# Ahmed At!am Sai t v. Iriayathul foh M ~khri

- **Citation:** [1964] 2 S.C.R. 673
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** l:'. B. GAJENDRAGADKAR, K. N. Wanchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmed-at-am-sai-t-v-iriayathul-foh-m-khri-2952
- **Pages:** 13

## Headnote

Civil Procedure-Concurrent findings of fact-Powers of
.<econd
app.Zlate court-Insufficiency of evidence, if a ground
for interference--Equity, if must yield to expre.ss provisions of
/;xw-Single Judge's deci8ion-Grant of Special Leave-Constitution of India (1950), Art, 133 (3)-Code of Civil Procedure, 1908 (Act V of 1908), s. 100.
The appellants' father bought 35 years hefore the date of
the suit 40 acres of land from one Krishnappa out of his land
measuring 166 acres.
After the purchase
the appellants'
1963
Ahmed At!am Sai t
v.
Iriayathul foh M ~khri
Goj~ndrogotJkar J.
1963
M11.rrh 29
19IJ
Mt1tfmnanchi
Ra,..;;•
..
Muthtdur B•jj•H•
674 SUPRE\lE COURT REPORTS [1964] VOLfather obtained possession and continued in possession <luring his
life time. On his death tbe appellant's mother as their guardian remained in possession until 1947. The respondent obtained a 1nortgage decree against Krishnappa and in pursuance
of the decree brought the p1 uperty tu sale and at the court sale
the respondent himself hought the pioperty in 1943. In 1947
he managed to enter upon the land in suit unlawfully. There·
upon the appellants filed the present suit. The appellants'
case was that the mortgage did not affect the appellants' title to
the property which had already been purchased by their
father and therefore the decree passed in the mortgage suit and
the auction sale
held
thereunder tlitl not bind them.
They claimed a declaration of their title and asked for
a decree for possession and
me.~·ni; profits.
The respondent
dmied that the appellants' father purchased the property from
Krishnappa and asserted that they were cultivating the land
as Krishnappa's tenants and therefore the mortgage, the
mortgage decree and the auction sale 'vere binding against them.
The ti ial Court on an exa1nination of the documentary
as well as the oral evidence gave a finding in favour of the
appellants both in rt"Spect of their title and their possession.
Thereupon the respondent appealed to the District Judge
who concurred with the trialJudge in his findings of fact and
found that the appellants had proved both "their title and
their po,.ession within 12 years before the date of the suit.
Neither in the trial Court nor in the first appellate court any
question of construction of any document or any question of
drawing an inference of law arose. The questions which arose
were simple questions of fact.
The respondent appealed to the High Court and the
appeal was heard by a singlejudge.
Under the misconception
that ajudge is entitled in second appeal, to interfere with
even concurrent findings of fact of the courts below not only
where the said conclusions are based on no evidence but also
where the said conclusions are based on evidence which the
High Court considers insufficient to support them, the learned
single Judge examined the whole evidence and upset the con·
current findings of fact given by the courts below. The appeal
was allowed and the present appeal is hy way of special leave
granted by this Court. The main q uestiun raised in the appeal
was whether the High Court has transgressed the limits prescribed by s. 100 Code of Civil Procedure in interfering in the
concurrent findings of fact given by the two courts below.
Held that it has always been recognised that the sufficiency
or adequacy of rvidence to support a finding uf hct is a
2 s.c.F..
SUPREME COURT REPORTS 675
matter for decision of the courts of facts and cannot be
agitated in second appeal.
There is no juti.>diction to entertain a second appeal on
the ground of erroneous findinrss of fact ho\vever gross or inexcusab]e the error may seem to be.
YVhcnever this Court is
satisfied that in dealing with a second appeal the High Court
has, contravened the limits prescribed bys. 100 Code of Civil
Procedure it becomes the duty of this Court to intervene and
givt: effect to the said provisions.
