SYEDA RAHIMUNNISA versus MALAN BL (DEAD) BY L.RS. & ANR. ETC.
[2016] 6 S.C.R. 512, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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[2016] 6 S.C.R. 512 
SYEDA RAHIMUNNISA 
v. 
MALAN Bl (DEAD) BY L.RS. & ANR. ETC. 
(Civil Appeal Nos. 2875-2879 of2010) 
OCTOBER 03, 2016 
[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.) 
Code of Civil Procedure, 1908 - s.100, Or. XL! rr. 23, 23-A 
and 25 - Two suits by appellants against re5pondents [one for their 
eviction from the suit land (tenanted premises) and the other for 
money decree towards damages for use and occupation of suit land] 
- Three suits were filed by the respondents [first for declaration of 
their ownership by adverse possession against Government; second 
for injunction restraining Electricity Board for disconnecting 
electricity supply, and third against the Municipality] - Trial court 
decreed the suits of appellants holding that they have established 
land-lord and tenant relationship while the respondents have jailed 
to establish their title over the suit land - Order of trial court affirmed 
by first appellate Court - High Court allowed the second appeals 
and remanded the cases to trial court for fresh trial - On appeal, 
held: The questions formulated by High Court cannot be regarded 
as satisfying the test of being 'substantial questions of law' within 
meaning of s.100 as they were neither debatable nor arguable -
The concurrent findings on facts, on due appreciation of evidence 
by two courts, were binding on High Court - The High Court also 
did not have jurisdiction to remand the case for denovo trial - High 
Court
neither formulated any question as regards the remand nor 
did any party raise this ground complaining about the proceedings 
in the lower courts - Power of appellate court to remand a case to 
subordinate court is contained in Or. XL! rr.23, 23-A and 25 - The 
Court is required to record reason as to why it has taken course to 
any out of the three rules for remanding the case - Ihere is no error 
in the judgment of first appellate court which rightly upheld decree 
of trial court. 
Allowing the appeals, the Court 
HELD: 1.1 The questions formulated by High Court cannot 
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ANR. ETC. 
be regarded as satisfying the test of being a "substantial questions 
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of law" within the meaning of Section 100 of CPC. These 
questions are essentially questions of fact. In any event, the 
second appeal did not involve any substantial questions of law as 
contemplated under Section 100 of CPC and lastly no case was 
made out by the respondents before the High Court for remanding· B 
of the case to the trial court for de novo trial in all the civil suits. 
[Para 27] [526-F-G] 
1.2 When the trial court and the first appellate court on 
appreciation of evidence concurrently held in three civil suits 
filed by the respondents that they failed to prove their title over 
the suit-land and further in two civil suits filed by the appellants 
that they were able to establish their relationship of landlord and 
tenant in relation to the suit-land, such findings, were binding on 
the High Court being concurrent in nature. [Para 28] [526-G-H; 
527-A) 
1.3 None of the findings of the two courts below were 
perverse to the extent that no judicial person could ever come 
to such conclusion and that these findings were not in conflict 
with any provision of law governing the issue and that the findings 
were also not against the pleadings or evidence. In this view of 
the matter, these findings were not capable of being set aside by 
the High Court in exercise of its second appellate jurisdiction 
under Section 100 CPC,
rather they were binding on the High 
Court. [Para 29) [527-B-C] 
1.4 Sine qull non for admitting the second appeal was 
existence of "substatJtial question of law in the case" and 
therefore unless the questiQM-iramed were debatable, or/and 
arguable or/and involving any legal question, the High Court had 
no jurisdiction to formulate such questions treating them to ·be 
substantial question oflaw. The questions formulated were neither 
debatable nor arguable and nor did they involve any question of 
law which could be said toarlse in the case. Indeed the High 
Court had the jurisdiction under sub-Section (5) of Section 100 
of CPC to examine at the time of hearing as to whether the 
questions framed were substantial questions of law or not and 
whether they arose out of the case, but the High Court failed to 
do so. [Para 30) [527-C-E] 
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1.5 Having formulated the questions (though wrongly), the 
High Court went on. to discuss all the issues as if it was hearing 
first appeals and instead of answering the questions, set aside 
the judgment/decree of the two courts below and proceeded to 
remand the cases to the trial court for de ll(JVO trial in all civil 
suits. [Para 311 [527-E-F) 
2.1 The High Court had no jurisdiction to remand the case 
to the trial court inasmuch as no party to the appeal had even 
raised this ground before the first appellate court or/and the High 
Court as to why the remand of the case to the trial Court is called 
for and nor there was any finding recorded on this question by 
the first appellate court. [Para 'JI] [527-F-G] 
2.2 No party to the appeals complained at any stage of the 
proceedings that the trial in the suits was unsatisfactory which 
caused prejudice to them requiring remand of the cases to the 
trial court to enable them to lead additional evidence. In any event, 
the High Court also did not frame any substantial question of law 
on the question as to whether any case for remand of the case to 
the trial court has been made out and if so on what grounds. The 
jurisdiction of High Curt to decide the second appeal u/s. 100 
CPC is confined only to questions framed. When the High Court 
did not frame any question on the question of remand, to the trial 
court a fortiori it had no jurisdiction to deal
with such question 
much less to answer in respondent's favour. [Paras 32 and 33) 
[527-G-H; 528-A-B] 
2.3 The High Court further failed to see that if the first 
appellate court could decide the appeal on merits without there 
being any objection raised for remanding of the case to the trial 
court. [Para 34] [528-C] 
2.4 In order to claim remand of the case to the trial court, it 
is necessary for the appellant to first raise such plea and then 
make out a case of remand on facts. The power of the appellate 
court to remand the case to subordinate court is contained in 
order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory 
upon the appellant to bring the case under any of these provisions 
before claiming a remand. The appellate court is required to 
record reasons as to why it has taken recourse to any one out of 
the three Rules of Order XLI of CPC for remanding the case to
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS. & 
ANR. ETC. 
