NARAYANA GRAMANI & ORS. versus MARIAMMAL & ORS.
[2018] 9 S.C.R. 430, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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  [2018] 9 S.C.R. 430
       430
NARAYANA GRAMANI & ORS.
v.
MARIAMMAL & ORS.
(Civil Appeal No. 5057 of 2009)
SEPTEMBER 11, 2018
[ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]
Code of Civil Procedure, 1908: s. 100 – Second appeal –
Power of the High Court while deciding the second appeal – Scope
and ambit of – On facts, in second appeal, the High Court allowed
the defendants’ appeal and set aside the plaintiffs’ suit which was
decreed by the courts below – On appeal, held: Order passed by
the High Court not legally sustainable – High Court admitted the
second appeal by framing only one substantial question of law,
that whether the first appellate court was justified in dismissing the
defendants’ first appeal by taking into consideration one earlier
litigation in relation to the suit land, which was not between the
same parties – High Court failed to see that even if the said question
was answered in defendants’ favour, yet the plaintiffs’ suit could
not have been dismissed unless the High Court had further examined
the main issue of ownership of the plaintiff over the suit land, which
was decided by the courts below in plaintiffs’ favour – High Court
having failed to frame any substantial question of law on the issue
of the plaintiffs’ ownership over the suit land, had no jurisdiction
to examine the said issue in its second appellate jurisdiction, in the
light of s. 100(5) – Further, the High Court cursorily touched the
ownership issue which, could not be done – Also both the issue of
res judicata and ownership had to be examined independent of each
other on their respective merits, which was not done –  Thus, matter
remanded to the High Court.
Allowing the appeal, the Court
HELD: 1.1 Keeping in view the scope and ambit of the
powers of the High Court while deciding the second appeal, the
High Court committed an error in allowing the defendants’ second
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appeal and further erred in dismissing the plaintiffs’ suit by
answering the substantial question of law. [Para 17][437-F-G]
1.2  Mere perusal of the impugned order would go to show
that the High Court had admitted the second appeal by framing
only one substantial question of law, namely, whether the first
Appellate Court was justified in dismissing the defendants’ first
appeal by taking into consideration one earlier litigation in relation
to the suit land, which was not between the same parties. The
High Court held that the first Appellate Court was not justified
because the earlier litigation was not between the present plaintiffs
and the defendants but it was between the different parties and,
therefore, any decision rendered in such litigation would not
operate as res judicata in the present litigation between the
parties. This resulted in allowing of the appeal and dismissing
the suit. The High Court (Single Judge), failed to see that even if
the said question was answered in defendants’ favour, yet the
plaintiffs’ suit could not have been dismissed much less in its
entirety unless the High Court had further examined the main
issue of ownership of the plaintiffs over the suit land, which was
decided by the two Courts below in plaintiffs’ favour on merits.
[Para 18-20] [431-H; 438-A-C]
1.3  It was necessary for the High Court to have proceeded
to examine the issue relating to the plaintiffs’ title over the suit
land, which was decided by the two
Courts in plaintiffs’ favour
holding that the plaintiffs were able to prove their title over the
suit land on the basis of documentary evidence whereas the
defendants failed to prove their title though asserted.
[Para 21] [438-D-E]
1.4  The High Court committed another error when it failed
to frame any substantial question of law on the issue of the
plaintiffs’ ownership over the suit land. So long as no substantial
question of law was framed, the High Court had no jurisdiction to
examine the said issue in its second appellate jurisdiction. In
other words, the High Court having framed only one question,
which did not pertain to issue of ownership of the suit land, had
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no jurisdiction to examine the issue of ownership. It was not
permissible in the light of Section 100 (5) CPC, which empowers
the High Court to decide the appeal only on the question framed
and not beyond it. [Para 22-23] [438-F-H]
1.5 The High Court could invoke its powers under proviso
to sub-section (5) of Section 100 and frame one or two additional
questions, as the case may be, even at the time of hearing of the
second appeal. It would have enabled the High Court to examine
the issue of ownership of the suit land in its correct perspective.
