the deceased. (4) But, recently on 19.7.1999 since no steps were taken to bring the L.R. On record in S.A.No.1648 of 1987, the same was dismissed. However, a liberty was given for taking steps to implead the legal representative of the deceased in the appeal and for setting aside the abatement and to argue the matter. (4) But, recently on 19.7.1999 since no steps were taken to bring the L.R. On record in S.A.No.1648 of 1987, the same was dismissed. However, a liberty was given for taking steps to implead the legal representative of the deceased in the appeal and for setting aside the abatement and to argue the matter. Therefore, there is no final judgment passed with reference to the finding given by the lower appellate court in A.S.No.14 of 1987. At the most, it can be stated that the decree in A.S.No.14 of 1987 was confirmed in S.A.No.1648 of 1987 not the technical reason that L.Rs. were not brought on record. It is thus obvious that there is no finding given in the order passed on 19.7.1999 by deciding the issue and after hearing the counsel for the parties. 29. Under those circumstances, the principles laid down in A.I.R. 1994 All. 66 and A.I.R. 1969 All. 504 as stated above, would be squarely applicable to the present case and therefore, I do not find any merit in the preliminary objection raised by the counsel for the respondent on the principle of res judicata. 30. In view of the above situation, by the dismissal of the connected appeal on the ground of abatement, this appeal would not become incompetent, as there is no finding or decision on the issue which alone would operate as res judicata. Hence, the contention of the counsel for the respondent has to fail. 31. Let us now come to the merits of the appeal. 32. Sithuswamy, the respondent herein filed a suit in O.S.No.47 of 1986 for declaration and permanent injunction in respect of his half share in the suit property on the ground that his father would not be competent to sell his share in the suit property which is a joint family property, in favour of Guruva Pandaram. According to the respondent Sithuswamy, the plaintiff in O.S.No.47 of 1986. the suit property was purchased by the defendant Guruva Pandaram, the first appellant herein and his father Matha Pandaram out of the sale proceeds of the ancestral property and therefore, the respondent has got half share and as such, his father cannot sell whole portion to the defendant, the first appellant herein. 33. the suit property was purchased by the defendant Guruva Pandaram, the first appellant herein and his father Matha Pandaram out of the sale proceeds of the ancestral property and therefore, the respondent has got half share and as such, his father cannot sell whole portion to the defendant, the first appellant herein. 33. The case of Guruva Pandaram, the first appellant herein is that the suit property along with another property were purchased by Guruva Pandaram and Matha Pandaram, the father of the respondent herein as self-acquired properties. Thereafter, in a position, the portion was allotted to Matha Pandaram in favour of the first appellant herein was valid and consequently, the respondent/plaintiff has no share in the suit property. 34. Both the plaintiff and the defendant had examined themselves as witnesses and produced two more witnesses on each side and marked several documents as their respective exhibits. 35. The main question that arises for consideration is whether the suit property is a self-acquired property by Guruva Pandaram, the first appellant herein and Matha Pandaram, the father of the respondent herein or not? 36. If it is found that the suit property was self-acquired property, the sale by Matha Pandaram in favour of Guruva Pandaram is valid. If it is not so, Sithuswamy, the respondent herein would be entitled to half share in the suit property. 37. According to Guruva Pandaram, the first appellant herein, Sithuswamy’s father Matha Pandaram and Guruva Pandaram are brothers. There was no ancestral property. Some properties were purchased out of their own earnings in the year 1949. Both were cultivating the properties jointly. In 1963 there was a partition between them. The suit property was allotted to Sithuswamy’s father. From then onwards, Sithuswamy’s father as the owner was in possession and enjoyment of the property. On 27.1.1985 Guruva Pandaram purchased the said property from Sithuswamy’s father. Since then Guruva Pandaram was in possession and enjoyment of the property. Since it was the self-acquired property by Matha Pandaram and Guruva Pandaram, Matha Pandaram had right to sell it to Guruva Pandaram. 38. P.W.1 Sithuswamy in his deposition would state that the suit property was purchased by his father and Guruva Pandaram along with other properties out of the sale proceeds of the ancestral property. Admittedly, there was no partition between his father and himself. 