Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.112 of 1996 In the matter of an appeal under Section 100 C.P.C, 1908. *** Anarasi Nageswar Patra … Appellant. -VERSUS- Sri Anarasi Laxman Patra (dead) & Others … Respondents. Counsel appeared for the parties: For the Appellants : Mr. S.S. Rao, Sr. Advocate Along with Mr. B.K. Mohanty, Adv. For the Respondent : Mr. D.P. Mohanty, Advocate P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 17.02.2025 :: Date of Judgment : 25.02.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the reversing Judgment. S.A. No.112 of 1996 Page 1 of 25 2. The appellant in this 2nd Appeal was the defendant No.2 before the Trial Court in the suit vide T.S. No.96 of 1987 and respondent No.2 before the 1st Appellate Court in the First Appeal vide T.A. No.33 of 1994. The respondent No.1 in this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.96 of 1987 and appellant before the First Appellate Court in the 1st Appeal vide T.A. No.33 of 1994. When during the pendency of the 2nd Appeal, the respondent No.1 expired, then, in his place, respondent Nos.1(a) and 1(b) have been substituted. The respondent Nos.2,3 and 4 in this 2nd Appeal were the defendant Nos.1,3 & 4 before the Trial Court in the suit vide T.S. No.96 of 1987 and respondent Nos.1,3 & 4 before the First Appellate Court in the 1st Appeal vide T.A. No.33 of 1994. 3. The suit of the plaintiff i.e. Anarasi Lakhanau Patra (respondent No.1 in this 2nd Appeal) against the appellant and respondent Nos.2,3 & 4 (defendants in the suit vide T.S. No.96 of 1987) was a suit for declaration. The case of the plaintiff (respondent No.1 in this 2nd
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Appeal) against the defendants (appellant and respondent S.A. No.112 of 1996 Page 2 of 25 Nos.2,3 and 4 in this 2nd Appeal) as per the averments made in his plaint in short was that, the plaintiff Anarasi Lakhanu Patra was a business man at Tikabali in the district of Kandhamal and he had purchased properties in different places in the district of Kandhalamal out of profits from his own business. The plaintiff had also got properties through family partition on the basis of registered partition deed dated 23.08.1954 and 26.08.1954. The defendant No.1 is the wife of plaintiff. The defendant Nos.2 to 4 are the children of plaintiff and defendant No.1. The defendant No.1 is the house wife having her no independent income and all the defendants were dependant upon the plaintiff and plaintiff was managing his wife and children (defendants). 4. During the course of business of the plaintiff at Tikabali, he (plaintiff) decided to reside at Gandhinagar, Berhampur and purchased a house site at Gandhinagar from Prafulla Kumar Tripathy on payment of consideration amount Rs.5,000/- through registered sale deed No.113 of 1979 Benami in the name of his wife i.e. defendant No.1 as the owner of the suit properties for his own benefit without any intention to give any benefit of the same to the Benamidar i.e. S.A. No.112 of 1996 Page 3 of 25 to his wife (defendant No.1) and he (plaintiff) constructed house on that purchased suit site spending Rs.1,00,000/- out of the profits from his own business and the properties as well as out of the sold money of his candle factory. At the time of above purchase to the suit house site by the plaintiff, his children i.e. defendant Nos.2,3 & 4 had no income, because, by that time, they (defendant Nos.2,3 & 4) were not engaged anywhere. After constructing the house over the suit properties, the plaintiff along with defendants resided thereon. Then, in order to avoid the payment of income tax, the plaintiff and defendants formally executed a deed of partition on dated 26.07.1983 relating to the division of the suit house between them. But, in fact, there was no division of the same, as, the said suit house exclusively belong to him (plaintiff) and he (plaintiff) is the exclusive owner of the same. Subsequent thereto, due to advice of some others, the defendant Nos.1 to 3 turned hostile to the plaintiff and falsely alleged allegations against him (plaintiff) alleging illicit relationship with a lady and by taking such false plea, the defendant Nos.1 to 3 started ill-treating plaintiff. The wife of the plaintiff i.e. defendant No.1 became a devotee of Prajapati Brahma Kumari S.A. No.112 of 1996 Page 4 of 25 and filed a suit for dissolution of marriage against him (plaintiff). The defendant Nos.1 to 3 tried to remove the plaintiff from the suit house in order to debar him from the ownership and possession of the suit house. For which, without getting any way, the plaintiff approached the Civil Court by filing the suit vide T.S. No.96 of 1987 against the defendants praying for declaring that, he (plaintiff) is the owner of the suit house and properties, but the defendants have no manner of right, title and interest therein along with other reliefs, to which, he (plaintiff) is entitled for, as the courts deems fit and proper. 