It was, however, not done by the High Court. [Para 24]
[439-A-B]
1.6 The High Court, while examining the question framed,
also cursorily touched the ownership issue which, the High Court
could not have done for want of framing of any substantial question
of law on the ownership issue. That apart, the High Court also
failed to see that the issue of res judicata and the issue of
ownership were independent issues and the decision on one would
not have answered the other one. In other words, both the issues
had to be examined independent of each other on their respective
merits. It was, however, possible only after framing of substantial
questions on both the issues as provided under Section 100(4)
and (5) CPC. This was, however, not done in this case.
[Para 25] [439-B-D]
1.7 Since the High Court failed to examine the issue of
ownership of the plaintiffs on its merits for want of
framing of the
substantial question(s) of law, the matter has to be remanded to
the High Court for deciding the question as to whether two Courts
below were right in their respective jurisdiction in holding that
the plaintiffs were able to prove their title over the suit land on
the basis of evidence (oral/documentary) adduced by them and, if
so, whether such finding should be upheld or not.
[Para 27] [439-E-F]
1.8 The impugned order is not legally sustainable and is
set aside. The case is remanded to the High Court for deciding
the second appeal afresh on merits in accordance with law by
properly framing the substantial question(s) of law on the question
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of ownership of the plaintiffs over the suit land and examine as to
whether the findings on the said question recorded by two Courts
suffer from any error or not. [Para 28] [439-G-H]
Sanatosh Hazari v. Purushottam Tiwari (2001) 3 SCC
179 : [2001] 1 SCR 948 ; Surat Singh v. Siri Bhagwan
& Ors. (2018) 4 SCC 562 – referred to.
           Case Law Reference
[2001] 1 SCR 948
referred to
     Para 16
(2018) 4 SCC 562
referred to
     Para 16
  CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5057
of 2009.
From the Judgment and Order dated 09.07.2007 of the High Court
of  Judicature at Madras in Second Appeal No. 632 of 1995.
MSM Asaithambi, V. Balaji, Rakesh K. Sharma, C. Kannan,
Ms. Sripradha Krishnan, A.T.M. Sampath, Advs. for the Appellants.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
plaintiffs against the final judgment and order dated 09.07.2007 passed
by the High Court of Judicature at Madras in Second Appeal No.652 of
1995 whereby the Single Judge of the High Court allowed the second
appeal filed by defendant Nos.2 to 5 and set aside the judgment and
decree dated 05.08.1994 passed by the Additional Subordinate Judge,
Chingalpattu in A.S. No.72 of 1993 and dismissed the suit filed by the
appellants herein.
2. In order to appreciate the issues involved in the appeal, which
lie in a narrow compass, few facts need mention hereinbelow.
3. Appellant Nos. 1 and 2 are the plaintiffs whereas appellant
No. 3 is
the legal representative of third plaintiff-Thirunavukkarasu, who
died pending litigation. The respondents are defendants in the civil suit.
NARAYANA GRAMANI & ORS. v. MARIAMMAL & ORS.
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4. The three plaintiffs claiming to be the members of one family
filed a civil suit against the defendants for a declaration and permanent
injunction in relation to the land situated at No. 294/1 Vembanur Village,
Kadapakkam Firka, (patta No. 491), Old Paimash No. 201/8 renumbered
as S. No 399/4, Acs. 1.08 (hereinafter referred to as “suit land”).
5. The plaintiffs traced the title to the suit land through their
predecessor-in-title coupled with Patta issued by the Estate Manager in
relation to the suit land. According to the plaintiffs, there had been a
family partition inter se the plaintiffs wherein the suit land fell to their
share. The plaintiffs alleged that they have been in possession of the suit
land, invested money and paying revenue taxes. The plaintiffs alleged
that the defendants are trying to disturb their possession over the suit
land without any legal authority and are also asserting their title over the
suit land, which they do not have in their favour and hence there arise a
need to file the civil suit and claim declaration and permanent injunction
in relation to the suit land.
