KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES & ORS. versus SURENDRA DEO GAUR & ORS.
[2020] 13 S.C.R. 1030, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
[2020] 13 S.C.R.
KIRPA RAM (DECEASED) THROUGH LEGAL
REPRESENTATIVES & ORS.
v.
SURENDRA DEO GAUR & ORS.
(Civil Appeal No. 8971 of 2010)
NOVEMBER 16, 2020
[L. NAGESWARA RAO, HEMANT GUPTA AND
AJAY RASTOGI, JJ.]
Code of Civil Procedure, 1908: s.9 – Jurisdiction of civil court,
when not barred – Suit filed by respondents and for permanent
injunction claiming that the suit land situated in the revenue estate
of Village Basai Darapur, Delhi was owned and possessed by them
– Plea of appellant was that jurisdiction of civil court is barred  as
it is a boundary dispute between the village Basai Darapur and
village Shakarpur and such dispute has to be decided in terms of
s.28 of the Delhi Land Revenue Act, 1954 – Held: The boundary
disputes are between two revenue estates and does not include the
demarcation of the land of the parties – s.83 of the Land Revenue
Act bars the jurisdiction of the civil court in respect of : (a) the
arrangement of area of the patwaris; (b) claims by any person to
any of the offices mentioned in ss.13 or 14 or to any emolument or
fees appertaining to such office, or in respect of any injury caused
by his exclusion therefrom, or claims by any person to nominate
persons to such offices; (c) the formation of the record of rights or
the preparation, signing, or attestation of any of the documents
contained therein, or the preparation of the annual register – No
such dispute arose for consideration in the present matter
– Suit
was simplicitor for injunction based upon possession of the property
– The said suit could be decided only by the civil court as there was
no mechanism prescribed under the Land Revenue Act for grant of
injunction in respect of disputes relating to possession – Civil court
has plenary jurisdiction to entertain all disputes except in cases
where the jurisdiction of the civil court is either expressly or impliedly
barred in terms of s.9 of the Code – Delhi Land Revenue Act, 1954
– s.28.
[2020] 13 S.C.R. 1030
1030
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Code of Civil Procedure, 1908:  s.100 – Formulation of
substantial question of law or reformulation of the same in terms of
the proviso arises only if there are some questions of law and not in
the absence of any substantial question of law – High Court is not
obliged to frame substantial question of law, in case, it finds no
error in the findings recorded by the First Appellate Court.
Code of Civil Procedure, 1908:  Or.XLI r.27 – Permission to
produce additional documents – Held: Additional documents cannot
be permitted to be produced if they are not relevant to the plea
raised by the applicant.
Dismissing the appeal, the Court
HELD: 1. The application under Order XLI Rule 27 of the
Code was in respect of revenue documents in respect of Village
Basai Darapur. Admittedly, the appellants have no claim on any
part of the land of Village Basai Darapur. The appellants are
asserting their possession relating to Khasra No. 79 of Village
Shakarpur. The appellants have sought such revenue record in
the additional evidence as the same was not in their knowledge
and that no issue was also framed as to the correctness of the
area of Khasra No. 238 of Village Basai Darapur. The plaintiffs
have asserted their possession and title over Khasra No. 238 of
Village Basai Darapur whereas defendant No. 4 averred that the
land in dispute bears Khasra No. 79 situated in Village Shakarpur,
Delhi. It is to be noted that Issue Nos. 3, 4 and 5 were related to
ownership and
possession of Khasra No. 238 and whether the
land in dispute formed a part of Khasra No. 79 of Village
Shakarpur. Therefore, the entire argument that no issue was
framed in respect of correctness of area of Khasra No. 238 is
untenable. The parties have understood the case about the area
of Khasra No. 238 falling in Basai Darapur or in Khasra No. 79 of
Village Shakarpur. Once the parties have understood the said
controversy and had adduced evidence before the trial court, the
appellant cannot be permitted to produce additional evidence in
the first appeal. Thus, the additional documents cannot be
permitted to be produced as they are not relevant to the plea
raised by the appellant. [Para 17][1038-E-G; 1039-A-B]
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR
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[2020] 13 S.C.R.
2. The Land Revenue Act does not expressly bar the
jurisdiction of the Civil Court in respect of boundary disputes.