5. Having been noticed from the Trial Court in the suit vide T.S. No.96 of 1987, the defendant Nos.1,3 and 4 were set ex parte but, only the defendant No.2 contested the suit of the plaintiff by filing his written statement. In the pleadings of the defendant No.2, he denied the averments made by the plaintiff in his plaint except the relationship of the defendants with the plaintiff as wife and children. It was the specific plea/case of the defendant No.2 against the plaintiff that, the plaintiff has got the properties S.A. No.112 of 1996 Page 5 of 25 only worth of Rs.2,500/- in the family partition effected between him and his brothers in the year 1954. In the year 1975, he (defendant No.2) just before completion of his B.A. degree, his mother i.e. defendant No.1 got State Aid Loan from District Industries Centre, Phulbani and established a candle factory with the help of the plaintiff. He (defendant No.2) got his job in the year 1983 in the State Bank of India. The candle factory of the defendant No.1 was sold away to one Madhuree Moharana wife of Janardan Moharana. His mother i.e. defendant No.1 hales from a very rich family and at the time of her marriage, she (defendant No.1) had brought 11 (eleven) tolas of gold ornaments, cultivable lands as well as cash of Rs.20,00/- as dowry from her father. Out of the said amount, she (defendant No.1) purchased a house site at Tikabali and then, she (defendant No.1) constructed 3 houses on the same from her income and let out that houses on rent. On 12.01.1979, the defendant No.1 sold one of the houses thereof
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at Tikabali to one Sri. B.K. Panda for Rs.10,000/- and in the same day, she (defendant No.1) purchased the suit site for Rs.5,000/- and took delivery of possession. On dated 23.03.1979, she (defendant No.1) got approval from S.A. No.112 of 1996 Page 6 of 25 Berhampur Regional Improvement Trust and subsequently from the Berhampur Municipal Authority for construction of the house on suit site. On his advice, she (defendant No.1) sold another house at Tikabali for Rs.10,000/- and constructed the house on the suit site. He (defendant No.2), out of the profits from candle factory as well as out of the sale proceeds of the candle factory, purchased one house plot in his name and another house plot in the name of her mother (defendant No.1) at Nayapalli, Bhubaneswar in the year 1978. When, plaintiff started leading immoral way of life being addicted to bad vices and kept a concubine at Dasbehera street, Berhampur, the same was objected by them (defendant Nos.1,2 and 3) but, the plaintiff assaulted them. Therefore, he (plaintiff) and defendant Nos.1 to 3 affected a partition of the suit house through metes and bounds partition on 26.02.1983 between them, which was reduced into writing and the same was registered on 26.07.1983 with full consent of all the parties. As per the said partition, he (defendant No.2) got the middle portion of the suit house. Defendant No.3 got the eastern portion and defendant No.1 got the western portion of the said house. Accordingly, they (defendant Nos.1 S.A. No.112 of 1996 Page 7 of 25 to 3) are in possession over the suit house. Subsequently, he (defendant No.2) purchased the western portion of the suit house from his mother (defendant No.1) and let out the same. As, they (defendant Nos.1 to 3) are in possession over the entire suit house through partition and the plaintiff is not in possession over the same and they (defendant Nos.1 to 3) are the owners and in possession over the same, for which, the suit of the plaintiff is not maintainable. The same is liable to be dismissed against them (defendants). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 numbers of issues were framed by the Trial Court in the suit vide T.S. No.96 of 1987 and the said issues are: ISSUES Whether the defendant No.2 purchased the western portion 1. Whether the plaintiff purchased the suit schedule property under Ext.2 and constructed the suit house thereon in the name of defendant No.1 in Benami? 2. of the suit schedule house? 3. over the suit schedule property? 4. genuine and binding on the parties? 5. 6. Whether the suit is maintainable? To what relief? Whether the plaintiff has not any right, title and possession Whether the partition deed dated 26.07.1983 is valid, S.A. No.112 of 1996 Page 8 of 25 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants, the plaintiff examined altogether six numbers of witnesses from his side including him and the vendor of the suit house i.e. Prafulla Kumar Tripathy as P.Ws.1 and 2 respectively and relied upon the documents vide Exts.1 to 41. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant No.2 examined three witnesses on his behalf as D.Ws.1 to 3 and relied upon the documents vide Ext.A to S. