1. Plaintiff is the appeal is the appellant. The suit was for redemption of an usufructuary mortgage dated 29-8-1959 executed by one Kaliaperumal Padayachi in favour of the first defendant, on the allegation that the first defendant has been in enjoyment of the suit property as usufructuary mortgagee and that on 14-7-1960 the plaintiff entered into an oral agreement with Kaliaperumal Padayachi for purchase of the suit property for Rs. 2750. In accordance with the said agreement, Kaliaperumal Padayachi received Rs. 700 from the plaintiff in discharge of the bogiam deed executed by Kaliaperumal Padayachi's daughter Chinapillai, (4th defendant) in favour of one Pakkirisami Padayachi and for the discharge of a pronote debt due by Chinnapillai to the same Pakkirisami Padayachi. It was the further case of the plaintiff that Kaliaperumal Padayachi received on several occasions for his needs amount to the tune of Rs. 150. Later on, on 11-8-1960 Kaliaperumal executed the sale deed in favour of the plaintiff for Rs. 2,750, under which he directed the suit bogiam debt to be discharged by the plaintiff. In spite of repeated demands, the first defendant did not receive the bogiam amount and give discharge to the document. Hence, the plaintiff sent Rs. 600 by money order to the first defendant and informed the same also by notice dated 7-5-1964. The first defendant evaded receipt of the same. Hence, the money order as well as the notice was returned to the sender. Since under the bogium deed the principal has to be paid after a period of three years in Chitrai Kalavathi, the plaintiff tendered the amount by money order on 7-5-1964. Kaliaperumal Padayachi died pending suit. Defendants 2 to 5 were impleaded as parties to the suit as the first defendant contended that the suit as framed was bad without impleading Kaliaperumal Padayachi. On these pleadings, the plaintiff prayed for the above reliefs.
2. It was the case of the first defendant that he obtained the sale of the suit property from Kaliaperumal on 24-9-1960 for Rs. 2,500 and by that the suit usufructuary mortgage was discharged. According to the first defendant, the sale in favour of the plaintiff was false and was learnt to be a forgery. It was contended that the plaintiff after coming to know the presentation of the sale deed by the first defendant for compulsory registration, created the sale deed on old stamp papers as if it had come into being on 11-8-1960. The agreement alleged to have been made on 14-7-1960 by Kaliaperumal with the plaintiff was also denied. The first defendant also denied the recitals of consideration made in the plaintiff's sale deed as false. After sending three notices for compulsory registration proceedings, the Sub-Registrar refused registration on 19-12-1960. as the executant was not present. Thereupon the first defendant filed appeal in A. P. 28 of 1960 before the District Registrar, Chidambaram and as per order dated 2-3-1961, the sale deed was registered on 10-3-1961. With these contentions, the first defendant prayed for the dismissal of the suit.
3. All the other defendants supported the claim of the first defendant. The trial Court, by judgment dated 27-12-1967, decreed the suit against the first defendant for redemption with costs with a direction that the plaintiff will be entitled to mesne profits from the first defendant from the date of his notice of the deposit of the mortgage amount into court till delivery of possession of the suit property.
4. Aggrieved by the judgment and decree of the trial court. the first defendant preferred an appeal to the Sub-Court, Chidambaram. The Sub-Court reversed the judgment and decree of the trial court and dismissed the suit. Aggrieved by the judgment and decree of the lower appellate court. the plaintiff has preferred the above second appeal.
5. Sri Parasaran, the learned Advocate-General appearing for the appellant, took me through the judgment of the lower appellate court and stated that the lower appellate court has lightly interfered with the judgment and decree of the trial court and as such the decision of the lower appellate court has to be set aside. According to the Advocate-General, there was absolutely no material or point made out for the lower appellate court to disagree with the considered judgment of the trial court. If that be so, the High Court has ample power to interfere in second appeal and restore the judgment and decree of the trial court. The learned Advocate-General further submitted that the lower appellate court has wrongly cast the burden upon the plaintiff and as such there is error of law committed by the lower appellate court which requires interference by this court. It has also been argued that the lower appellate court has not discussed the evidence adduced by the first defendant in the case and as such the judgment and decree of the lower appellate court are vitiated, the procedure adopted by it being erroneous in law.
6. Sri Habibullah Badsha, the learn-counsel appearing for the first defendant submitted that the burden of proof has been rightly cast upon the plaintiff to prove the genuineness of Ex. A-1, sale deed in his favour, and that the lower appellate court, after elaborately discussing the evidence on record, has correctly come to the conclusion that the sale deed Ex. A-1, could not have come into existence prior to Ex. B-2.