The boundary disputes are between two revenue estates and does
not include the demarcation of the land of the parties. Section 83
of the Land Revenue Act bars the jurisdiction of the Civil Court
in respect of : (a) the arrangement of area of the patwaris; (b)
claims by any person to any of the offices mentioned in section
13 or 14 or to any emolument or fees appertaining to such office,
or in respect of any injury caused by his exclusion therefrom, or
claims by any person to nominate persons to such offices; (c) the
formation of the record of rights or the preparation, signing, or
attestation of any of the documents contained therein, or the
preparation of the annual register. No such dispute arises for
consideration in the present matter. Still further, the suit is
simpliciter for injunction based upon possession of the property.
The said suit could be decided only by the Civil Court as there is
no mechanism prescribed under the Land Revenue Act for grant
of injunction in respect of disputes relating to possession. The
Civil Court has plenary jurisdiction to entertain all disputes except
in cases where the jurisdiction of the Civil Court is either
expressly or impliedly barred in terms of Section 9 of the Code.
Since there is no implied or express bar of jurisdiction of the
Civil Court in terms of
Section 9 of the Code, the Civil Court has
plenary jurisdiction to decide all disputes between the parties.
[Paras 18, 19, 20][1039-C-G]
3.  The High Court did not commit any illegality in not
framing any substantial question of law while dismissing the appeal
filed by the appellants. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High Court if it is
satisfied that the case involves a substantial question of law. The
substantial question of law is required to be precisely stated in
the memorandum of appeal. If the High Court is satisfied that
such substantial question of law is involved, it is required to
formulate that question. The appeal has to be heard on the
question so formulated. However, the Court has the power to
hear appeal on any other substantial question of law on satisfaction
of the conditions laid down in the proviso of Section 100 of the
Code. Therefore, if the substantial question of law framed by the
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appellants are found to be arising in the case, only then the High
Court is required to formulate the same for consideration. If no
such question arises, it is not necessary for the High Court to
frame any substantial question of law. The High Court is not
obliged to frame substantial question of law, in case, it finds no
error in the findings recorded by the First Appellate Court.
[Paras 21, 23][1040-F; 1041-E-H]
Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita &
Ors., (2004) 1 SCC 271 : [2003] 4 Suppl. SCR 325;
HubliDharwar Municipal Corporation & Anr. v. H.S.
Mohd. Khan (dead) by LRs. & Ors., (2002) 2 SCC 109;
Madhavan Nair v. Ramankutty & Anr., (2000) 2 SCC
356; N. Venkatareddy & Ors. v. Gopal & Ors. (2000)
10 SCC 309; Chandragouda & Anr. v. Shekharagouda
S.Pittanagoudar (dead) by LRs. & Ors. (2000) 10 SCC
617; Kshitish Chandra Purkait v. Santosh Kumar
Purkait & Ors., (1997) 5 SCC 438 : [1997] 1 Suppl.
SCR 201; South Delhi Municipal Corporation & Anr.
v. Today Homesand Infrastructure Pvt. Ltd. Etc. (2019)
SCC OnLine SC 1052; Ashok Rangnath Magar v.
Shrikant Govindrao Sangvikar (2015) 16 SCC 763 :
[2015] 12 SCR 931 – referred to.
Case Law Reference
[2003] 4 Suppl. SCR 325
referred to
Para 14
(2002) 2 SCC 109
referred to
Para 14
(2000) 2 SCC 356
referred to
Para 14
(2000) 10 SCC 309
referred to
Para 14
(2000) 10 SCC 617
referred to
Para 14
[1997] 1 Suppl. SCR 201
referred to
Para 14
[2015] SCR 931
referred to
Para 25
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 8971
of 2010.
From the Judgment and Order dated 25.08.2008 of the High Court
of Delhi at New Delhi in RSA No. 5 of 1998.
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR
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Dhruv Mehta, K. P. Dandapani, Vijay Hansaria, Sr. Advs., Aman
Vachher, Dhiraj, Ashutosh Dubey, Ms. Anshu Vachher, Abhishek
Chauhan, Ms. Rajshree Dubey, Arun Nagar, P. N. Puri, Vishwa Pal
Singh, R. A. Kalia, Jagdish Prasad, Prateek Rai, Ashish Pandey,
Ms. Kumud Nijhawan, Ms. Peeha Verma, Ashwani Kumar, M. M. Singh,
Rameshwar Prasad Goyal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeal has been preferred by Defendant No. 4,
against the concurrent findings of three Courts arising out of a suit for
permanent injunction.
