Dr. AR. Lakshmanan, J.— These two appeals were filed against the final judgment/order dated 6-3-1997 passed by the High Court of Kerala in CMAs Nos. 208 of 1994 and 43 of 1995 restoring the common judgment and decree of the trial court having set aside the remand order of the lower appellate court. The short facts are:
The property in dispute in this appeal belonged to one Kunjan who executed a deed of settlement settling his properties including the disputed property on his daughters. One of the daughters Sumathi was minor to whom the C Schedule to Ext. B-1 was allotted. The owner kept the D Schedule items which is the disputed property to himself.
2. The 1st respondent Kumaran is a close relative of Kunjan and was very close to the family and treated as a member of Kunjan's family till the dispute arose in 1986. The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext. B-1. In 1976 Kunjan executed Ext. A-1 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. B-1 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. A-1. 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. B-1 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 (sic) while the 1st respondent Kumaran was also closely moving with the family and there was no action from Kunjan.
3. Kunjan accordingly sold the 50 cents covered by the D Schedule to Ext. B-1 as also the accredition to the appellant by the deed of sale, Ext. B-4 on 5-3-1986. The 1st respondent was displeased at the development and he filed a suit OS No. 125 of 1986 for a permanent injunction restraining them from entering into the disputed property. Kunjan became aware of the mistake in the schedule, Ext. A-1 only when notice of this suit was received whereupon himself and the appellant filed a suit OS No. 146 of 1986 for injunction against the interference with his possession of the 50 cents of disputed property. The plaintiff pleaded that the transfer to the 1st respondent was only 1.51 acres and that the disputed property was not comprised or intended to be transferred or to be in possession of the vendee. They pleaded that fraud was played by Pankajakshy and her husband in the incorrect preparation of the schedule to the document.
4. This recital was very clear that only the property allotted to Sumathi, C Schedule to Ext. B-1 was transferred. The trial court by its judgment dated 31-7-1990 held that the entirety of the C and D Schedules to Ext. B-1 has been transferred. It also held that the suit filed by the appellant and Kunjan in OS No. 146 of 1986 was barred by limitation. The trial court also did not project the plea of fraud set up by Kunjan and the appellant. Accordingly, OS No. 125 of 1986 was decreed and OS No. 146 of 1986 was dismissed.
5. Pending suit Kunjan died. The appellant was the other person interested, therefore, filed an appeal and the other parties in the suit filed appeals which were disposed of by a common judgment dated 24-6-1994.
6. The District Court went into the evidence very elaborately and came to the conclusion on appreciation of the evidence that what was intended to be transferred was only the 1.5 acres comprised in C Schedule to Ext. B-1 and that the D Schedule property was not conveyed under Ext. B-1. Accordingly, he held that the 1st respondent did not have title of the possession either over the schedule or the accredition of 56 cents which lies in between the C and D Schedule properties. He also held that the misdescription in Ext. A-1 sale deed was apparently due to the deceptive practice of the respondent and PW 4 was also a party. The District Court on the basis of the materials placed before it found that PW 4 was a person who habitually indulges in such malpractices. The District Court further held that the 1st respondent did not go into the possession of the D Schedule and the accredition and that Kunjan became aware of the mistake only when notice of OS No. 125 of 1986 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.
7. The 1st respondent challenged this order in civil miscellaneous 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.
8. 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 Munsif Court.
9. Being aggrieved, the appellant preferred the special leave petitions/appeals.
10. We heard Mr T.L.V Iyer, Senior Advocate for the appellant and Mr P. Krishnamoorthy, Senior Advocate for the respondent. Mr Iyer raised the following contentions:
1. The High Court has gone into excruciating details of facts and has appreciated evidence which is not warranted under Section 100 CPC and is beyond its jurisdiction. No question of law much less any substantial question of law arose in the High Court.
2. The High Court has not formulated any question of law for decision nor has it identified any such question of law anywhere in the judgment. The interference with the judgment of the District Judge is purely on question of facts.