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the defendant No.2 and against the plaintiff and basing upon the findings and observations made by the Trial Court in all the issues against the plaintiff and in favour of the defendant No.2, the trial Court dismissed the suit of the plaintiff on contest against the defendant No.2 and ex parte against the defendant Nos.1,3 and 4 as per its Judgment and Decree dated 21.02.1994 and 08.03.1994 respectively assigning the reasons that, the defendant No.1 (wife of the plaintiff) has purchased S.A. No.112 of 1996 Page 9 of 25 the suit site through registered sale deed No.113/1979 (Ext.B) from Prafulla Kumar Tripathy on payment of consideration amount by her (defendant No.1) out of her own income, but not as Benamidar of her plaintiff-husband, as there is an endorsement in the sale deed by the Sub Registrar regarding the payment of consideration amount by the defendant No.1 to the vendor Prafulla Kumar Tripathy at the time of registration of the sale deed and she (defendant No.1) has constructed house on the suit site out of her own income and the said house on the suit site has already been partitioned between her (defendant No.1) and defendant Nos.2 & 3 as per Registered deed of partition dated 26.07.1983 (Ext.25) in which, the plaintiff has no interest and possession. For which, the plaintiff is not entitled for the relief i.e. declaration against the defendants. 9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff passed by the Trial Court, he (plaintiff) challenged the same by preferring the 1st Appeal being the appellant vide T.A. No.33 of 1994 against the defendants arraying them (defendants) as respondents. S.A. No.112 of 1996 Page 10 of 25 After hearing from both the sides, the First Appellate Court allowed that 1st Appeal of the plaintiff on contest against the defendants as per its Judgment and Decree dated 12.04.1996 and 22.04.1996 respectively and set aside the Judgment and Decree of the Trial Court and declared the right and title of the plaintiff over the suit site and the house thereon after appreciating the pleadings as well as oral and documentary evidence of the parties assigning the reasons that, at the time of purchasing the house site on dated 12.01.1979 through sale deed No.113/1979 (Ext.B) by the plaintiff, none of his children i.e. defendant Nos.2 to 4 were employed anywhere and they (defendant Nos.2 to 4) had no income, but, they, (defndnat Nos.2 to 4) were dependent upon him (plaintiff) and he (plaintiff) was maintaining his children (defendant Nos.2 to 4) along with his wife (defendant No.1), because, defendant No.1 was a housewife having her no independent income from any source. As such, the relationship between plaintiff and the defendant No.1 was fiduciary relationship at the time of purchasing the suit site through RSD dated 12.01.1979 (Ext.B) from Prafulla Kumar Tripathy Benami in the name of the defendant No.1 for the S.A. No.112 of 1996 Page 11 of 25 own benefit and interest of the plaintiff without any intention for providing any benefit thereof to the defendant No.1. He (plaintiff) had paid the entire consideration amount (purchase money) to the vendor Prafulla Kumar Tripathy (P.W.2) of the suit site and the P.W.2 has admitted to the same concerning the payment of consideration amount by the plaintiff to him (P.W.2), but not by the defendant No.1 in his evidence. The Sub-Registrar’s endorsement in the sale deed concerning payment of consideration amount by the defendant No.1 cannot be a ground to reject the unassailed testimonies of P.Ws.1 and 2 that, the plaintiff paid the consideration amount to the vendor (P.W.2) and the defendant No.1 was the Benamidar of the suit site and she (defendant No.2) is not the real owner of the suit site and house thereon. As such, the plaintiff is the real owner of the suit site being the real purchaser thereof. The deed of partition vide Ext.25 was executed only for avoiding the payment of income tax, but not in the sake of division of the suit house, as the plaintiff is the exclusive owner of the suit site and the house thereon, for which, the Judgment and Decree passed by the Trial Court is S.A. No.112 of 1996 Page 12 of 25 set aside and the plaintiff is declared as the owner of the suit site and house thereon. 10. On being aggrieved with the aforesaid Judgment and Decree dated 12.04.1996 and 22.04.1996 respectively passed by the 1st Appellate Court in T.A. No.33 of 1994 in favour of the plaintiff and against the defendants including the contesting defendant No.2, the contesting defendant No.2 (eldest son of the plaintiff) challenged the same by preferring this 2nd Appeal being the appellant arraying the plaintiff as respondent No.1 and also arraying the defendant No.1,3 and 4 as proforma respondent Nos.2 to 4 respectively. When during the pendency of the 2nd Appeal, the respondent No.1 (plaintiff) expired, then in his place, respondent Nos.1(a) and 1(b) have been substituted. 