(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code,against the judgment and decree, dated 04.07.2022 in A.S.No.60 of 2018 on thefile of the Principal District Court, Dindigul, partly reversing the judgment anddecree, dated 20.06.2016 made in O.S.No.263 of 2008 on the file of the PrincipalSub Court, Dindigul.)

1. The Second appeal is directed against the judgment and decree passed inA.S.No.60 of 2018, dated 04.07.2022 on the file of the Principal District Court,Dindigul, modifying the judgment and decree passed in O.S.No.263 of 2008,dated 20.06.2016 on the file of the Principal Sub Court, Dindigul.

2. The appellant is the first plaintiff. The appellant/first plaintiff along withrespondents 2 to 4/plaintiffs 2 to 4 filed a suit, directing the defendant to receiveRs.90,000/- payable by the plaintiffs 2 to 4 and to execute a document cancellingthe sale deed, dated 26.10.2007 or in alternative, directing the defendant to payRs.2,20,000/- with interest at Rs.2/- per Rs.100 per month from 26.10.2007 tillpayment.

3. The first respondent/defendant filed a written statement and contestedthe suit. The learned Subordinate Judge, after framing necessary issues and afterfull trial, passed a judgment and decree, dated 20.06.2016, partly allowing thesuit directing the defendant to pay Rs.2,20,000/- with interest at 12% per annumfrom 26.10.2007 till payment and in case of failure to pay, creating charge overthe suit property. Aggrieved by the said judgment and decree, the defendantpreferred an appeal in A.S.No.60 of 2018 and the learned Principal DistrictJudge, Dindigul, upon considering the materials available on record and onhearing the arguments of both the sides, passed the impugned judgment, dated04.07.2022, partly allowing the appeal and directed the defendant to pay a sum ofRs.70,000/- along with interest at 12 % per annum from 26.10.2007 till date ofdecree and thereafter at 6% per annum till the date of realization. Challenging theimpugned judgment and decree, the first plaintiff filed the present second appeal.

4. At the outset, it is necessary to refer the mandate of Hon'ble SupremeCourt for High Courts in deciding the second appeal under Section 100 of theCivil Procedure Code, given in the case of Gurnam Singh (dead) by LRs., andothers Vs. Lehna Singh (dead) by LRs., reported in AIR 2019 SC 1441, that thejurisdiction of the High Court in an appeal under Section 100 of the Code of CivilProcedure is strictly confined to the case involving substantial question of lawand the relevant passage is extracted hereunder:

               “18. Before parting with the present judgment, we remind theHigh Courts that the jurisdiction of the High Court, in an appealunder Section 100 of the CPC, is strictly confined to the caseinvolving substantial question of law and while deciding the secondappeal under Section 100 of the CPC, it is not permissible for theHigh Court to re-appreciate the evidence on record and interferewith the findings recorded by the Courts below and/or the FirstAppellate Court and if the First Appellate Court has exercised itsdiscretion in a judicial manner, its decision cannot be recorded assuffering from an error either of law or of procedure requiringinterference in Second Appeal. We have noticed and even asrepeatedly observed by this Court and even in the case of NarayananRajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catenaof decisions of this Court and even the mandate under Section 100 ofthe CPC, the High Courts under Section 100 CPC are disturbing theconcurrent findings of facts and/or even the findings recorded by theFirst Appellate Court, either without formulating the substantialquestion of law or on framing erroneous substantial question oflaw.”

5. The Hon'ble Supreme Court in the case of Chandrabhan Vs. Saraswatiand others reported in 2022 SCC OnLine SC 1273 specifically held that right ofappeal is not automatic and right of appeal is conferred by statute and whenstatute confers a limited right of appeal restricted only to cases which involvesubstantial questions of law, it is not open to the High Court to sit in appeal overthe factual findings arrived at by the First Appellate Court and the Hon'bleSupreme Court summarized the principles relating to Section 100 C.P.C., whichare as follows;

               “(i) An inference of fact from the recitals or contents of adocument is a question of fact. But the legal effect of the terms ofa document is a question of law. Construction of a documentinvolving the application of any principle of law, is also aquestion of law. Therefore, when there is misconstruction of adocument or wrong application of a principle of law inconstruing a document, it gives rise to a question of law.

               (ii) The High Court should be satisfied that the caseinvolves a substantial question of law, and not a mere question oflaw. A question of law having a material bearing on the decisionof the case (that is, a question, answer to which affects the rightsof parties to the suit) will be a substantial question of law, if it isnot covered by any specific provisions of law or settled legalprinciple emerging from binding precedents and involves adebatable legal issue. A substantial question of law will also arisein a contrary situation, where the legal position is clear, either onaccount of express provisions of law or binding precedents, butthe court below has decided the matter, either ignoring or actingcontrary to such legal principle. In the second type of cases, thesubstantial question of law arises not because the law is stilldebatable, but because the decision rendered on a materialquestion, violates the settled position of law.