2. The plaintiffs, now represented as respondent Nos. 1 and 2,
filed a suit for  permanent injunction on  31.7.1971 claiming that Khasra
No. 238 measuring 4 Bighas 3 Biswas, situated  in  the  revenue estate
of Village Basai Darapur, Delhi is owned and possessed by them. Earlier,
the plaintiffs had filed a suit for declaration challenging the vesting of
the said land in Gaon Sabha in a suit filed on 20.7.1959. The said suit
was decreed on 7.10.1960 holding that the plaintiffs are owners and
Bhumidars of land comprising in Khasra No. 238. The Union of India
had filed an application under Section 161-B of the Delhi Land Reforms
Act, 9541 for setting aside the said decree dated 7.10.1960 but such
application was dismissed by Sub-Judge, First Class, Delhi  on 24.5.1968.
3. The plaintiffs alleged that defendant No. 1 claimed that Khasra
No.
238 is part of the land allotted to it. The suit for permanent injunction
was thus filed by the plaintiffs apprehending threat to their possession of
land comprising Khasra No. 238, Village Basai Darapur, Delhi against
defendant No. 1 i.e. The Refugees’ Co- operative Housing Society Ltd.,
its President – defendant No. 2, Secretary – defendant No. 3 and
defendant No. 4, Kirpa Ram, predecessor in interest of the present
appellants. Two separate sets of written statements were filed before
the Court, one by defendant Nos. 1 to 3 and another by defendant No. 4.
The defendant Nos. 1 to 3 raised preliminary objection that the jurisdiction
of the Civil Court relating to Bhumidari land is barred under Section 85
of the Reforms Act. It was stated that defendant No. 4 threatened to
encroach upon the land in the Society comprising of Khasra No. 1273
which led to proceedings under Section 145 of the Code of Criminal
1 For short, the ‘Reforms Act’
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Procedure, 1973. Such proceedings have nothing to do with land
comprising in Khasra No. 238.
4. The defendant No. 4 in written statement asserted that the
plaintiffs were not in possession of the land in dispute and suit for injunction
was therefore not maintainable. It was further stated that defendant
Nos. 1 to 3 were not concerned with the land in question and that land
did not belong either to plaintiffs or defendant Nos. 1 to 3 and they were
not in possession thereof. Such land was in fact only in the possession
of the defendant No. 4. It was also stated that the land in dispute does
not bear Khasra No. 238 and that it is not situated in the revenue estate
of Village Basai Darapur. Instead, the land in dispute bears Khasra No.
79 and is situated in revenue estate of Village Shakarpur.
5. In view of the pleadings of the parties, the following issues
were framed by the trial court:
“1. Whether any notice u/s 70 of the Bombay Societies Act as
extended to the Delhi was not necessary to be served on the
defendants no. 1 to 3 before instituting the present suit? If so,
then to what effect? (Objected to).
2. Whether this Court has no jurisdiction to try this suit as mentioned
in the written statement?
3. Whether the plaintiffs are the  owners in  possession of the land
in dispute bearing khasra no. 238 as  alleged in the plaint?
4. Whether the land in dispute formed the part of khasra no. 238
of village Basai Darapur, Delhi as alleged in the plaint?
5.
Whether the land in dispute formed the part of khasra no. 79
situated in village Shakar Pur as mentioned in the written statement?
(objected to)
6. Whether this suit is properly valued for the purposes of court
fee and jurisdiction? If not, then to what effect?
7. Whether the suit is bad on account of mis-joinder of defendants
as  mentioned in the written statement? If so, then to what effect?
8. Whether the plaintiffs are entitled for a decree for permanent
injunction claimed in the plaint?
9. Relief.”
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR [HEMANT GUPTA, J.]
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6. With respect of Issue No. 2, the learned trial court held that the
suit was a simpliciter suit for injunction and the Court has the jurisdiction
to find out in which khasra number the land in dispute falls. It was thus
held that suit land falls in Khasra No. 238 in Village Basai Darapur and
is in the possession of the plaintiffs, therefore, the suit was decreed.
7. Issue Nos. 4 and 5 were taken up for decision together. The
plaintiffs had produced site plan (Ex.PW-3/1) pertaining to the year 1953-
54 when consolidation took place in Village Shakarpur. The plaintiffs
also produced site plan (Ex.PW-3/3) of Village Basai Darapur. The learned
trial court held that the consolidation had taken place in Village Shakarpur
and not in Village Basai Darapur. Therefore, the area of Khasra No.
238 could not be reduced from 4 Bighas 3 Biswas to 2 Bighas 6 Biswas.