3. The findings by the High Court are based on appreciation of evidence and are conclusions of facts. No substantial question of law arises therefrom. The High Court has grossly erred in verifying the facts.
4. The appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated under Section 100. The appellant under Order 43 Rule 1 clause (u) is not entitled to agitate question of facts as in a first appeal.
11. Mr P. Krishnamoorthy, learned counsel for the respondents submitted that the order passed by the High Court in the appeals does not call for any interference. He argued that Section 100 is confined to second appeals against decrees and, therefore, cannot be invoked in appeal against an order.
12. We have been taken through the pleadings and the judgments rendered by all the three courts. Our attention was also drawn to the records/documents.
13. The following questions of law arise for consideration by this Court:
1. Whether the High Court was justified in going into excruciating details on facts in a second appeal?
2. Has not the High Court exceeded its jurisdiction under Section 100 CPC by reversing a well-considered judgment of the first appellate court on facts especially when no question of law much less any substantial question of law arose for consideration?
14. The submissions made by Mr T.L.V Iyer are well founded and merit acceptance. A close scrutiny of the order passed by the High Court clearly goes to show that the High Court has gone into minute details of facts and has appreciated evidence which is not warranted under Section 100 CPC and is beyond its jurisdiction. No question of law much less any substantial question of law arose in the High Court. The jurisdiction of the High Court is now confined to entertain only such appeal as involving 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 CPC and has committed a patent error in disposing of the civil miscellaneous 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 CPC.
15. 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) CPC. It was contended by Mr Iyer that though it is filed as civil miscellaneous 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 miscellaneous 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.
16. Mr Krishnamoorthy, learned Senior Counsel for the respondent cited no contrary law. He, however, reiterated that Section 100 is confined to second appeals against decrees and, therefore, cannot be invoked in an appeal against an order. It is, of course, true that Section 100 in terms applies only to appeals second to decrees, but the contention of Mr Krishnamoorthy cannot be accepted on account of language of Order 43 Rule 1 clause (u). It reads as follows:
“43. (1) Appeals from orders.—An appeal shall lie from the following orders under the provisions of Section 104, namely—
(a)-(t)***
(u) an order under Rule 23 or Rule 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court.”
17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr T.L.V Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court.
18. The High Court of Rajasthan in Abdul Gani v. Devi Lal AIR 1960 Raj 77 held that the appeal under this clause should be heard only on the grounds enumerated in Section 100 and not on question of facts as in the case of first appeal.
19. In Seshammal v. Kuppanaiyyangar AIR 1926 Mad 475 this Court held as under: (AIR p. 476)
“Although the civil appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal.”
20. In Ambukutti Vaidier v. Kannoth Koottambath Kelan AIR 1933 Mad 460 the case of Secy. of State v. Tripurna Sundarammal AIR 1926 Mad 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.
21. In Kaluvaroya Pillai v. Ganesa Pandithan AIR 1969 Mad 248, (1969) 2 MLJ 431 the Court held as under: (AIR p. 249, para 4)
“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 under Order 43 Rule 1(u) CPC. I shall presently advert to the right of an appellant in a civil miscellaneous appeal to canvass the correctness of the findings other than those relating to the order of remand in such an appeal. But insofar as this appeal is concerned, as there has been a substitution of the judgment and decree of the appellate court to that of the trial court, the only remedy available to the appellants in this case was to file a second appeal, if they were so advised, and not to file an appeal under Order 43 Rule 1(u) CPC. Thus in the peculiar circumstances and on the facts of this case, it is not open to the appellants to canvass the other findings of the lower appellate court.”
22. It is also useful to reproduce Order 41 Rule 23 CPC which reads thus:
“23. 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 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, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.”
23. The High Court of Kerala has adopted an amendment made by the Madras High Court which reads thus:
“(a) after the words ‘the decree is reversed in appeal’, insert the words ‘or where the appellate court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case’, and
(b) delete the words ‘if it thinks fit’, occurring after the words ‘the appellate court may’.”