The High Court cannot interfere with the concurrent
findings of fact on grounds of equity and justice because

## Text

2 S.C.R.
SUPREME COURT REPORTS
673
alternative basis, the plea of res judicata may be
upheld; but an occasion will clearly arise for either
clarifying the scheme or redically changing it so as
to make the other worshippers eligible for appointment as Trustees.
In the result, we reject all the contentions
raised by the appellents
and confirm the findings
recorded by the High Court in favour of the respondents. We are, however, not inclined to affirm the
order of remand passed by the High Court, because
we have held that the scheme framed in 1927 should
be left as it is with the modifications which we have
indicated in our judgment. Therefore, the order of
remand passed by the High Court is reversed and
the
respondents' claim for a
modified
scheme
allowed.
The appeal is di,missed with the above
modifications.
The appellants will pay the costs of
the contesting respondents throughout.
MADAMANCHI RAMAPPA & ANR.
v.
MUTHALUR BOJJAPPA
(l:'. B. GAJENDRAGADKAR, K. N. WANCHOO
and K. C. DAS GUPTA JJ.)
Civil Procedure-Concurrent findings of fact-Powers of
.<econd
app.Zlate court-Insufficiency of evidence, if a ground
for interference--Equity, if must yield to expre.ss provisions of
/;xw-Single Judge's deci8ion-Grant of Special Leave-Constitution of India (1950), Art, 133 (3)-Code of Civil Procedure, 1908 (Act V of 1908), s. 100.
The appellants' father bought 35 years hefore the date of
the suit 40 acres of land from one Krishnappa out of his land
measuring 166 acres.
After the purchase
the appellants'
1963
Ahmed At!am Sai t
v.
Iriayathul foh M ~khri
Goj~ndrogotJkar J.
1963
M11.rrh 29
19IJ
Mt1tfmnanchi
Ra,..;;•
..
Muthtdur B•jj•H•
674 SUPRE\lE COURT REPORTS [1964] VOLfather obtained possession and continued in possession <luring his
life time. On his death tbe appellant's mother as their guardian remained in possession until 1947. The respondent obtained a 1nortgage decree against Krishnappa and in pursuance
of the decree brought the p1 uperty tu sale and at the court sale
the respondent himself hought the pioperty in 1943. In 1947
he managed to enter upon the land in suit unlawfully. There·
upon the appellants filed the present suit. The appellants'
case was that the mortgage did not affect the appellants' title to
the property which had already been purchased by their
father and therefore the decree passed in the mortgage suit and
the auction sale
held
thereunder tlitl not bind them.
They claimed a declaration of their title and asked for
a decree for possession and
me.~·ni; profits.
The respondent
dmied that the appellants' father purchased the property from
Krishnappa and asserted that they were cultivating the land
as Krishnappa's tenants and therefore the mortgage, the
mortgage decree and the auction sale 'vere binding against them.
The ti ial Court on an exa1nination of the documentary
as well as the oral evidence gave a finding in favour of the
appellants both in rt"Spect of their title and their possession.
Thereupon the respondent appealed to the District Judge
who concurred with the trialJudge in his findings of fact and
found that the appellants had proved both "their title and
their po,.ession within 12 years before the date of the suit.
Neither in the trial Court nor in the first appellate court any
question of construction of any document or any question of
drawing an inference of law arose. The questions which arose
were simple questions of fact.
The respondent appealed to the High Court and the
appeal was heard by a singlejudge.
Under the misconception
that ajudge is entitled in second appeal, to interfere with
even concurrent findings of fact of the courts below not only
where the said conclusions are based on no evidence but also
where the said conclusions are based on evidence which the
High Court considers insufficient to support them, the learned
single Judge examined the whole evidence and upset the con·
current findings of fact given by the courts below. The appeal
was allowed and the present appeal is hy way of special leave
granted by this Court. The main q uestiun raised in the appeal
was whether the High Court has transgressed the limits prescribed by s. 100 Code of Civil Procedure in interfering in the
concurrent findings of fact given by the two courts below.
Held that it has always been recognised that the sufficiency
or adequacy of rvidence to support a finding uf hct is a
2 s.c.F..