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. findings Whether is a benami I. and the observations made by the 1st Appellate Court that, the transaction in respect of the suit properties is sustainable when, it is claimed on behalf of the defendants that, the suit properties was purchased in the names of the defendant No.1 and there was a deed of partition in respect of the same as per Ext.25? transaction S.A. No.112 of 1996 Page 13 of 25 the sale deed When II. dated 12.01.1979 claimed as benami transaction has not been set aside through the process of Court and when there is no prayer on behalf of the plaintiff for setting aside the partition deed vide Ext.25, then, whether the Judgment and Decree passed by the First Appellate Court in decreeing the suit of the plaintiff after setting aside the Judgment and Decree of the Trial Court is sustainable under law? 12. I have already heard from the learned counsels for the appellant (defendant No.2) and the learned counsel for the respondent No.1 (plaintiff). As, both the aforesaid substantial questions of law are interlinked having ample nexus with each other as per the pleadings, oral and documentary evidence of the parties as well as the findings and observations made by the Trial Court and First Appellate Court in their respective Judgments and Decrees, then, both the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder. 13. It is the case of the plaintiff (husband of the defendant No.1) that, the suit site was purchased by him (plaintiff) on dated 12.01.1979 as per Registered Sale Deed No.113/1979 (Ext.B) from Mr. Prafulla Kumar Tripathy (P.W.2) from his own S.A. No.112 of 1996 Page 14 of 25 money in the name of his wife (defendant No.1) Benami without any intention to give any benefit from the same to his wife (defendant No.1) and he (plaintiff) is the real owner of the suit site and house thereon, but, the defendant No.1 is not the owner of the same. The name of defendant No.1 was indicated as a vendee in the sale deed dated 12.01.1979 vide Ext.B as a name lender, but not as the real owner of the same and the defendant No.1 is the Benamidar of the suit properties, whereas, he (plaintiff) is the real purchaser as well as owner of the same. 14. The further claim of the plaintiff that, the defendant No.1 had/has no source of income, but she (defendant No.1) was depending upon him (plaintiff), to which, the defendant No.2 denied/disputed in his written statement stating that, the defendant No.1 had sufficient independent income and the said suit site was purchased from Prafulla Kumar Tripathy by her mother (defendant No.1) from her own income through sale deed No.113/1979 (Ext.B) paying the consideration amount to its vendor Prafulla Kumar Tripathy, for which, the plaintiff cannot be declared as the real owner of the suit S.A. No.112 of 1996 Page 15 of 25 properties. Because, the defendant No.1 is not the Benamidar, but (defendant No.1) is the real owner of the same. 15. After taking into account the pleadings and evidence of the parties, the trial court accepted to the pleas of the defendant No.2 discarding the claim of the plaintiff on the ground that, when Sub-Registrar has made endorsement in the sale deed about the payment of consideration amount to the vendor and the sale deed vide Ext.B shows the name of defendant No.1 as the purchaser of the same and when as per Ext.25, the said suit site and the houses thereon has already been partitioned between the defendant Nos.1 to 3 through registered partition deed vide Ext.25, then, under such circumstances, it cannot be held that, the defendant No.1 was the Benamidar and the plaintiff is the real owner of the suit site and house thereon. For which, the Trial Court dismissed the suit of the plaintiff. To which, the 1st Appellate Court reversed as per its Judgment and Decree appreciating the pleadings of the parties as well as their oral and documentary evidence assigning the reasons that, the unassailed testimonies of the P.Ws.1 and 2 i.e. plaintiff and vendor of the sale deed S.A. No.112 of 1996 Page 16 of 25 No.113/1979 (Ext.B) i.e. Prafulla Kumar Tripathy is going to show that, in fact, consideration amount of the sale deed vide Ext.B was paid by the plaintiff to him (vendor), but not by the defendant No.1 and the Sub-Registrar’s endorsement in the sale deed vide Ext.B regarding payment of consideration amount cannot be a ground for rejection of the unassailed testimonies of P.Ws.1 and 2 that, the defendant No.1 paid the consideration amount to the vendor Prafulla Kumar Tripathy (P.W.2) and also further held that, the defendant No.1 had no independent income of her own and she was dependant upon the plaintiff and the defendant No.2 was an unemployed boy at the time of purchasing the suit site by the plaintiff from