It was held by the trial court as under:
“18. …One thing remains certain that the present defendants have
no concern in Khasra no. 238 village Basai Darapur. Either it
belongs to the plaintiffs or it vests in the Gaon Sabha. The present
defendants, who are third parties, have no right to challenge the
said judgment and decree passed in favour of the present plaintiffs.
Therefore, I hold that plaintiffs are the owners of khasra no. 238,
village Basai Darapur.”
8. The first appeal was filed by defendant No. 4 only. The First
Appellate Court after reappreciating the
evidence recorded the following
findings:
“14. From the above discussion it is clear that appellant/defendant
No.4 has not  been  successful before the trial court to show that
he was in possession of Khasra No.79 of village Shakarpur so
he cannot say that he is entitled to possession of the same under
the claim that this land forms part of Khasra No. 79 of village
Shakarpur and not to Khasra No. 238 of village Basaidarapur.
The claim of appellant/defendant No.4 stands falsifies upon his
own documents produced  by him before.”
9. In the memorandum of second appeal, the defendant No. 4
alleged that the following substantial questions of law arise for
consideration:
“1. Whether the appellate court could in law dispose of the appeal
without deciding the Preliminary issue of jurisdiction of the civil
court.
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2. Whether the appellate court could in law dispose of the appeal
without passing any order on the application dated 18th October,
1984 of the appellant under order 41 rule 27 of the Civil Procedure
Code for permission to lead additional evidence?
3. Whether the appellate court in law was jurisdiction in not
considering the provision of section 28 of the Delhi Land Revenue
Act, 1974 which  bars the jurisdiction of the Civil Court to entertain
boundary disputes?”
10. The first substantial question of law was based on an interim
order passed by the First Appellate Court on 9.5.1996 wherein the parties
were directed to first address the arguments on the issue of jurisdiction.
It has also come on record that the High Court had directed reconstruction
of the record of the First Appellate Court on 31.7.2007, as the same
was destroyed in an incident of fire during the year 1996.
11. The second substantial question of law raised was in respect
of an application for additional evidence filed under Order XLI Rule 27
of the Civil Procedure Code2. The defendant No. 4 sought to produce
the revenue record, Khasra Girdawari for the years 1953-54, 1954- 55,
1955-56, 1956-57, 1966-67 and 1983-84,  Jamabandi  for  the year 1944-
45 and mutation No. 2151, all of which pertained to Village Basai Darapur
vide the said application.
12. Mr. Mehta, learned senior counsel for the appellants vehemently
argued that the jurisdiction of Civil Court is barred as it is a boundary
dispute between the Village Basai Darapur and Village Shakarpur and
such dispute has to be decided in terms of Section 28 of the Delhi Land
Revenue Act, 1954 by the Commissioner.
13. The High Court vide judgment dated 25.8.2008  dismissed  the
second appeal filed by the appellants herein. Aggrieved by the findings
of the High Court, defendant No. 4 is in appeal before this Court.
14. The primary argument raised by learned counsel for the
appellants is  that the  High Court has dismissed the  appeal without
framing any substantial question of law which is mandatory in terms of
Section 100 of the Code. It was submitted  that since  the High Court has
dismissed the appeal without framing substantial question of law, the
matter should be remitted back to the High Court for determination of
2 For short, the ‘Code’
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR [HEMANT GUPTA, J.]
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such substantial question of law framed by the appellants, as reproduced
above. In support of the arguments, the appellants relied upon various
judgments3.
15. It has been argued that the First Appellate Court had ordered
that the question of jurisdiction of Civil Court would be decided first,
however the appeal was decided without dealing with the  said issue. It
is, thus, said to have caused serious prejudice to the rights of the
appellants. Similarly, the application under Order XLI Rule 27 of the
Code was not decided which was again prejudicial to their rights.
16. We find that such substantial questions of law, in fact, do not
arise for consideration. The issue of jurisdiction was not an issue of fact
but of law. Therefore, it could very well be decided by the First Appellate
Court while taking up the entire appeal for hearing. The trial court had
also not treated issue No. 2 relating to the jurisdiction of the Civil Court
as a preliminary issue. Therefore, it cannot be said that any prejudice
has been caused  to  the appellants by not deciding the issue of jurisdiction
of the Civil Court in the first instance by the First Appellate Court. It
may also be noticed that the plea of bar of jurisdiction was raised by
defendant Nos. 1 to 3 and not by the appellants.