               (iii) The general rule is that the High Court will notinterfere with findings of facts arrived at by the courts below. Butit is not an absolute rule. Some of the well-recognised exceptionsare where (i) the courts below have ignored material evidence oracted on no evidence; (ii) the courts have drawn wrong inferencesfrom proved facts by applying the law erroneously; or (iii) thecourts have wrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers to cases wherethere is a total dearth of evidence, but also refers to any case,where the evidence, taken as a whole, is not reasonably capableof supporting the finding.”

6. Bearing the settled legal position in mind, let us proceed with the presentcase.

7. The case of the plaintiffs is as follows :

               a) The defendant purchased the suit property vide sale deed, dated26.10.2007 for Rs.3,10,000/-, but Rs.90,000/- alone was paid. Both the firstplaintiff and the defendant entered into an agreement on 26.10.2007 permittingthe defendant to retain Rs.2,20,000/- from the sale price and the first plaintiffagreed to clear encumbrance existed over the suit property and to get backRs.2,20,000/- from the defendant.

               b) Though the first plaintiff approached the defendant several times anddemanded him to return the balance sale price of Rs.2,20,000/-, the defendant hasnot chosen to return the amount. Hence, the plaintiff was constrained to send alegal notice dated 21.07.2008, but the defendant having received the same,neither sent any reply nor complied with the notice demand. Hence, the plaintiffswere forced to file the suit.

8. The defence of the defendant is that the defendant has paid the entire saleconsideration of Rs.3,10,000/- on the date of sale deed and on that basis, saledeed was executed on 26.10.2007. Since the defendant came to know that thefirst plaintiff has already entered into the sale agreement with one Latha Rajanand hence, there was some encumbrances over the suit property, he directed thefirst plaintiff to make necessary arrangements and in pursuance of the same, thefirst plaintiff entered into an agreement with the defendant paying Rs.2,20,000/-to the defendant and agreed to get back that amount after settling theencumbrance over the suit property. Since the plaintiffs have not discharged theencumbrance over the suit property, the defendant was constrained to payRs.1,50,000/- towards principal and Rs.30,000/- for interest totally Rs.1,80,000/-to the said Latha Rajan on 11.02.2008, for which, the said Latha Rajan made anendorsement in the agreement. Though the defendant requested the plaintiff toreceive the balance amount of Rs.40,000/-, they refused to receive the same andthat the defendant is ready to deposit Rs.40,000/- before the Court.

9. The plaintiff filed a reply statement stating that the agreement enteredinto between the plaintiffs and the said Latha Rajan already got lapsed and shehas not shown any interest to purchase the property and therefore, the plaintiffsare not liable to pay any amount to the said Latharajan; that the said Latha Rajannever approached the plaintiff and claimed the refund of the amount and thatsince the plaintiffs have not directed the defendant to settle the amount allegedlydue to Latha Rajan, they are not entitled for reimbursement of the same.

10. During trial, the first plaintiff examined himself as P.W.1 and exhibitedfour documents as Ex.A.1 to Ex.A.4. The defendant examined herself as D.W.1and three other witnesses Thiru.K.K.P.Mani, Thiru.Shanmugam and Tmt.LathaRajan as D.W.2 to D.W.4 respectively and exhibited four documents as Ex.B.1 toEx.B.4.

11. It is not in dispute that the defendant purchased the suit property videsale deed, dated 26.10.2007 from the plaintiffs under Ex.A.1. The plaintiffs havenot specifically disputed Ex.A.1 sale deed, but according to the plaintiffs, thoughsale price was fixed at Rs.3,10,000/-, the defendant paid only Rs.90,000/-andretained Rs.2,20,000/- and that since the same was not paid, the present suit cameto be filed.

12. As rightly referred by the trial Court, P.W.1 in his cross examination would admit the payments found in Ex.A.1 sale agreement and the exact portionis extracted hereunder :



13. Considering the above, the trial Court has come to a finding that therewas no balance sale price due by the defendant to the plaintiffs. It is also not indispute that the first plaintiff and the defendant entered into an agreement on26.10.2007 under Ex.A.2 and the relevant recitals are extracted hereunder forbetter appreciation





14. It is also not in dispute that the first plaintiff had entered into a saleagreement with D.W.4 Latha Rajan for the suit property, which did notmaterialise. According to the defendant, the plaintiff failed to inform the earlieragreement with the said Latha Rajan and after coming to know about the same,the defendant demanded the first plaintiff to safeguard his interest. It is theirfurther case that the first plaintiff gave Rs.2,20,000/- from sale price andrequested the defendant to retain the said amount and agreed to clear theencumbrance over the suit property and to get back the amount from thedefendant.