38. P.W.1 Sithuswamy in his deposition would state that the suit property was purchased by his father and Guruva Pandaram along with other properties out of the sale proceeds of the ancestral property. Admittedly, there was no partition between his father and himself. When the suit property was purchased out of the earnings from the ancestral property, from the father’s share, Sithuswamy, the son would be entitled to get half share. Such being the case, his father cannot sell the entire property to Guruva Pandaram. 39. This aspect had been elaborately dealt with by the trial court. It is the specific case of P.Ws.1 to 3, Sithuswamy and two others, that the suit property was purchased by Matha Pandaram and Guruva Pandaram only our of the sale proceeds of the ancestral properties. But except the oral evidence, there is no documentary evidence to prove that there were ancestral properties and those properties were sold at the relevant period and out of the said sale proceeds, the suit property was purchased in the year 1949. 40. Ex.B-1, the sale deed dated 25.4.1949 would show that one Chinnamuthu Reddiar and Ramalingam sold the suit property to Guruva Pandaram and Matha Pandaram. Ex.B-2, the partition deed dated 4.3.1963 entered into between Guruva Pandaram and Matha Pandaram would show that the properties were purchased in their names and the suit property being the ‘B’ schedule property was allotted to Matha Pandaram Ex.B-3, the sale deed dated 27.1.1985 executed by Matha Pandaram in favour of Guruva Pandaram, the first appellant herein, would clearly show that Matha Pandaram Purchased the suit property out of own earning and sold the same to Guruva Pandaram. 41. A perusal of these documents clearly show that ‘A’ schedule property and ‘B’ schedule property were originally self-acquired properties by Guruva Pandaram and Matha Pandaram out of their own earnings and after partition, the suit property was sold by Matha Pandaram to Guruva Pandaram for sale consideration. 42. As a matter of fact, the oral evidence of D.W.1 Guruva Pandaram supported by D.Ws.2 and 3 has been fully corroborated with Exs.B-1 to B-3. On the other hand, there is no document to show that the suit property was purchased out of the sale proceeds of the ancestral property, as projected by the respondent herein. 43. 42. As a matter of fact, the oral evidence of D.W.1 Guruva Pandaram supported by D.Ws.2 and 3 has been fully corroborated with Exs.B-1 to B-3. On the other hand, there is no document to show that the suit property was purchased out of the sale proceeds of the ancestral property, as projected by the respondent herein. 43. P.W.1 Sithuswamy would say that during the relevant time, there was no necessity for his father to sell the suit property as there was no loan incurred by him and consequently, Ex.B-3 sale deed was not a genuine document. However, this aspect has not been proved by Sithuswamy. The perusal of the deposition and other records would show that his father was very much available. Even then, the plaintiff Sithuswamy neither took any steps to examine his father as a witness nor made him as a party in the suit. 44. Under those circumstances, Ex.B-3 sale deed which had been executed by the father of the plaintiff cannot be challenged, especially when it is stated in the document by the father of the plaintiff, the respondent herein that the suit property was his self-acquired property. The relevant recital is this: 45. The lower appellate court mainly considered Ex.A-2 sale deed dated 9.4.1955 and Ex.A-3 sale deed dated 5.2.1976 which show that some of the properties were sold by Matha Pandaram as guardian for his children. But, as rightly pointed out by the trial court, Exs.A-2 and A-3 would not affect the recitals in Ex.B-2, the partition deed and Ex.B-3, the sale deed, since it has been specifically stated in these deeds that the suit property and other properties were purchased in the name of Guruva Pandaram and Matha Pandaram and the suit property had been sold by Matha Pandaram as self-acquired property. 46. When those documents are there to show that the properties were purchased in their names as self-acquired properties. It is for the plaintiff to prove that the suit property is not a self-acquired property and the same was purchased out of the sale proceeds of the ancestral property. 47. It is settled law that when a party claims in a suit that any particular item is a joint family property, the burden of proving the same rests on the party asserting it. 48. 