17. Furthermore, the application under Order XLI Rule 27 of the
Code was in respect of revenue documents in respect of Village Basai
Darapur.
Admittedly, the appellants have no claim on any part of the
land of Village Basai Darapur. The appellants are asserting their
possession relating to Khasra No. 79 of Village Shakarpur. The appellants
have sought such revenue record in the additional evidence as the same
was not in their knowledge and that no issue was also framed as to the
correctness of the area of Khasra No. 238 of Village Basai Darapur.
The plaintiffs have asserted  their possession and title over Khasra No.
238 of Village Basai Darapur whereas defendant No. 4 averred that the
land in dispute bears Khasra No. 79 situated in Village Shakarpur, Delhi.
It is to be noted that Issue Nos. 3, 4 and 5 were related  to  ownership
and possession of Khasra No. 238 and whether the land in  dispute formed
3 Md. Mohammad Ali  (dead)  by  LRs  v.  Jagadish  Kalita  &  Ors.,  (2004)  1  SCC  271;
Hubli Dharwar Municipal Corporation & Anr. v. H.S. Mohd. Khan (dead) by LRs. &
Ors., (2002) 2 SCC 109; Madhavan Nair v. Ramankutty & Anr., (2000) 2 SCC 356; N.
Venkatareddy & Ors. v. Gopal & Ors., (2000) 10 SCC 309; Chandragouda & Anr. v.
Shekharagouda S. Pittanagoudar (dead) by LRs. & Ors., (2000) 10 SCC 617 and
Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors., (1997) 5 SCC 438
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a part of Khasra No. 79 of Village Shakarpur. Therefore, the entire
argument that no issue was framed in respect of correctness of area of
Khasra No. 238 is untenable. The  parties  have understood the case
about the area of Khasra  No. 238 falling in Basai Darapur or in Khasra
No. 79 of Village Shakarpur. Once the parties have understood the said
controversy and had adduced evidence before the trial court, the appellant
cannot be permitted to produce additional evidence in the first appeal.
Thus, the additional documents cannot be permitted to be produced as
they are not relevant to the plea raised by the appellant.
18. The Land Revenue Act does not expressly bar the jurisdiction
of the Civil Court in respect of boundary disputes. The boundary disputes
are between two revenue estates and does not include the demarcation
of the land of the parties. Section 83 of the Land Revenue Act bars the
jurisdiction of the Civil Court in respect of : (a) the arrangement of area
of the patwaris; (b) claims by any person to any of the offices mentioned
in section 13 or 14 or to any emolument or fees appertaining to such
office, or in respect of any injury caused by his exclusion therefrom, or
claims by any person to nominate persons to such offices; (c) the
formation of the record of rights or the preparation, signing, or attestation
of any of the documents contained therein, or the preparation of the
annual register. No such dispute arises for consideration in the
present
matter.
19. Still further, the suit is simpliciter for injunction based upon
possession of the property. The said suit could be decided only by the
Civil Court as there is no mechanism prescribed under the Land Revenue
Act for grant of injunction in respect of disputes relating to possession.
The Civil Court has plenary jurisdiction to entertain all disputes except in
cases where the jurisdiction of the Civil Court is either expressly or
impliedly barred in terms of Section 9 of the Code.
20. Since there is no implied or express bar of jurisdiction of the
Civil Court in terms of Section 9 of the Code, the Civil Court has plenary
jurisdiction to decide all disputes between the parties. The issue of
jurisdiction of the civil court has been considered by this Court in South
Delhi Municipal Corporation & Anr. v. Today Homes and
Infrastructure Pvt. Ltd. etc.4 wherein this Court held as under:
4 2019 SCC OnLine SC 1052
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR [HEMANT GUPTA, J.]
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“11. Any person having a grievance that he had been wronged or
his right has been affected can approach a civil court on the principle
of ‘ubi jus ibi remedium’ - where there is a right, there is a
remedy. As no internal remedy had been provided in different
statutes creating rights or liabilities, the ordinary civil courts had to
examine the grievances in the light of those statutes. With the
advent of a ‘Welfare State’, it was realised that enactments creating
liabilities in respect of payment of taxes, obligations after vesting
of estates and conferring rights on a class of citizens, should be
complete codes by themselves. With that object in view, forums
were created under the Acts themselves where grievances could
be entertained on behalf of the persons aggrieved (Shiv Kumar
Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161).