P.K. Tripathy and he (defendant No.2) had no income at that time and also further held that, the wife of the plaintiff i.e. defendant No.1 is an ostensible owner of the suit site, but the plaintiff is the real owner of the same and the suit site was purchased by the plaintiff through registered sale deed dated 12.01.1979 (Ext.B) Benami in the name of defendant No.1 from its vendor Prafulla Kumar Tripathy. So, the plaintiff is the real owner of the suit site and the house thereon. For which, the deed of partition vide Ext.25 between the S.A. No.112 of 1996 Page 17 of 25 defendants in respect of the suit site is non-est in the eye of law. Because, the same was prepared only for the purpose of avoiding the income tax, as, the suit property is the property of the plaintiff, which cannot be partitioned by the defendants. So, the first appellate court in its Judgment and Decree declared the right and title of the plaintiff over the suit site and the house thereon and set aside the Judgment and Decree of the Trial Court. 16. When the plaintiff has claimed him as the real owner of the suit site and the house thereon, even though, the sale deed vide Ext.B shows the name of the defendant No.1 as vendee stating that the defendant No.1 as Benamidar, then, at this juncture, before delving into this matter for discussion, I thought it proper, to place it on record about the kinds of benami transactions in India and the required nature of its proof. There are two kinds of Benami transactions are recognized in India i.e. (I) where a person buys property with his own money, but, in the name of another person without any intention to benefit such other person, that S.A. No.112 of 1996 Page 18 of 25 transaction is called as Benami and in that case, the transferee (whose name is indicated in the sale deed as a purchaser) holds the property for the benefit of person, who has contributed purchased money and the said person who has contributed the purchase money is the real owner of the purchased property even though, his name has not been indicated in the sale deed as vendee (purchaser). (II) in a case, where a person, who is owner of the property executes conveyance in favour of another without intention of transferring title to property thereunder and the transferor continues to be the real owner, in that case, even though, there is a deed regarding transfer of property, still then, the named transferor in the sale deed continues as the real owner of the property indicted in that sale deed. Though it is the presumption in law that, whose name is reflected in the sale deed as vendee is the owner of the property involved in the deed, but such presumption in law can be displaced through pleadings as well as successfully proving that, whose name appears in the sale deed as vendee S.A. No.112 of 1996 Page 19 of 25 is not the real owner, but only Benami and he or she is mere name lender. 17. The suit vide T.S.No. 96 of 1987 was filed by the plaintiff praying for declaration of his right, title and interest over the suit properties and house thereon on the ground of purchasing the suit site benami in the name of his wife (defendant No.1). The Benami transactions (Prohibition) Act, 1988 came into force in the year 1988. The Provisions of the said Benami transactions (Prohibition) Act, 1988 are prospective in nature, but, the same have no retrospective applications. For which, the provisions of the Benami transactions (Prohibition) Act, 1988 has no application to the suit/appeal at hand, as, the suit of the plaintiff was filed on 31.10.1987 taking the plea of Benami, which is much prior to the coming into force of the Benami transactions (Prohibition) Act, 1988. The trial court held that, the transaction through sale deed dated 12.01.1979 (Ext.B) is not a Benami Transaction on the ground of endorsement in the sale deed (Ext.B) by the Sub-Registrar about the payment of consideration amount to the vendor Prafulla Kumar Tripathy (P.W.2) by the defendant S.A. No.112 of 1996 Page 20 of 25 No.1, to which, the First Appellate Court reversed assigning the reasons that, the endorsement made by the Sub-Registrar in the deed relating to the payment of consideration amount cannot be held as per law that, in fact, such consideration amount was paid by the so-called named vendee of the sale deed i.e. defendant No.1, when the vendor thereof i.e. Prafulla Kumar Tripathy (P.W.2) has deposed through his unassailed testimonies that, the said consideration amount was in fact paid by the plaintiff (P.W.1) to him and the said evidence of P.W.2 has been fully corroborated by the plaintiff (P.W.1). On this aspect the propositions of law has already been clarified by the Apex Court in the ratio of the following decision. I. In a case between Benga Behera & Another Vs. Braja Kishore Nanda & Others reported in 104 (2007) CLT 552 (SC) (Para No.34), The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 