47. It is settled law that when a party claims in a suit that any particular item is a joint family property, the burden of proving the same rests on the party asserting it. 48. No doubt, it is true that the suit property and other properties were purchased through Ex.B-1 in the year 1949 when both Guruva Pandaram and Matha Pandaram were living in a joint family. But, the proof of the existence of the joint family does not lead to the presumption that the property held by any member the family is joint and the burden rests upon any one asserting any item of property is a joint family property. Unless this burden is discharged by the plaintiff, the defendant cannot be found fault with for his failure to establish affirmatively that the property was acquired without the aid of the joint family properties. 49. But in the present case, as noted above, the documents and the oral evidence produced by the appellant would clearly show that the properties including the suit property were purchased jointly by Guruva Pandaram and Matha Pandaram in their names and after partition was effected, the suit property was allotted to Matha Pandaram and after enjoyment of the said property for about 20 years or so, Matha Pandaram sold it to Guruva Pandaram stating that he has got a right to sell it, as it was has self-acquired property. 50. In the above situation, the burden lies on the person who asserts that the suit property was purchased out of the sale proceeds of the ancestral property. 51. The trial court on consideration of the materials adduced by the parties, correctly concluded that this burden has not at all been discharged by Sithuswamy, the respondent herein, whereas Guruva Pandaram, the first appellant herein proved his case to entitle him for the relief of declaration of title in respect of the suit property. 52. The lower appellate court, while considering the above issue, mainly relied upon Ex.A-1, the partition deed and Exs.A-2 and A-3, the sale deeds in respect of other properties and concluded that the respondent would be entitled to the relief sought for in the suit. 52. The lower appellate court, while considering the above issue, mainly relied upon Ex.A-1, the partition deed and Exs.A-2 and A-3, the sale deeds in respect of other properties and concluded that the respondent would be entitled to the relief sought for in the suit. Whole referring to Ex.A-1/B-2, the partition deed dated 4.3.1963, the lower appellate court under the misconception observed that through the said partition deed not any the properties purchased in the names of Guruva Pandaram and Matha Pandaram, but also the other ancestral properties available at that time were partitioned between them. The relevant observation is this: 53. However, on a perusal of Ex.B-2, it is clear that the above observation of the lower appellate court is quite wrong. Ex.B-2, the partition deed would show that there was partition only in respect of the properties purchased in their names by the sale deed Ex.B-1, dated 25.4.1949 and it does not reveal that there was a partition in respect of the ancestral properties. 54. It is also observed by the lower appellate court that though these properties were purchased in 1949 in their names, the said properties were enjoyed along with other joint family properties, the ancestral properties and therefore, even assuming that the suit property is a separate property, it can be converted into a joint family property, when the same was enjoyed along with other joint family properties by the joint family. The relevant observation is as follows: 55.This observation also is wrong, in view of the fact that Ex.B-2, the partition deed does not refer about the enjoyment of the properties purchased by Guruva Pandaram and Matha Pandaram along with the other ancestral properties as joint family properties. 56. As indicated earlier, the partition deed only in respect of the properties purchased by both of them in their names not in respect of any other property. As noted above, mere reference in Ex.B-2 that both Guruva Pandaram and Matha Pandaram were living together or mere proof of the existence of the joint family does not lead to the conclusion that the properties purchased by them were treated as joint family properties enjoyed by all the family members of the family along with the ancestral properties. 57. As noted above, mere reference in Ex.B-2 that both Guruva Pandaram and Matha Pandaram were living together or mere proof of the existence of the joint family does not lead to the conclusion that the properties purchased by them were treated as joint family properties enjoyed by all the family members of the family along with the ancestral properties. 57. Ex.A-2 dated 9.4.1955 and Ex.A-3 dated 5.2.1976 would have no bearing, since the sale deed Ex.A-4 executed by Matha Pandaram in favour of Guruva Pandaram on 27.1.1986 was only in respect of the properties which were partitioned between them under Ex.A-1 dated 4.3.1963 and which was purchased by them from the vendors under Ex.B-1 on 25.4.1949 consequently, it can be safely concluded that Sithuswamy, the respondent herein has neither proved that the properties in question were purchased out of the sale proceeds of the ancestral properties nor established that these properties were enjoyed by all the family treating them as joint family properties along with the other ancestral properties. 