SUPREME COURT REPORTS 675
matter for decision of the courts of facts and cannot be
agitated in second appeal.
There is no juti.>diction to entertain a second appeal on
the ground of erroneous findinrss of fact ho\vever gross or inexcusab]e the error may seem to be.
YVhcnever this Court is
satisfied that in dealing with a second appeal the High Court
has, contravened the limits prescribed bys. 100 Code of Civil
Procedure it becomes the duty of this Court to intervene and
givt: effect to the said provisions.
The High Court cannot interfere with the concurrent
findings of fact on grounds of equity and justice because what
is administered in courts is justice according to la\\' and considerations of fair play and equity, however important they
inay be, must yield to clear and express provisions of the law·.
M'""summat D·urgu Choudrain v. Jawahir Singh Choud.iri,
(1890) L. R. l 7 I. A. 122, Deity Pattabhirama,wamy v. S.
Hanymayya, A. I R. I959 S. C. 57, and R. Ramacha.ndra
Ayyar v. Ramalingam [1963] 3 S. C.R. 604 referred to.
CrvrL APPELLATE JURISDICTION : Civil Appeal
No. 376 of 1961.
Appeal by special leave from the judgment and
decree dated March 5, 1959, of the Andhra Pradesh
High Court, in Second Appeal No. 545 of 1955.
M. Rajagopal and J(. R. Chaudhuri, for the
appellants.
A. V.
Vi~wanatha Sastri and B. K. B. Naidu,
for the respondent.
1963. March 29. The Judgment of the Court
was delivered by
1963
Matfawumdii
RamaPfta
v.
Mulh12lur Bojjapf;a
GAJEIWRAGADKAH J.-This appeal by special
Gajo.<iragac11a, J.
leave is directed against the decision of a learned
single Judge of the High Court of Andhra Pradesh
in a second
appeal preferred before it by the
respondent. There is no .doubt that under Art.133(3)
of the Constitution, no appeal lies to this court from
the judgment, decree, or final order of one Judge
1963
}JotfamOICc/ii
Rama/Jlla
v.
Mfjlholur Bojjappa
Gojtndragadkar I.
676
SUPREME COURT REPORTS [1964) VOL.
of a High Court, and it has been the consistent
practice of this Court nut to encourage applications
for special leave against the decisions of the High
Courts rendered in second appeals; but in cases where
the petitioners for special leave against the second
appellate judgments delivered by a single Judge of
the High Court arc able to satisfy this Court that in
allowing a second
appeal,
the High Court has
interfered with questions of fact and has thus contravened the limits prescribed by section 100 of the Code
of Civil Procedure, it is not easy to reject their claim
for special leave.
As early as
1890 in the case
of .illussummat /)urgr1 Clwwlhrai11 v . .Jawahfr ,''ingh
Choudhri, (1 ), the Privy Council emphatically declared
that under s.584 of the earlier Code, which corresponds Lo s. 100 of the present Code, there is no
jurisdiction to eptertain a second appeal on
the
ground of erroneous finding of fact, however gross or
inexcusable the error 111ay seem Lo be; and they added
a note of warning that no Court in India has power
to add to, or enlarge, the grounds specified in s. I 00.
The appellants" contention in the present appeal is
that this warning has been patently disregarded and
in allowing the respondent's appeal against them,
the second appellate Court has
interfered
with
concurrent findings of fact.
That is the sole ground
on which leave has been granted to the appellants
and on which we propose to allow this appeal.
The facts leading to the present appeal are
not many and they lie within a very narrow compass.
Survey
No.440-B situated
in
Rakatla village
originally belonged to one Hoya Krishnappa and
it measured I li6
acres. In the suit filed by the
appellants in the Court of Subordinate Judge,
Anantapur in 1951 (0. S. :No. 72 of 1953), the
appellants alleged that 40 acres out of the said
land had been purchased by their father, Chinna
Venkataramanappa
from Boya Krishnappa about
35 years before the date of the suit for consideration.
