AI Structured Summary
Not yet generated for this judgment
Judgment
S.P. Bharucha,; S.N. Phukan and; Shivaraj V. Patil, JJ.-This appeal is filed against the order of a learned Single Judge of the High Court of Kerala on a second appeal. It is unnecessary to go into great detail. The order under challenge must be set aside for three reasons. The first is that no substantial question of law was framed, the second is that the High Court reappreciated the evidence on the question whether the gift in suit had been accepted and the third is that the High Court decreed a suit restraining the defendants (the appellants before us) from entering into the property in suit, which the plaintiffs claimed to be in their possession on this basis:
"No doubt, a finding has been rendered that the appellants have failed to prove their physical possession as on the date of suit. But ... the possession of the appellant could be inferred.... After all, once the title is found and the plaintiffs are not given an effective decree, the consequence will only be that they will be driven to file another suit for recovery of possession."
There is no justification for the grant of, in effect, a decree for possession when it was not asked for and, on the averments of the plaint, could not have been asked for. There is also no justification for going into questions of fact in a second appeal unless it is pleaded that the order that is under appeal is perverse and a substantial question of law to that effect has been raised. Further it is not open to a High Court to entertain and decide a second appeal without being made aware of a substantial question of law involved therein and framing the same.
It has been argued before us on behalf of the respondents that only a small piece of land is involved and, therefore, we should not invoke the provisions of Article 136 of the Constitution. Our answer is that when High Courts write judgments that are so completely beyond their powers as this judgment, Article 136 must be invoked.
The appeal is allowed. The judgment and order under appeal is set aside.
No order as to costs.