the trial court. In the absence of any ground taken by the 
respondents before the first appellate court and the High Court 
as to why the remand order in these cases is called for and if so 
under which Rule of Order XLI of CPC and further in the absence 
of any finding, there was no justification on the part of the High 
Court to remand the case to the trial court. The High Court 
instead should have decided the appeals on merits. [Para 35] 
528-D-F] 
3.1 There is no error in the judgment of the first appellate 
court, which rightly upheld the judgment and decree of the trial 
court. The main case set up by the respondents for claiming title 
over the suit-land was founded only on the plea of adverse 
possession against the State. The respondents did not claim title 
on the strength of any grant or Lease Deed or Patta etc. issued 
by the State in their favour. [Paras 36 and 37] (528-G-H; 529-A-
B] 
3.2 The respondents having set up this plea were required 
to prove it with the aid of satisfactory evidence as the burden of 
proof lay on them being the plaintiffs. Both the courts held on 
appreciation of evidence that the respondents failed to establish 
their adverse possession over the suit-land qua State for want of 
adequate evidence. It being a question of fact, a finding on this 
question was binding on the High Court unless any error of law 
in such finding had been pointed out. [Para 39] (529-C-D] 
Santosh
Hazari v. Purushottam Tiwari (Deceased) by 
LRs. 2001 (1) SCR 948 : (2001) 3 sec 179; 
Thiagarajan and Others v. Sri Venugopafaswamy B. Kail 
and Others 2004 (2) SCR 1229 : 2004 (5) SCC 762 -
relied on. 
Case Law Reference 
2001 (1) SCR 948 
2004 (2) SCR 1229 
relied on 
relied on 
Para 24 
Para 25 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2875-
2879of2010. 
From the Judgment and Order dated 21.08.2008 of the High Co mt 
of Judicature at Andhra Pradesh at Hyderabad in S. A. Nos. 1151/98, 
76/99, 167/99, 168/99and 169/99. 
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Ram Lal Roy, Ms. Anjani Aiyagari, Ms. M. V. Rama, (For Mis. 
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K. Ramkumar & Associates), Advs. for the Appellant. 
Rameshwar Prasad Goyal, Adv. for the Respondent. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. I. These appeals by special 
leave are filed by the appellant-defendant against the common judgment 
dated 21.08.2008 of the High Court of Judicature, Andhra Pradesh at 
Hyderabad in S.A. Nos. 1151 of 1998, 76, 167, 168 and 169 of 1999 
whereby the learned Single Judge of the High Court allowed the appeals 
filed by the respondents-plaintiffs, in consequence, set aside the decree 
and commonjudgmentdated 15.10.1998 of the Court of Additional District 
Judge, Kurnool in A.S. Nos.56, 57, 58 59 and 60of1997 dismissing the 
first appeals filed by the respondents herein. 
2. Facts of the case need mention, in brief, infra to appreciate the 
controversy involved in the appeals. 
3. These appeals involve a short point. However, in order to 
appreciate the point, it is necessary to mention the relevant facts infra. 
4. The two appellants- Smt. Syeda Rahimunnisa and Syed Hyder 
Hussaini are wife and husband whereas the respondent no. l(a) to l(f) 
are the legal heirs of one late Haji Mian being mother, wife, sons and 
daughters respectively. 