(1) (1890) L. R. 17 I. A. 122.
..
2 S.C.R.
SUPREME COURT REPORTS
677
After the sale took place, the appellants' father
obtained possession of the property and continued in
possession during his lifetime.
On his death, the
appellants' mother acting as their guardian remained
in possession and _management of the said property
until 1947.
The appellants' family had been paying
the assessment for the land all the time and had
been in its possession in an open and peaceful manner
until 1947.
It appears that the respondent had obtained a
mortgage decree in 0. S. No. 94/1940 against Boya
Krishnappa in respect of the entire Survey No.440-B
and in pursuance of the said mortgage decree,
brought the mortgaged property to sale.
At the
court sale, the respondent purchased the property
himself in about 1943, and thereafter he began to
obstruct the possession of the appellants. In Hl47,
the respondent managed to enter upon the land in
suit unlawfully and that gave rise to the present
suit.
The cause of action for the suit is thus the
wrongful
dispossession
of the appellants by the
respondent by about 1947.
The appellants pleaded
that though Boya Krishnappa may have included
the suit property in the mortgage deed executed by
him in favour of the respondent on July 31, 1929,
the said mortgage did not affect the appellants'
title to the property which had
already been
purchased by their father from the said Krishnappa,
and· so, the decree passed in the mortgage suit, and
the auction sale held thereunder did not bind them.
It is on these allegations that the appellant claimed
a declaration of their title to the suit property and
asked for a decree for possession as well as mesne
profits, past and future.
This claim was resisted by the respondent.
He denied that the appellants' father had purchased
the property from Krishnappa and that the assessment for the land had ever been paid by the
1963
Madaman;hi
Ramappa
v.
Muthalur Bojjappa
Gajendragadkar J.
/9fj3
.\-f1itl'n,.,nrhi
Ram>pf>a
v.
.\{"thalur Bnjj11pp11
1378
SUPREME COURT REPORTS [1964] VOL.
appellants' family as owners.
According to him,
the appellants had been cultivating the land in suit
as tenants of Boya Krishnappa, and so, the mortgage
executed by Krishnappa in his favour was binding
against them and so was the mortgage decree and
the auction sale that followed it.
On these
pleadings, the trial Court framed
two substantive issues.
The first issue was whether
the appellants were entitled to the suit property and
whether they were in possession within 12
years
prior to the date of the suit, and the second issue
was whether the court sale set up by the respondent
h.1d t~ken place and was binding on the
appellants.
B"tl1 the'e issues were answered by the trial .Judge
in Lvour of the appellants.
On the question about
the appellants' title, the trial Judge placed the
burden on the appclbnts and noticed the fact that
the appellants ha<l not produced any sale-deed to
evidence the
t ransactioll of sale, nor had
they
produced a patta.
He, however, exarnin~d the other
docum~ntary 1·vidence adduced by appellants and
found that the said evidence satisfactorily proved
both their title and their possession within 12 years
before the date of the suit.
Exhibit A-8 is certified
copy of the Changes
Regist~r of Rakatla village.
This
document showed
the
names of Boya
Krishnappa and Vcnkataramanappa, the father of
the appellants as the l'attadars.
After the <:Jeath
of Vcnkataramanappa a circle was p•1t round his
name and a remark was made against it that since
he had died, his sons, the appellants Venkanna and
Ramappa,
minors
represented by
their mother
Lakslunamma as their g11ardia11, were registered as
l'a1tadars.
Acccording to the trial Judge, this entry
must have been made prior to I 92fi, because in !92fl,
I !l:!i and
I ()28
there were no further
changes.
Then the trial Judge examined
Ext. A· I which
showed that the Kulam >lumber of 440-B was
mentioned μs 210,
1\ nLJmber of cist receipts were
-
2 S.C.R.
SUPREME GOUR T REPORTS
679
produced by the appellants (Exts. A-2 to A-5 and
A-9 to A-35), and the trial Court came to the conclusion that these documents showed that throughout the period, the cist in respect of the land in sc1it
was paid by the appellants' family. In fact, the
respondent clearly
admitted that the appellants'
family had been in possession of the land, but he
explained the said possession on the allegation that
they were the tenants of Boya Krishnappa. The
revenue documents on which the appellants relied
were sought to be explained away by the respondent
on the ground that the village officers were his
enemies and they had fabricated the cist receipts.