58. Under those circumstances, the lower appellate court has committed a very grave illegality in giving the wrong finding on the basis of the misconception by misinterpreting the recitals of Exs.A-1 to A-3. Therefore, the finding given by the trial court with reference to the declaration of title in respect of the suit property in favour of the first appellant Guruva Pandaram is correct. 59. In regard to the possession, though the trial court considered all the documents, namely, Exs.B-4 to B-7 and observed that prior to the date of purchase, namely, 27.1.1986, it was enjoyed the Matha Pandaram exclusively and subsequently, the same has been in possession and enjoyment of the first appellant herein, the first appellate court by simply rejecting the evidence of D.Ws.1 to 3 and the documents Exs.B-4 to B-7 without giving any reason, gave the wrong finding that the respondent is in possession of the suit property, the relevant observation is this: 60. Thus, without analysing and discussing the evidence of D.Ws.1 to 3 and Exs.B-4 to B-7, the first appellate court simply disbelieved them by blindly accepting the contention of the respondent that Exs.B-5, B-6 and B-7 were created on the basis of the sale deed executed by Matha Pandaram in favour of Guruva Pandaram. Thus, without analysing and discussing the evidence of D.Ws.1 to 3 and Exs.B-4 to B-7, the first appellate court simply disbelieved them by blindly accepting the contention of the respondent that Exs.B-5, B-6 and B-7 were created on the basis of the sale deed executed by Matha Pandaram in favour of Guruva Pandaram. This approach in my view, is perverse, especially when the original documents issue by the Revenue Authorities have been filed and the oral evidence have been adduced in support of them and more particularly when Matha Pandaram, the father of the respondent was not made as a party nor was he examined by the respondent in support of his case. 61. On the other hand, the trial court considered Ex.B-4 dated 21.2.1986, the kist receipt obtained by Guruva Pandaram, Ex.B-5 dated 28.8.1986, Land-tax Planning Register showing the name of Guruva Pandaram and Ex.B-6, the Adangal showing the enjoyment of the property upto fasli 1384 would show that the first appellant herein had been in continuous enjoyment and possession. 62. Moreover, when this Court entertained this appeal, granted interim injunction in favour of the appellant herein and it was made absolute after hearing the respondent. 63. It is settled law that when the first appellate court failed to consider the relevant documents in proper perspective and effect of those documents on the rights of the parties, this Court is entitled to reconsider the evidence and set aside the findings of the first appellate court when the same are not supported by evidence and when they are based on misconception and erroneous approach. 64. As a a matter of fact, it is specifically held by the Apex Court that it is the duty of the High Court to consider whether the reasons given by the lower appellate court are sustainable in law and if the reasons given by the court below are flimsy, then the substantial question of law would certainly arise. 65. The jurisdiction of this Court under Sec.100, C.P.C. is very peculiar. It is neither as wide as under Sec.96, C.P.C. (Appeals) nor as restricted as under Sec.115, C.P.C. (Revision). 65. The jurisdiction of this Court under Sec.100, C.P.C. is very peculiar. It is neither as wide as under Sec.96, C.P.C. (Appeals) nor as restricted as under Sec.115, C.P.C. (Revision). Where the first appellate court failed to draw the proper inference from proved facts and to apply law in proper perspective, the High Court, in second appeal, would be justified in drawing proper inference form such proved facts and such interference by the High Court would be proper. 66. When the error of law committed by the lower appellate court is so patent and substantial, it calls for interference under Sec.100, C.P.C. by this Court. 67. The above principles have been laid down by the Apex Court in Nehrunnisa v. Visham Kumari, A.I.R. 1998 S.C. 427 and Sitaramacharya v. Gururajacharya, (1997)2 S.C.C. 548 . 68. In the light of these principles and for the reasons mentioned above, I am of the view that the judgment and decree passed by the first appellate court are liable to be set aside and accordingly, the same are set aside. Consequently, the judgment and decree passed by the trial court are restored. In fine, the second appeal is allowed. No costs.