5. The dispute between-the two aforementioned families relates 
to the ownership and possession of portion of land (which is a part of 
entire area
classified as Government Burial Poramboke) situated in 
Kurnoo1 (AP) bearing S.No.35/5 renumbered as 35/5-C 1/ A-1 
(hereinafter called "the suit-land"). 
6. The appellants filed two civil suits being O.S.No. 77of1994 
and O.S.No 65 of 1995 against Haji Mian and others. The present 
respondent nos. !(a) to l(f) who were later added as party defendants 
are legal representatives ofHaji Mian. 
, 7. So far as O.S. No 77 of 94 is concerned, the appellants 
(plaintiffs) claimed therein eviction of the respondents from- the suit-
Iand. It was alleged that appellant no. I being the owner of the suit-land 
had inducted resppndent no. I (defendant no. I) as her tenant on a monthly 
rent ofRs.150/- for a period of three years on the strength oflease deed
SYEDA RAHIMUNNISA v. MALAN Bl (DEAD) BY L.RS. & 
ANR. ETC. [ABHAY MANOHAR SAPRE, J.] 
dated 01.06.1982. It was alleged that contrary to lease conditions and 
without appellants' consent, the respondent no. I erected four huts and 
sublet to defendant nos.2 to 6 on monthly rent. It was also alleged that 
respondents denied appellants' title. 
8. So far as O.S. no. 65 of 1995 is concerned, the appellants 
(plaintiffs) claimed therein money decree ofRs.5400/- towards damages 
for use and occupation of the suit-land for the period (01.07 .1989 to 
31.07.1992) i.e. 36 months and further at the rate ofRs.1507/-permont~ 
for preceding three years ending on 30.06.1992 against the respondents. 
9. So far as the respondents are concerned, they filed three civil 
suits being O.S. No. 53of1993, 0.S.No. 69of1994 and O.S.No. 71 of 
1994 against the appellants in the Court of Principal Subordinate Judge, 
Kumool. 
10. So far as O.S.No.53 of 1993 is concerned, the respondents 
(plaintiffs) filed a suit against appellant No.I and State of A.P. for a 
declaration that respondents are the owners of the suit-land and also 
they are entitled to claim permanent injunction against the ~ppellants 
from interfering in their possession over the suit-land. The respondents 
in substance claimed title over the suit-land by adverse possession against 
the Government alleging that their predecessor were in possession of 
the suit-land for the last 100 years and on their death, respondents 
continued to
remain in possession throughout and has, therefore, perfected 
their title by being in adverse possession to the exclusion of all, including 
the Government as owners. 
11. So far as second suit being O.S.No. 69of1994 is concerned, 
it was filed by the respondents against the appellant no. I and APEB to 
challenge the notice dated 07 .06.1990 issued by APES for disconnecting 
the electric supply to the respondents' structure. A relief of permanent 
injunction restraining the defendants (APEB) from giving effect to the 
notice was also prayed. 
12. So far as the third suit being O.S.No. 71 of 1994 is concerned, 
the respondents filed this suit against the Municipality and the appellant 
no. 1 challenging therein the assessment made by the Municipality by 
which appellants names were entered in the register of Municipality in 
relation to the suit-land/structure. According to the respondents, they 
having perfected their title over the suit-land by adverse possession, 
their names should have been entered in place of the appellants names 
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in the records of the Municipality. 
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13. Since all the aforementioned five suits were in relation to one 
suit-land and were between the same parties pending in different courts, 
all the five civil suits were clubbed together for disposal in accordance 
with law. Parties adduced common evidence in all the five civil suits. 
14. By a common judgment and decree dated 22.04.1997, the 
learned trial judge dismissed three civil suits being O.S.Nos. 53of1993, 
69 of 1994 and 71 of 1994 filed by the respondents, whereas decreed 
the appellants' two civil suits being O.S.Nos. 77 of 1994 and 65of1995. 
It was held that respondents in their suits failed to establish their title 
over the suit-land. It was held that since they failed to establish their title 
over the suit-land, a fortiori, they are not entitled to claim permanent 
injunction against the appellants over the suit-land. So far as appellants' 
two civil suits are concerned, it was held that appellants were able to 
establish the relationship oflandlord and tenant between appellant No. I 
and the respondent and hence they are entitled to claim the eviction of 
the respondents from the suit-land. It was also held that appellants are 
also entitled to claim the money by way of damages from the respondents 
for the period in question for the use and occupation of the suit-land as 
claimed in the suit. 
15. The respondents felt aggrieved, filed five appeals
being S.A. 
No 56of1997, 57of1997, 58of1997, 59of1997 and 60of1997 before 
the II Additional District Judge, Kurnool. By five separate judgments 
dated 15. I 0.1998, the first appellate court dismissed all the five appeals 
and affirmed the judgment and decree of the trial judge. 