These coe1tentions were rejected by the trial Court,
and giving effect to the documentary evidence, it
made a finding in favour of the appellants both in
respect of their title and their possession within 12
years from the date of the suit.
The fact that the
appellants' father's name was not shown in the diglot exhibit B-1, did not appear material to the trial
Court, because the said register was published in
1927 and at the time when it was prepared, the
information about the transaction in favour of the
appellant's father may not have reached th~ revenue
officers.
It is true that the appellants had sought to
prove their possession
of the land by producing
certain rent notes alleged to have been executed in
their favour by their tenants (Exts. A-6, A-7, A-36
& A-37), but the trial Court thought that these
docu~ents could not be accepted as satisfactory or
genume.
The trial Court then considered one circumstance which was against the appellants and on
which the respondent relied.
It appears that when
the respondent put the mortgaged properties to sale
in execution of his
mortgage
decree
against
Krishnappa, a Commissioner was appointed to value
the crops standing in the land and in those proceed·
ings, the appellants stood sureties for the crops at
Madamo.nchi
R•m•PP.
v.
Muthalur Bojjappa
C::ajendratadkar J.
1963
,4,fnJ1111111TJch•
Ramn>~"
v.
.~lutl1~i/11r Bn,~nppa
680
SUPREME COURT REPORTS [1964] VOL.
the insta11cc of Krishnappa. The respondent's contention was that crops were standing on the suit
laud and that the appellants would not offer to give
sccurit y
for the said crops when the mortgagor
Krishnappa was directed to furnish security for the
value of the crops on the lands covered by the
mortgage if they had been 1hc ow!lcrs of a part of
1he property.
The trial Cuurt was 11ut impressed by
this argument because it was
r:ot
satisfied
that
the circumstances under which the said suretv bond
was executed clearly showed that the appella~ts had
furnished security for any crops standing on the land
at present in suit.
It
clearly appears from the
Commissioner's report then made that crops were
<landing on a small portion of the entire survey
i\o. 145.B. The security bond was in English and
there was nothing to show that the surety offered
by the appellants had anything to do with any crop
~tanding 011 their land.
That is why the trial Court
was not prepared to attach any significance to this
c ircumst:u;rc
Since it found
that the
property
belonged to the appellants' family either by transfer
or by reason of adverse possession, it held 1hat the
mortgagc executed by Krishnappa in favour of the
respondent and subsequent proceedings under the said
mortgage did not affect the appellant's title. That
is how the suit filed by the appellants was decreed.
The respondent challenged
this decree
by
preferring an appeal in
th~ Cc•urt of the District
Judge at Anantapur.
The learned District .Judge
framed one comprehensive point for determination
and that was : whether the appellants had proved
title to and possession of the suit property within 12
y~ars before tht". date of their suit.
Both parts of this
issue were answered by him in favour of the appellants. Like the trial Court. he also noticed the fact
that there was no sabdeed or patta on which the
appellants relied, hut he considered the oral and
docu111cntary cvidmce produced by both the parties
.....
2 S.C.R.
SUPREME COURT REPORTS
681
and held that the trial Judge was right in the findings recorded by him. In his opinion, "the entire
evidence in
the case and the probabilities and
circumstances made out by unimpeachable documentary evidence helped the appellants to prove
both their title and their possession within 12 years
before the date of the suit." Both the courts have
noticed the fact that the respondent himself had
admitted that about 20 or 25 years ago,
all the
lands in the locality including surevy No. 440-B
were ba nj ar, they were of no value and people were
getting them for the mere asking.
In fact, the
mortgage deed executed in favour of the respondent
supports this admission. The mortgage was in regard
to 166 acres and the amount advanced was Rs. 650/-
only.