12. Wherever a right or liability, not pre-existing in common law is
created by a statute and that statute itself provides a machinery
for enforcement  of  such right or liability, both the right/liability
and the remedy having been created uno flatu and a finality is
intended to the result of the statutory proceedings, then, even in
the absence of an exclusionary provision the jurisdiction of the
civil court is impliedly barred. (Raja Ram Kumar Bhargava
(Dead) By LRs v. Union of India, (1988) 1 SCC 681).
13. We find that a liability for payment of tax is created by the
Delhi
Municipal Corporation Act, 1957. Further, a remedy by way
of an appeal against an order of assessment, before an appropriate
forum or authority, has been provided by the same statute.”
21. In view of the above, we find that the High Court did not
commit any illegality in not framing any substantial question of law while
dismissing the appeal filed by the appellants.
22. The argument of Mr. Mehta is that substantial question of
law is required to be framed by the High Court while deciding the second
appeal. We don’t find any merit in the argument. Section 100 of the
Code reads as under:
“100.  Second  appeal.—(1)  Save  as  otherwise expressly
provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High
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Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate decree
passed ex parte.
(3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and
the respondent shall, at the hearing of the appeal, be allowed to
argue that the case does not involve such question:
Provided that nothing in this sub-section  shall  be deemed to take
away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such
question.”
23. Sub-section (1) of Section 100 of the Code contemplates that
an appeal shall lie to the High Court if it is satisfied that the case involves
a substantial question of law. The substantial question of law is required
to be precisely stated in the  memorandum  of appeal.  If the High Court
is satisfied that such substantial question of law is involved, it is required
to formulate that question. The appeal has to be heard on the question
so formulated. However, the Court has the power to hear appeal on any
other substantial question of law on satisfaction of the
conditions laid
down in the proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants are found to be
arising in the case, only then the High Court is required to formulate
the same for consideration. If no such question arises, it  is  not necessary
for the High Court to frame any substantial question of law. The
formulation of substantial question of law or re- formulation of the same
in terms of the proviso arises only if there are some questions of law and
not in the  absence  of  any substantial question of law. The High Court
is not obliged to frame substantial question of law, in case, it finds no
error in the findings recorded by the First Appellate Court.
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR [HEMANT GUPTA, J.]
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24. Still further, we find that none of the judgments referred to by
the learned counsel for the appellants mandate the  High  Court  to
frame substantial questions of law while upholding the findings recorded
by the First Appellate Court. All the judgments referred to by the learned
counsel for the appellants except in Md. Mohammad Ali are the
judgments wherein the High Court has set aside the findings of the First
Appellate Court without framing substantial questions of law. In Md.
Mohammad Ali, this Court found that the High Court erred in dismissing
the appeal without formulation of substantial question of law which arises
for consideration. This Court held as under:
“33. The proposition of law relating to ouster of a co- sharer vis-
à-vis adverse possession had been overlooked by the High Court.
There are also certain other aspects of the matter which could
not be overlooked and probably would require closer examination
by the High Court.
34. The High Court while determining the  question should have
formulated substantial questions of law in terms of Section 100
of the Code of Civil Procedure, 1908. In absence of formulation
of such substantial questions of law, probably the High Court
committed the errors as pointed out hereinbefore.”
25. In a judgment reported as Ashok Rangnath Magar v.
Shrikant Govindrao Sangvikar5, this Court held that the second appeal
can be dismissed without even formulating the
substantial question of
law. The Court held as under:
“18. In the light of the provision contained in Section 100 CPC
and the ratio decided by this Court, we come to the following
conclusion:
(i) On the day when the second appeal is listed for hearing on
admission if the High Court is satisfied that no substantial question
of law is involved, it shall dismiss the second appeal without even
formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is
satisfied that the substantial question of law is involved, it shall
formulate that question and then the appeal shall be heard on
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those substantial question of law, after giving notice and opportunity
of hearing to the respondent;
(iii) In no circumstances the High Court can reverse the judgment
of the trial court and the first appellate court without formulating
the substantial question of law and complying with the mandatory
requirements of Section 100 CPC.”
26. In view of the above findings, we do not find any error in the
judgment and order of the High Court dismissing the Second Appeal.
The present appeal is  thus  dismissed. Pending applications, if any, shall
stand disposed of.
Devika Gujral
Appeal dismissed.
KIRPA RAM (DECEASED) THROUGH LEGAL REPRESENTATIVES v.
SURENDRA DEO GAUR [HEMANT GUPTA, J.]