16. Felt aggrieved, the respondents filed five Second appeals before 
the High Court. The High Court admitted the appeals and by impugned 
order allowed the appeals and while setting aside the two courts judgment/ 
decree remanded the cases to the trial court for fresh trial on merits by 
permitting the parties to amend the pleadings, to frame additional issues 
and to adduce the evidence. The concluding para of the High Court 
reads as under:-
" .•..•. in the light of the respective stands taken by 
the parties, without expressing any further opinion 
relating to the other aspects, this Court is inclined to 
set aside the Decrees and common judgment made 
by the Court of first instance and also the Decrees 
and judgments made by the appellate Court and
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS. & 
ANR. ETC. [ABHAY MANOHAR SAPRE, J.] 
remand these matters to the Court of first fos'tilltce -
to record the evidence of P. W.4 in to to and also to 
permit the parties to let in further evidence relating 
to the identity- of the property especially in the light 
of the admissions made by D.W.1 and record further 
findings if necessary permitting the parties to amend 
their respective pleadings and also setting additional 
issu,~s as well and further permitting the parties to it 
in further evidence on such additional pleadings and 
additional issues as well which may arise for 
consideration in the peculiar facts and circumstances 
of the case." 
I 7. Felt aggrieved, the appellants who are plaintiffs in their two 
civil suits and defendants in three civil suits filed by the respondents 
herein have filed these appeals by special leave. 
18. Learned counsel forthe appellants while assailing the legality 
and correctness of the impugned judgment urged four submissions. 
19. Firstly, the learned counsel contended that the High Court 
erred in admitting the second appeals on questions, which according to 
him did not arise out of the case and in any case, the questions framed 
were not the substantial questions of law within the meaning of Section 
I 00 of Code of Civil Procedure. Secondly, his contention was that High 
Court erred in setting aside the concurrent findings of facts recorded by 
the two courts below. It was his
submission that .these findings were 
binding on the High Court while hearing the second appeal. Thirdly, his 
content_ion was that there was no case made out by the respondents 
(who were appellants before the High Court in second appeals) before 
the High Court for remanding the cases to the trial court for de nova 
trial in the suits. It was urged that firstly it was nobody's case much less 
of the appellants before the High Court that the trial in the suits was 
unsatisfactory or/and that the parties were not afforded full opportunity 
to present their case; secondly, this objection was neither raised by the 
appellants before the first appellate court and nor before the High Court; 
thirdly, no question oflaw was framed by the Hi.gh Court on the issue of 
remanding the cases to the trial court. In these cird.iinstances, the remand 
order is wholly without jurisdiction and fourthly, learned counsel contended 
that both trial court and the first appellate court on proper appreciation 
of evidence having rightly held that the respondents failed to establish 
their title over the suit-land on their plea ofadverse possession, whereas 
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the appellants were able to establish the existence of relationship of 
landlord and tenant between the appellants and the respondents, therefore, 
these findings were binding on the High Court. 
20. Per contra, learned coun~el for the respondents supported the 
reasoning and the conclusion arrived at by the High Court and urged for 
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21. Having heard the learned counsel forthe parties and on perusal 
of the record of the case, we are inclined to accept the submissions 
urged by the learned counsel for the appellants, as in our view, it has 
force. 
22. The questions which arise for consideration in these appeals 
are (i) whether the second appeal filed by the respondents involved any 
substantial question of law within the meaning of Section I 00 of the 
Code of Civil Procedure Code, 1908 (for short "CPC"): (ii) whether the 
High Court was justified in admitting the respondents' second appeal on 
the questions framed and if so whether the questions framed can be 
regarded as substantial questions of law arising out of the case; (iii) 
whether the High Court was justified in remanding the case to the trial 
court for de nova trial in all the five civil suits and (iv) whether the 
respondents were able to prove their title over the suit-land so also 
whether the appellants were able to prove the existence of relationship 
of landlord and tenant between the appellants and the respondents. 
23.
The scope of Section JOO ofCPC while deciding the second 
appeal by the High Court has been the subject matter of several decisions 
of this Court and thus remains no more res integra. A reference to the 
two cases on this question would suffice. 
24. A three-judge Bench of this Court in the case of Santosh 
Hazari vs. Purushottam Tiwari (Deceased) by LRs. reported in 
(200 I) 3 SCC 179 speaking'!Tfrough R.C. Lahoti J (as His Lordship then 
was) examined the scope of Section I 00 ofCPC in detail and laid down 
the following propositions in paragraphs 9, I 0, 12 and 14 as under: 
"9. The High Court cannot proceed to hear a second 
appeal without formulating the substantial question 
of law involved in the appeal and if it does so it acts 
illegally and in abnegation or abdication of the duty 
cast on Court. The existence of substantial question 
of law is the sine qua non for the exercise of the
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS. & 
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jurisdiction under the a.m.ended Section lOO of the Code. 