This aspect of the matter has relevance
in dealing with the question as to whether a registered
document was necessary to convey title to the appellants' father in respect of the property iu suit.
It will thus be seen that the effect of the
findings concurrently recorded by the courts of fact
is
very clear. The property in suit when it was
purchased was not shown to be worth more than
Rs. 100/- and so, it was not unlikely that a sale as
alleged by the appellants may have taken place
between their father and Krishnappa; but since the
evidence about the said sale was not satisfactory, the
two courts considered their evidence about possession
with a view to decide whether they had established
a posscssory title as claimed by them.
The possession of the land was admitted to be with the appellants' family for more than the statutoty period and
as such, it was open and continuous. The plea of
the respondent that the said possession was that of
a tenant was rejected, and so, the said possession
in law was adverse against the whole world. It was
also clear that the possession
continued until 194 7
which was within twelve years before the date of
the suit, Thrse findings were based on appreciation
19~3
Madamanc~i
RtJm(fPJ•a
••
Muthalur Bojjappa
Gaj~ndragadkar J,
1963
Maiamanchi
R1mappa
••
Mutltaltir Bojjappa
fiaju1r/r1gadl.11r J.
682
SUPREME COURT REPORTS [1964) VOL.
of oral and documentry evidence examined in the
light of the circumstances of the case
and the
probabilities.
~o question of construction of any
document arose,
nor did any question of drawing
an inference of law arise in this case.
The questions
which arose were simple questions of fact and on
them concurrent findings were recorded by the two
courts.
Aggrieved by the decree passad in his appeal
by t'1c
District Court, the respondent moved the
High Court un:lcr section I 00 C. I'. C., and his
appeal was heard by Sanjecva H.ao Nayudu J.
The
learned Judge emμhasi;cd the fact that no sale deed
had been produced by the appellant~ to prove their
title, and then examined the documentary evidence
on which they relied.
He was inclined to hold that
Ext.
A-8 had not been proved at all and could not,
therefore, be received in evidence. It has been fairly
conceded by :-.-tr. S.1s1ri fur the respondent before us
that this was plainly erroneous in law.
The document in question being a certified copy of a public
document need not have been proved by calling a
witness.
Besides, no objection had
been
raised
about the mode of proof either in the trial Court or
in the
District
C'."lurt.
The learned .Judge then
examined the question as to whether the said document was genuine, and he thought that it was a
doubtful document and no weight could be attached
to it. A similar comment was made by him in respect
of the cist receipts on which both the courts of fact
had acted.
In his opinion, the said documents were
also not genuine and could not be accepted as reliable.
He then referred to the fact that the appellants had
offered security in procee<lings between the respondent and his judgment-debtor Boya Krishnappa, and
held that the said conduct destroyc<l the appellants'
case; and he also relied on the fact that the leasedeeds produced by the appellants.had been d!sbeJieved and that also weakened their case. It 1s on
2 S.C.R.
SUPREME COURT REPORTS
683
these considerations that the learned Judge set asiile
the concurrent findings recorded by the courts below,
allowed the second appeal preferred by the respondent and directed that the appellants' suit should
be dismissed
with
costs throughout. It is the
validitv of this decree which is challenged bef0re us
by the appellants and the principal ground on which
the challenge rests is that in reversing concurrent
findings of fact recorded by the courts below, the
learned Judge has clearly contravened the provisions
of s. 100 of the Code.
The question about the limits of the powers
conferred on the High Court in dealing with second
appeals has been considered by High Courts in India
and by the Privy Council on several occasions.
One
of the earliest pronouncements of the Privy Council
on this point is to be found in the case of llfst. Durga
Ohoudhrain (1).
In the case of Deity Pattabhiramaswami v. S. Hanymayya (2), this Court had occasion
to refer to the said decision of the Privy Council and
it was constrained to observe that "notwithstanding
iuch clear and authoritative pronouncements on the
scope of the provisions of s. 100, C. P. C., some
learned Judges of the High Courts are disposing of
second appeals as if they were first appeals.