24. Under the rule as amended in Kerala, Madras by the addition of the words “or where the appellate court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case” after the words “the decree is reversed in appeal”, the court can remand the case even when the suit has not been disposed of on a preliminary point. The Court has held that this power ought not to be lightly exercised by the appellate court.
25. Learned counsel appearing on either side took us through the whole of the judgment/evidence and to elaborate statements on question of facts. As rightly pointed out by Mr Iyer, the 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 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. B-1 allotted to Sumathi which was sold. If really the D Schedule retained by Kunjan was also under transfer, the same should have found 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.
26. 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 when there is inconsistency in the body of the document, containing the evidence clause and the schedule, the former prevails over the latter. As such when the intention of the parties was clear, the schedule to the document should not have been allowed to override the recital clause.
27. Likewise, the D Schedule was not intended to be conveyed is evident from the fact that there is no mention of the accredition much less between the C and D Schedules to Ext. B-1. If really the entire property as bulk was being conveyed certainly the existence of the accredition or an intention to transfer the same would also have found their place in the document. The respondent has no case that he has any title to or possession of the said accredition. This very fact, in our view, cuts the root of the case of the 1st respondent to title to the disputed property.
28. The D Schedule to Ext. B-1 could not have been common is very clear from the entire fact. The agreement was that the property gifted to Sumathi would be sold and the proceeds would be given to Pankajakshy in view of which Pankajakshy consented to transfer her share in favour of Sumathi. Accordingly, it was only the share of Sumathi which was C Schedule to Ext. B-1 which was sold and consideration thereunder was Rs. 9000. No consideration for Kumaran's transfer was admitted to and on the other hand the consideration of Ext. A-1 was received by Pankajakshy and her husband. There is no case for the 1st respondent that D Schedule to Ext. B-1 was also intended to be transferred as part of the scheme of package.
29. Kunjan was in possession of the disputed property. He became aware of it only when notice of OS No. 125 of 1986 was received by him. As noted by the District Court with reference to the evidence in the case, the 1st respondent Kumaran was moving very closely with Kunjan and his family and was one of the beneficiaries of Kunjan's munificence. It is only in 1986 when Kunjan sold the disputed property to the appellant that he instituted the suit claiming title. The finding of possession of the 1st respondent is based on the document acquired after the commencement of the suit. There is no iota of evidence for the prior period, even otherwise any act on the part of the 1st respondent is only referable to the close association with Kunjan and his family and his looking after property of Kunjan. Thus, the case of fraud put forward by the appellant is amply proved by the facts and circumstances of the case and as thoroughly discussed by the District Court and the findings of fact arrived at. We are, therefore, of the opinion that the High Court was not justified in going into the excruciating details of facts in the second appeal and that the High Court has exceeded its jurisdiction by reversing a well-considered judgment of the first appellate court which is the final court of facts especially when no questions of law much less a substantial question of law arose for consideration.
30. It is seen from the judgment of the lower appellate court that the matter was remanded back to the court below for limited purpose on a proper identification of the disputed suit property. It is seen from para 3 of the common judgment in CMAs Nos. 208 of 1994 and 43 of 1995 that counsel appearing for both sides have conceded that the lower appellate court was not correct in remanding the matter to the trial court. According to them there was no dispute regarding the identity and that the identity is clear from the rough sketch appended to the judgment of the lower appellate court. They submitted that there was no necessity of remanding the matter to the lower appellate court and the matter can be decided on merits by the High Court.
31. We are of the opinion that the judgment passed by the High Court in CMAs Nos. 208 of 1994 and 43 of 1995 cannot be sustained for the reasons stated supra. We, therefore, set aside the judgment passed by the High Court and restore the judgment passed by the District Judge, Thodupuzha in Appeals Nos. 125 and 146 of 1986 on his file. However, we delete the directions given by the District Court in regard to the order of remand and retain and sustain the judgment of the District Court dated 24-6-1994 in toto. In the result, the appeals filed by the appellant succeeds and we order no costs.