(See Kshitish Chandra Purkait v .. Santosh Kumar Purkait 
(1997) 5 SCC 438, Panchugopal Barua v: Umesh Chandra 
Goswami (1997) 4 SCC 4U and Kondiba Dagadu Kadam 
v. Savitribai Sopan Gujar (1999)3 SCC 722) 
10. At the very outset we may point outlhat the memo 
of second appeal filed by the plaintiff-appellant before 
the High Court suffered from a serious infirmity. Section 
lOO of the Code, as amenqed in 1976, restricts the. 
ju~isdiction 6f the High Court to hear a second appeal 
. only on "substantial question oflaw involved in the case". 
An obHgation is cast 0;1 the appellant to precisely state 
in the memorandum of appeal the substantial question 
of law involved in the appeal and which the appellant· 
proposes to urge before the High Court. The High Court , 
must be satisfied that a substantial question of law is 
involved in the case and such question has then to be 
formulated by the High Court. Such questions or 
question may be the one proposed by the appellaat or 
may be any"other question which though not proposed 
by the appeliant yet in the opinion of tlie High Court 
arises as involved in the case a1t.d is substantial in nature. 
At the hearing_ of the appeal, the s~ope of hearing is 
circumscribed by the question so formufated by the High 
. _Court. The respondent is at liberty to show that "the 
question
formulated by the High Court was not invol\l.ed 
in the case In spi1" uf. a substantial question ·of law 
determining the scope of hearing of second appeal having 
be.en formulated by the.High Court,Jts power to h~ar 
the appealon any other substantial que~tion oflaw,-.not 
earlier formulated by it, is not taken away sulJjeet to the 
twin conditions.being satisfied: (r) the High Courtfeels 
, 
s~tisfied that the case involves such question, and (ii) 
the High Court records reasons for its such satisfaction. 
12. The phrase "substantial questio·n oflaw", as occurring 
.in the amcded Section 100 is not defined in the Code. 
The word substantial, l!'.' qualifying "question of Ia_w", 
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· means:- of having substance, essential, r!al, ofsound 
worth, important or considerable. It is tu be 
under~tood as something in confradistincti~n jvit~ ---"". 
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technical, of no substance or consequence, or 
academic merely. However, it is clea1· that the 
legislature has chosen not to qualify the scope of 
"substantial question of law" by suffixing the words 
"of general importance" as has been done in many 
other provisions such as Section 109 of the Code or 
Article l33(1)(a) of the Constitution. The substantial 
question oflaw on which a second appeal s)!all be heard 
need not necessarily be a substantial question of law 
of general importance. 111 Gu ran Ditta v. T. Ram Ditta 
(AIR 19iS PC 172), t'he phrase "substantial question 
of law" as it was employed in the last clause of the 
then existing Section 110 CPC (since omitted by the 
Amendment Act, 1973) came up for consideration and 
their Lordships held thatit did not mean a substantial 
question of general importance but a substantial 
question of law which was involved in the case as 
between the parties. In Sir Chunilal V. Mehta & Sons 
Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC 
1314) the Constitution Bench expressed agreement 
with the following view taken by a Full Bench of the 
Madras High Court in Rimmalapudi Subba Rao v •. 
·· Noony Veeraju (AIR 1951 Mad 969): 
"When a question oflaw is fairly arguable, where 
there is room ·for difference of opinion on it or 
1 where the Court thought it necessary to deal 
with that question at some length and discuss 
alternative views, then the question
would be a 
substantial question of law. On the other hand 
if the question was practically covered by the · 
decision of the highest court or if the general 
principles to be applied in determining the 
question are well settled and the only question 
was of applying those principles to the particular 
. facts of the case it would not be a substantial . 
question of law." 
an(j laid down the following test as proper test, for 
determining whether a question oflaw raised in the 
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case is substantial:
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS.-& 
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"The proper test for determining whether a question of 
law raised in the case is substantial would, in our opinion, 
be whether it is of general public importance or whether 
it directl_y and substar.tially affects the rights of the 
parties .and if so whether it is either an open question in 
the se1:se that it is not finally settled by this Court or by 
the Priv) Council or by the Federal Court or is not free 
· from difficulty or calls for discussion of ahernative views.'_ 
If ·the question is settled by the highest court or the 
general principles to be applied in determining the 
question are well settled and there is a mere question of 
. applying- those principles or that the plea raised is 
·palpably absurd the question would not be a substantial 
question oflaw." 