7. The facts in this case are simple. Ex. A-1 is the registered sale deed executed by Kaliaperumal Padayachi in favour of the plaintiff. Ex. A-1 is dated 11-8-1960. Ex. B-2 is a registered sale deed executed by Kaliaperumal Padayachi in favour of the 1st defendant and the same is dated 24-9-1060. But these sale deeds are in respect of the very same property that belonged to Kaliaperumal Padayachi. Ex. A-1 was registered on 21-11-1960, though the execution was on 11-8-1960. Ex. B-2 was presented for compulsory registration on 16-11-1960, but the Sub-Registrar refused to register the same since Kaliaperumal Padayachi was not present. Subsequently it was registered only on 10-3-1961. It is the case of the 1st defendant that subsequent to his presenting Ex. B-2 for compulsory registration on 16-11-1960, the plaintiff brought about Ex. A-1, on old stamp papers as if it was written on 11-8-1960 and got it registered on 21-11-1960. Thus, according to the first defendant Ex. A-1 could not have come into existence prior to Ex. B-2. Hence the main question that was agitated upon before the courts below was as to whether Ex. A-1 which was dated 11-8-1960 and registered on 21-11-1961, was actually executed on 11-8-1960 or not.
8. The lower appellate court has stated that in view of the nature of the pleadings of the case of the parties. It is no doubt true that the plaintiff who has come to court must establish the Ex. A-1was executed by Kaliaperumal Padayachi on 11-8-1960. This wrong casting of burden on the plaintiff according to the learned Advocate-General has vitiated the whole judgment of the lower appellate court and as such the judgment and decree of the trial court have to be restored. According to the learned Advocate-General the registration of a document prima facie proves the genuineness of the same. Hence the burden is upon the first defendant to prove that the sale under Ex. A-1 was not genuine and that Ex. A-1 was not executed on the date which it bears.
9. To substantiate his contention, the learned Advocate-General first cited Sarju Prasad v. Jwaleswari Pratap Narain Singh, : 1SCR781 for the proposition that the first appellate court cannot lightly interfere with the finding of fact arrived at by the trial court and if such interference has been made it is for the High Court to correct the same in second appeal. The principle laid down in the above decision is as follows-
'When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special features about the evidence of a particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. It would not detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.'
10. After citing the above decision, the learned Advocate-General accepted the proposition that no second appeal will lie except on the ground specified in S. 100, C.P.C. and that the second appellate court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. The said proposition has been succinctly stated, as rightly contended by Sri Habibullah Badsha, the learned counsel appearing for the first appellant, in Radha Prasad v. Gajadhar Singh, : 1SCR663 and Ramachandra v. Ramalinga : 3SCR604 and Chunilal Vithaldas v. Mohanlal, AIR 1967 SC 226. But in Ramachandra Iyer v. Ramalinga Chettiar, : 3SCR604 , the Supreme Court has observed:--
'It is necessary to remember that S. 100(1)(c) refers to a substantial error or defect in the procedure. The defect or error must be substantial that is one fact to remember; and the substantial error or defect should be such as may possibly have produced error or defect in the decision of the case upon the merits--that is another fact to be borne in mind. The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact. the lower appellate court had placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate court fails to consider an issue which had been tried and found upon by the trial court and proceeds to reverse the trial court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure.'
10-A. In the same judgment, the Supreme Court has further observed-
'But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court however erroneous the said conclusions may appear to be to the High Court, because, as the Privy Counsel observed, however gross or inexcusable the error may seem to be there is no jurisdiction under S. 100 to correct that error.'
11. According to the learned Advocate General, the lower appellate Court has definitely case on the plaintiff the burden of proving that Ex. A-1 was executed by Kaliaperumal on 11-8-1960 while the document, Ex. A-1, as it stands is a prima facie proof of its execution as on the date it bears. It is for the person who wants to refute a registered sale to prove that the document was not executed on the date it bears. This approach of the lower appellate court, according to the learned Advocate-General, amounts to a defect or error in procedure and as such the decision rendered by the lower appellate court is vitiated. it was also submitted by the learned Advocate-General that the lower appellate court having doubted the execution of Exs. B-5 and B-6, is wrong in coming to the conclusion that Ex. A-1 was written subsequent to the execution of Ex. B-2.
12. According to the learned Advocate-General, it is also clear from the judgment of the lower appellate court. that there is no proper discussion of the evidence let in by the first defendant and the same was due to the fact that it has committed an error in casting the burden of proof upon the plaintiff.
13. I am of the view, that Ex. A-1, which is registered document, proves that the same has been executed on 11-8-1960. It is for the first defendant to rebut this prima facie proof established by the plaintiff. It was, thus, necessary for the lower appellate court, to discuss the evidence on record casting the burden upon the first defendant to rebut the proof of the execution of Ex. A-1 on the date it bears. Following the decision in Ramachandra Iyer v. Ramalinga Chettiar, : 3SCR604 , I am of the view that there is a substantial error in the procedure adopted by the lower appellate court in giving its decision with regard to the dispute between the parties. It is but fair that the matter is remanded to the file of the lower appellate court for the purpose of disposal afresh after properly casting the burden on the first defendant to prove that Ex. A-1 was not executed by Kaliaperumal on 11-8-1960.
14. In these circumstances, the second appeal is allowed. The matter is remanded to the file of the lower appellate Court for disposal afresh bearing in mind the observations made by this court in the foregoing paragraphs. It is open to the parties to put forth their arguments before the lower appellate court, with the evidence already on record. The court fee paid on the memorandum of grounds of second appeal will be refunded to the appellant. There will be order as to costs in second appeal. No leave. The lower appellate court is directed to dispose of the matter on remand within three months from today.
15. Appeal allowed.