of the Registration Act, 1908 prescribes the particulars to be endorsed on documents admitted to registration, such as: (a) Signature of the person admitting the execution of the document; (b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else. S.A. No.112 of 1996 Page 21 of 25 18. When, the well corroborated unassailed/unshaken testimonies of the vendor of the sale deed vide Ext.B i.e.P.W.2 and the plaintiff (P.W1) are in support of the findings of the 1st appellate Court corroborating the pleadings of the plaintiff that, in fact, the consideration amount of the sale deed vide Ext.B for purchasing the suit site was paid by the plaintiff, but not by the defendant No.1, then, at this juncture, the findings and observations made by the 1st Appellate Court cannot be held as erroneous in view of the ratio of the aforesaid decision of the Apex Court. 19. This Court is the 2nd Appellate Court. The scope, powers and jurisdiction of a 2nd Appellate Court under Section 100 of the CPC, 1908 are not akin to the powers of the 1st Appellate Court under Section 96 & 107 of the CPC, 1908. It is the settled propositions of law that, first appeal is always treated as continuation of the suit. Virtually, first appeal is a re-hearing of the civil suit and during 1st Appeal, whole case is open for reconsideration. So, the first appeal, is the continuation of the suit. S.A. No.112 of 1996 Page 22 of 25 The scope, power and jurisdiction of the 2nd Appellate Court like this court has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions: I. In a case between Government of Kerala & Another & Another Vs. Joseph & Others reported in 2023 (3) CCC 201 (SC), as per Section 100, CPC jurisdiction of the 2nd Appellate Court is not akin to the jurisdiction conferred under Section 96 of CPC, before the 1st Appellate Court, wherein it is open for Court to consider both questions of fact and law. II. In a case between Umar Khan (deceased) Vs. Sumer Khan (Now deceased) reported in 2023 (3) CCC 87 (Raj.), First Appeal is always treated as continuation of civil suit. Virtually, first appeal is a re-hearing of civil suit and whole case is open for reconsideration. At the stage of first appeal, being in continuation of suit, subsequent events occurred during course of first appeal may also be not left out of consideration. III. In a case between Manjula & Others Vs. Shyamsundar & Others reported in 2021 (3) CCC 212 (SC), 1st Appellate Court has jurisdiction to reverse or affirm findings of trial court. 1st Appeal is continuation of original proceedings. Appellate Court’s jurisdiction involves rehearing of appeal on questions of law as well as fact. First appeal is a valuable right, and, at that stage, all questions of fact and law decided by Trial Court are open for re-consideration. IV. In a case between Gurnam Singh (dead) by LR & Others Vs. Lehna Singh (dead) by LRs reported in (2019) 7 SCC 641, in second appeal High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) the mandatory provisions of to Contrary applicable law; or the S.A. No.112 of 1996 Page 23 of 25 (ii) Contrary to the law as pronounced by the Apex Court; or V. (iii) Based on inadmissible evidence or no evidence. In a case between D. Selvaraj Vs. Palaniswami & Another reported in AIR 2019 Mad. 3, in 2nd Appeal, High Court has no jurisdiction to interfere with the finding of fact given by the first appellate court based upon appreciation of relevant evidence. VI. In a case between Mahaveer & Others Vs. Omprakash reported in 2023 (3) Civ.C.C. 653 Rajasthan, The finding of fact recorded by the 1st Appellate Court after appreciation of evidence not to be interfered with in the 2nd Appeal. 20. Here in this suit/appeal at hand, when the first appellate court after appreciating the oral and documentary evidence of the parties and taking into account all the materials on record has reversed (set aside) the Judgment and Decree of the Trial Court and when as per the discussions and observations made above, it is held that, the findings and observations made by the 1st Appellate Court are not unreasonable, then, at this juncture, the question of interfering with the same through this 2nd Appeal filed by the appellant (defendant No.2) does not arise. 21. Therefore, there is no merit in the 2nd Appeal filed by the appellant (defendant No.2). The same must fail. S.A. No.112 of 1996 Page 24 of 25 22. In the result, the 2nd Appeal filed by the appellant (defendant No.2) is dismissed on contest, but without cost. 23. The Judgment and Decree passed by the 1st Appellate Court setting aside the Judgment and Decree of the Trial Court and decreeing the suit of the plaintiff vide T.S. No.96 of 1987 is confirmed. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 25 .02. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 25-Feb-2025 19:23:34 S.A. No.112 of 1996 Page 25 of 25