14. n. point of law which admits of no two opinions may 
be a proposition of law but cannot be a substantial 
question of. law. To be "substantial" a question of law 
must be debatable, not previously settled by law of the 
land or a binding pre~edent, and must hav~ _ _,a-Illaterial 
bearing on the decisipn of the case, if answered either 
way, insofar as the rights of the parties before it are 
concerned. To be a question oflaw "involving in the c~se" 
there must be:first a foundation for it laid in the pleadings 
and the question should emerge from the sustainable 
findings of fact arrived at by court of facts and
it must 
be necessary to decide that question oflaw for a just and 
proper dedsio" ".-the case. An entirely new point r.aised 
for the fir~t time before the High Court is not a question. 
involved in the case unless it goes to the root of the 
matter. It will, therefore, depend on the facts and 
circumstance of each case whether a question of law is a 
substantial one and involved in the case, or not; the-
paramount overall <;onsideration being the need. for 
; , striking a judicious balance between th~ndispensable 
pbligatio'n to do justice at all stages and impelling . 
r.ecessity of avoiding prolongation in the life of any tis". 
25. Again in the case of Thiagarajan 'And Others VS; Sri 
Venugopalaswamy B. Koil And Others reported in 2004 (5) SCC 762, a 
two Judge Bench of this Court in para.graphs 17, 24, 25 and 26 observed 
as under: 
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"17. Sub-section (5) of Section 100 CPC says that 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 a 
questiun. The proviso states that nothing in this sub-
section shall be deemed to take away or abridge the power 
oft.he Court to hear, for reasons to be recorded, the appeal 
on any other substantial question of law not formulated 
by it ifit is satisfied that the case involves such questi6n. 
In the instant case, the High Court at the time of final 
hearing formulated five more questions oflaw as extracted 
above after hearing the counsel for both sides having 
miserably failed to record the reasons for formulating 
the other substantial questions of law. 
24. In our opinion, the High Court has erred in holding 
that the appellants have failed to estabHsh their title to 
the suit property evidently without appreciating the 
evidence on record in its proper perspective by making 
only. reference to portions of evidence having once decided 
to reappreciate the evidence. The High Court, in our 
opinion, ought to have examined the entire.evidence both 
oral and documentary instead of only a portion thereof 
especially while deciding to look into and rea ppreci;tte 
the evidence despite the limited scope under Section 100 
CPC. In our view, the learned Single Judge of the High 
Court
has exceeded his jurisdiction in reassessing, 
reappreciating and making a roving enquiry by entering 
into the factual arena of the case which is not the one 
contemplated under the limited scope of jurisdiction ofa 
second appeal under Section 100 CPC. 
25. In the present case, the lower appelll!te court fairly 
appreciated the evidence and arrived at a conclusion that 
the appellants' suit was to be decreed and that the 
appellants are entitled to the relief as prayed for. Even 
assuming that another view is possible on a reappreciation 
of the same evidence, that should not have been done by 
the High Court as it cannot be said that the view taken 
by the first appellate court was based on no material.
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS. & 
ANR. ETC. [ABHAY MANOHAR SAPRE, J.] 
26. To say the least the approach of the High Court was 
not proper. It is the obligation ·or the courts of Jaw to 
further the clea.r intendment of the legislature and not 
frustrate it by excluding the same. This Court in a catena 
of decisions held that where findings Of fact by the lower 
appellah" court are based on evidence, the High Court in_ 
second api.Jeal cannot substitute its own findings on 
reappreciation of evidence merely on the gronnd that 
another view was possible". 
26. Reverting to the facts of the case at hand and keeping in view 
the aforesaid principles oflaw in mind, we find that the High Court while 
admitting the second appeal had formulated the following quesr:.:;ns: 
. 
. 
1) Whether the finding of the Court below, that the suit 
· site 011 ~.S.No.53/93 in S.No.35/S, Ex.C.IAI and the leased 
site, surrendered by P.W.6 in S.No.35/5CIA19 arc one 
and the same, is vitiated by its failure to consider the 
admissions of D.W.I and the relevant documentary 
evidence, which establish that there was a sub~division 
of S.No.35/5L the suit site is S.No.35/5, CI Ex.A.I bein~ a 
Government poramboke land and the site of the 
defendant classified as a "Darga Burial Ground Mosque"; · 
each distinct and different from the other? Admissions 
of D.W.1:-
20 Whether the Court below have failed to see that Ex.A.2 
(Gift deed being a thirty year old document, the 
presumpt;o1;
•111.-1.,p ~ection 90 of Evidence Act applies, 
both with regard _to execution agd attestation, and as 
such the opinion of the trial Court that it is suspicious. 
· document, is untenable and unsustainable in law? 
. 