This
introduces, apart from the fact that the High Court
assumes and exercises a jurisdiction which it cloes not
possess, a gambling element in litigation and confusion in the mind of the litigant public." On this
ground, this Court set aside the second appellate
decision which had been brought before it by tile
appellants.
In R. Ramachandra Ayyar v. Ramalingam
0 hettiar ('), this Court had occasion to revert to the
same subjec1 once again.
The true legal position
in regard to the powers of the second appellate
Court under s. 100 was once more ex:amined and it
was pointed out that the learned Judges of the
!I) (1890) L.R. 17 l.A. 122.
(2J A.LR 1959 S.C. 57.
,(3) [ 1963] 3 S.C.R. 601.
1963
Madimanchi
Ramappa
••
Mutlitilur Bf1jj~ppa
Gajt,ndragad.kar J
1963
Madama11ehi
Ramoppa
v.
Mullialllr Bojjappa
G11jt11dragadka1 J
684
SUPREME COURT REPORTS [1964] VOL.
High Courts should bear in mind the caution and
warning pronounced by the Privy Council in the
case of Mst. Durga Chowdhrain (') and should not
interfere with findings of fact.
It appears that the decision of this Court in
Deity Pattabhimm.aswamy ('),
was in
fac~ cited
before the learned single Judge, but he was inclined
to take the view that some aspects of the provisions
contained in s. JOO of the Code had not been duly
considere.<l by this Court and so, he thought that it
was open to him to interfere with the conclusions of
the courts below in the present appeal.
According
to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact
recorded by the District Judge not only where the
said conclusions are based on no evidence, but also
where the said conclusions an; based on evidence
which
the High Court considers
insufficient
to
support them. In other words, the learned Judge
seems to think that the adequacy or sufficiency of
evidence to sustain a conclusion of fa~t is a matter
of law which can be effectivdy raised in a second
appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of
evidence is no doubt a point of law, but once it is
shown that the evidence on which courts of fact
have acted was admissible and relevant, it is not
open to a party feeling aggrieved by the findings
recorded by tht> courts of fact to contend before the
High Court in second appeal that the said evidence
is not sufficient to justify the findings of fact in
question. It has been always recognised that the
sufficiency or adequacy of evidence lo support a
finding of fact is a matter for decision of the court
of facts and cannot be agitated in a second appeal.
Sometimes, this position is expressed by saying that
like all questions of fact, sufficiency or adequacy of
evidence in support of a case is also left to the jury
for
its
verdict.
This position has always been
(I) (1890) L.R. 171.A. 122
(2)11963]3 s.o.R. !i(K.
2 S.C.R. SUPREME COURT REPORTS
685
accepted without dissent and it can be stated with·
out any doubt that it ·enunciates what can be pro·
perly characterised as an elementary proposition.
Therefore, whenever this Court is satisfied that in
'iealing with a second appeal, Ll1c High Court has,
either unwittingly and in a casual manner, or
deliberately as in this case, contravened the limits
prescribed by s. 100, it becomes the duty of this
Court to intervene and give effect to the said provisions. It may be that in some cases, the High
Court dealing with the second appeal is inclined to
take the view that what it r~gards to be justice or
equity of the case has not been served by the findings of fact recorded by courts of fact; but on such
occasions it is necessary to remember that what is
administered in courts is justice according to law and
considerations of fair play and equity however
important they may be, must yield to clear and
express provisions of the law. If in reaching its
decisions in second appeals, the High Court contravenes the express provisions of section 100, it
would inevitably introduce in such decisions an
element of disconcerting unpredictability which is
usually associated with gambling; and that is a
reproach which judicial process must constantly and
scrupulously endeavour to avoid.
In the result, the appeal is allowed, the decree
passed by the High Court is set aside and that of the
District Judge restored with costs throughout.
Appeal allowed.
1963
Madamanchi
Rumappa
v.
Muthalur Bvjjappa
r:ajendragadkar J,