15. It is the specific case of the defendant that since the plaintiffs have notcleared the encumbrance and D.W.4 approached the defendant to get her amountdue by the first plaintiff, the defendant with no option paid Rs.1,50,000/- towardsprincipal and Rs.30,000/- as interest totally Rs.1,80,000/- on 11.02.2008 andupon receiving the same, she made an endorsement under Ex.P.2 on the back sideof Ex.B.1 agreement.

16. The main contention of the plaintiff is that Ex.B.1 agreement enteredinto between the plaintiffs and the Latha Rajan already got lapsed and moreover,she was not interested in purchasing the property and that therefore, the plaintiffsare not liable to pay any amount to the said Latha Rajan. Even assuming that theyare liable, it is for the plaintiffs to settle the amount and not for the defendant tosettle the amount and claim set off. No doubt, as rightly pointed out by the trialCourt, there was no term or clause in Ex.A.2 agreement for the defendant hasto clear the encumbrance

17. As rightly observed by the learned trial Judge, Section 62 of LimitationAct sets a 12-years limitation period to "enforce payment of money secured by amortgage or charged on immovable property, staring from when the moneybecomes due. The plaintiffs have specifically admitted the Ex.B.1 agreement withLatha Rajan, but the same was not materialized. As contended by the defendantbefore the appellate Court, the said Latha Rajan to get the refund of the amountpaid under Ex.B.1 sale agreement, is having charge over the suit property and thatshe can enforce that right within a period of 12 years as per Section 62 ofLimitation Act.

18. The defendant relied on Sections 69 and 70 of the Indian Contract Actbefore the first appellate Court. Section 69 allows reimbursement if someonepays money another is legally bound to pay, and payer has an interest in payment.

19. Section 70 obliges a person who receives a non-gratuitous benefit froman act done lawfully for them to compensate the doer.

20. In other words, Section 69 lets someone recover money paid to protecttheir interest if another was legally required to pay. Section 70 requirescompensation if someone benefits from an act done non-gratuitously.

21. In the present case, as already pointed out, it is not the case of theplaintiff that the first plaintiff paid the amount due to D.W.4 Latha Rajan andcleared the encumbrance. Since the first plaintiff failed and also the fact that theencumbrance was subsisting, according to the defendant, she was forced to paythe amount due to D.W.4 Latha Rajan and as such, she is entitled to make set offin the amount due by her to the first plaintiff.

22. The first appellate Court has rightly applied the legal position and cameto a finding that the defendant is entitled to set off Rs.1,50,000/-, which was paidto D.W.4 Latha Rajan and is liable to pay Rs.70,000/- along with interest at 12%per annum till the date of sale deed and thereafter, 6% per annum till the date ofrealization.

23. Moreover, in the absence of any contract between the parties, theappellate Court refused to set off Rs.30,000/-which was paid towards interest toD.W.4. Considering the above, the first appellate Court has rightly allowed theappeal in part and directed the defendant to pay Rs.70,000/- with interest andcosts. The appellant has not shown that any material evidence available in thecase had been ignored by the first appellate Court or that there was no evidence atall. The appellant has also not shown any wrong inference had been drawn by thefirst appellate Court from the proved facts by applying the law erroneously. Theappellant has also not canvassed any stand that the Courts below have wronglyplaced the burden of proof.

24. It is pertinent to note that the first appellate Court on appreciating andre-appreciating the evidence and the legal aspects in proper perspective has cometo a definite decision that the plaintiff is entitled to get the reliefs claimed.

25. Considering the judgments of the Courts below, as rightly contended bythe learned counsel for the respondent, no question of law much less SubstantialQuestion of Law is made out. It is not open to this Court to sit in appeal over thefactual findings arrived at by the first appellate Court, confirming the findings ofthe trial Court. Hence, this Court concludes that since no substantial question oflaw is made out in the second appeal, the same is liable to be dismissed.

26. In the result, the Second Appeal is dismissed, confirming the judgmentof the appellate Court made in A.S.No.60 of 2018, dated 04.07.2022 on the file ofthe Principal District Court, Dindigul, modifying the judgment and decree madein O.S.No.263 of 2008 on the file of the Principal Sub Court, Dindigul.