3) Whether the lower appellate Court erred iiI law in not 
framing proper points for_consideration, on t~e v~lidity. 
of~.A.2 gift deed and the sub-division of suit property 
S.No.35/5 ClAl, aSrrequired under Order 41 Rule 31 
C.P.C. and as such the Judgment ofthe.Jower appellate 
Courl ;:;s" final Court of fact is vitiated by errors of law? 
4) Whether the lower appellate Court has erred in -law, 
in holding that Ex.A2 gift deed is invalid, because the 
property gifted is poramboke, when the Government itself 
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(second defendant) has not disputed either the long 
possession or possessory title of the plaintiff of the 
suit property? 
5) Whether the lower appellate Court has erred in 
law on the question of title, merely by adverting to 
Ex.A.3, Ex.A.4, Ex.A.5 - tax receipts, and the entire 
reasoning is based on mere guess work ignoring the 
relevant and clinching documentary evidence? 
6) Whether the finding of the lower ?ppellate Court 
that P.W.6 (plaintiff's son) did not vacate the site even 
after the lease period of the site S.No.35/5 C1A19 of 
D.I is not based on any evidence except the word of 
D.W.2 (no witnesses wee examined) and the 
conclusion reached by itthat the suit site in O.S.No.53/ 
93 and the leased site are the same, is contrary to the 
evidence on record?. 
· 
7) Whether the-lower appellate Court has erred in 
law in its failure to consider the admission of D.W.2 
himself that his father encroached into the plaintiff's 
site and was issued B-Memos and· paid the penalty, 
which conclusively establishes that the two sites are 
different and not one and the same? 
8) Whether the very approach of the lower appellate 
Court is essentially erroneous and its findings are 
liable to be set aside (AIR 1992 S.C., 1604)? 
27. In our considered opinion, the aforementioned questions cannot 
be regarded as satisfying the test of being a "substi\:\1tial questions of 
law" within the meaning of Section 100
ofCPC. Th~se questions, in our 
view, are essentially questions of fact. In any event, the second appeal 
did not involve any substantial questions of law as contemplated under 
Section I 00 ofCPC and lastly no case was wade out by the respondents · 
before the High Court for remanding of the case to the trial court for de 
nova trial in all the civil suits.,This we say for following reasons. 
' 
. 28. Firstly, when the trial court and the first appellate court on 
·'appreciation of evidence concurr~ntly held in three civil suits filed by the 
respondents that they failed to prove their title. over the suit-land and 
further in two civil suits filed by the appellants that they were able to 
establish their relationship of landlord and tenant in relation to the suit-
SYEDA RAHIMUNNISA v. MALAN Bl (DEAD) BY L.RS. & 
527 
ANR. ETC. [ABHAY MANOHAR SAPRE, J.] 
land, such findings, in our opinion, were binding on the High Court being 
A 
concurrent in nature. 
29. Secondly, none of the findings of the two courts below were 
perverse to the extent that no judicial person could ever come to such 
conclusion and that these findings were not in conflict with any provision 
oflaw governing the issue and that the findings were also not against the 
pleadings or evidence. Jn this view of the matter, in our view, these 
findings were not capable of being set aside by the High Court in exercise 
of its second appellate jurisdiction under Section 100 CPC; rather they 
were binding on the High Court. 
-
30. Thirdly, apart from what is held above, the questions formulated 
were neither debatable nor arguable and nor did they involve any question 
oflaw which could be said to arise in the case. In other words, sine qua 
non for admitting the second appeal was existence of "substan!J!ll 
'question of law in the case" and therefore unless the questions framed 
were debatable, or/and arguable or/and involving any legal question, the 
High Court had no jurisdiction to formulate such questions treatingthem 
to be substantial question of law. Indeed the High Court had the 
jurisdiction under sub-Section (5) of Section 100 ofCPC to examine at 
the time of hearing as to whether the questions framed were substantial 
questions of law or not and whether they arose
out of the case, but the 
High Court failed to do so. 
31. Fourthly, having formulated the questions (though wrongly), 
the High Court went on to discuss all the issues in 59 pages as if it was 
hearing first appeals and instead of answering the questions, set aside 
the judgment/decree of the two courts below and proceeded to remand 
·the cases to the trial court for de novo trial in all civil suits. In our 
opinion, the High Court had no jurisdiction to remand the case to the trial 
court inasmuch as no party to the appeal had even raised this ground 
before the first appellate court or/and the High Court as to why the 
remand of the case to the trial Court is called for and nor there was any 
finding recorded 0\1 this question by the first appellate court. 
32. We also fi;d that no party to the appeals complained at any 
stage of the proceedings that the trial in the suits was unsatisfactory 
which caused prejudice to them requiring remand of the cases to the 
trial court to enable them to lead additional evidence. In any event, we 
find that the High Court also did not frame any substantial question of 
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law on the-question as to whether any case for remand of the case to 
the trial court h'ls.been made out and if so on what grounps? 
33. Section 100 empowers the High court to decide the second 
appeal-only on the.questions framed. In other words, the jurisdiction of 
High Curt to decide the second appeal ,is confined only to questions 
B 
framed. When the High Court did not frame any question on the question 
of remand, to the trial court a fortiori it had no jurisdiction to deal with 
such question much less to answer in respondent's favour. 
34. The High Court, in our view, further failed to see that ifthe 
first appellate court could decide the appeal on merits without there 
c 
being any objection raised for remanding of the case to the·trial court, 
we are unable to appreciate as to why the High Court could not decide 
the appeal on merits and instead raised the issue of remand of its own 
a1id passed the order to that effect. 
D 
E 
F 
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· 35. It is a settled principle oflaw that in order to claim remand of 
the case t{) the trial court, it is necessary for the appellantto first raise 
such plea and then make out a case of remand on facts. The power of 
the appellate court to remand the case to subordinate court is contained 
in order XL! Rule 23, 23.-A and 25 ofCPC. It is, therefore, obligatory 
upon the appellant to bring the case under any of these provisions before 
claiming a remand. The appellate court is
required to record reasons as 
to why it has taken recourse to any one out of the three Rules of Order 
XL! ofCPC for remanding the case to the trial court. In the absence of 
any ground taken by the respondents (appellants before the first appellate 
court and High Court) before the first appellate court and the High Court 
as to why the remand order in these cases is called for and if so under 
which Rule of Order XL! of CPC and further in the absence of any 
finding, there was no justification on the part of the High Court to remand 
the case to the trial court. The High Court instead should have decided 
the appeals on merits. We, however, do not consider proper to remand 
the case to Higj1 Court for deciding the appeals on merits and instead 
examine the merits of the case in these appeals. 
36. We, however, find no error in the judgment of the first appellate 
court, wlJich in our view rightly upheld the judgment and decree ofthe 
trial -court. 
...--;--
3 7. Indeed, it is clear from mere reading of the pleadings. The 
main case set up by the respondents for claiming title over the suit-land
SYEDA RAHIMUNNISA v. MALAN BI (DEAD) BY L.RS. & 
529 
ANR. ETC. [ABHAY MANOHAR SAPRE, J.] 
was founded only on the pleaofadverse possession against the State. In 
A 
other words, the respondents' case was that they acquired title over the 
suit-land on the strength of their adverse possession in the suit-land through 
their predecessors who were in continuous possession over the suit-land 
for the last 100 years qua state. The respondents did not claim title on 
the strength of any .grant or Lease Deed or Patta etc. issued by the B 
State in their favour. 
38. The only question which, therefore, arose for consideration 
before the courts below was whether the respondents were able to 
establish their adverse possession over the suit-land as against the State 
so as to entitle them to claim title in their favour over the suit-land. 
c 
39. The respondents having set up this plea were required to prove 
it with the aid of satisfactory evidence as the burden of proof lay on 
them being the plaintiffs. As observed (supra), both the courts held on 
appreciation of evidenc.~ that the respondents were failed to establish 
their adverse possession over the suit-land qua State for want of adequate D 
evidence. It being a question of fact, a finding on this question was 
binding on the High Court unless any error of law in such finding had 
been pointed out. It was not so pointed out. 
40. We also find that the High Court had framed one question on E 
the validity of one gift. This
question in our view was of no significance 
· for deciding the main question involved in this case. It is for the reason 
that the dispute in this case was between the respondents on the one 
hand and the State on the other relating to the title which was claimed by 
the respondents on the basis of their adverse possession and to decide 
this question, execution of gift inter se two members of respondents' 
F 
family was of no relevance. 
41. In these circumstances, the alleged gift whether executed 
between the two members of respondents' family or not and if so whether 
it was valid or not, did not arise out of the case. It is apart from the fact 
that it did not GOnstitute any substantial question oflaw within the meaning G · 
of Section 100 ofCPC. 
42. In the light of-foregoing discussion, we are of the consider.ed 
opinion that the reasoning and the conclusion arrived at by the High 
Court is not legally sustainable and is accordingly liable to be set aside. 
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43. As a consequence, these appeals succeed and are hereby 
allowed~ The impugned judgment is set aside. and the judgment/decree 
of the first appellate court and that of the trial court are hereby restored. 
. 
. 
. 
44. The respondent no.I to pay costs quantified at Rs. I 0,000/- to· 
the appellants. 
-·~ 
Kalpana K. Tripathy 
Appeals allowed.