6. The defendants filed their written statement and denied the
plaintiffs’ claim over the suit land. According to them,  they are the
owners of the suit land having purchased the same vide sale deed dated
15.02.1967 for Rs.200/- from one Muthu Mudaliar and his son Rajaram
Mudaliar who, according to the defendants, were the
owners of the suit
land. Defendant No. 1 also claimed to be in possession of the suit land
and cultivating the same.
7. The Trial Court framed two issues, viz., (1) Whether the
plaintiffs are entitled for seeking declaration and permanent injunction;
and (2) If so, for what reliefs.  Parties adduced their evidence (oral and
documentary). By Judgment and decree dated 23.11.1993, the Trial Court
decreed the plaintiffs’ suit. It was held that the plaintiffs are able to
prove their ownership over the suit land on the basis of the documents
filed by them; that the plaintiffs are in possession of the suit land; that
they are, therefore, entitled to claim a declaration of their title over the
suit land as its owners so also are entitled to claim permanent injunction
against the defendants restraining them from interfering in their
(plaintiffs’) peaceful possession over the suit land.
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8.  The defendants felt aggrieved and filed first appeal before the
Additional Sub-Judge (Appeal Suit No. 72/1993). By Judgment dated
05.08.1994, the Appellate Court dismissed the defendants’ appeal and
affirmed the judgment and decree passed by the Trial Court.
9. The defendants pursued the matter further and filed second
appeal in the High Court at Madras. The High Court admitted the second
appeal on the following substantial question of law:
       “Whether the same judge can dismiss an appeal on
the ground that he has already rejected the appellants’ case
in an earlier appeal against different parties in the absence
of pleadings of rejudicata or estoppel by judgment by neither
of the parties, especially when the issue is pending for
decision before the High Court by way of second appeal.”
10. By impugned judgment, the High Court allowed the appeal
and set aside the judgment and decree of the two courts below and, in
consequence, dismissed the suit giving rise to filing of the present appeal
by way of special leave in this Court by the plaintiffs.
11. The short question, which arises for consideration in this appeal,
is whether the High Court was justified in allowing the defendants’ appeal
and, in consequence, dismissing the plaintiffs’ suit which was decreed
by the two Courts below.
12. Mr. MSM Asaithambi, learned counsel appeared for the
appellants. Despite notice, none appeared for the respondents.
13. Having heard the learned counsel for the
appellants and on
perusal of the record of the case, we are inclined to allow the appeal and
while setting aside the impugned judgment remand the case to the High
Court for deciding the appeal afresh on merits in accordance with law
after framing appropriate substantial question of law as indicated below.
14. Before we examine the facts of the case, it is necessary to
see the scope of Section 100 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”), which empowers the High Court
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[ABHAY MANOHAR SAPRE, J.]
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to decide the second appeals.  Indeed, it is explained in several decisions
of this Court and thus remains no more res integra.
15.  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 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 formulated by it, if it is satisfied that the
case involves such question.”
16. Sub-section (1) of Section 100 says that the second appeal
would be entertained by the High Court only if the High
Court is “satisfied”
that the case involves a “substantial question of law”. Sub- section (3)
makes it obligatory upon the appellant to precisely state in memo of
appeal the “substantial question of law” involved in the appeal. Sub-
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section (4) provides that where the High Court is satisfied that any
substantial question of law is involved in the case, it shall formulate that
question. In other words, once the High Court is satisfied after hearing
the appellant or his counsel, as the case may be, that the appeal involves
a substantial question of law, it has to formulate that question and then
direct issuance of notice to the respondent of the memo of appeal along
with the question of law framed by the High Court. Sub-section (5)
provides that the appeal shall be heard only on the question formulated
by the High Court under sub-section (4). In other words, the jurisdiction
of the High Court to decide the second appeal is confined only to the
question framed by the High Court under sub-section(4).  The respondent,
however, at the time of hearing of the appeal is given a right under sub-
section (5) to raise an objection that the question framed by the High
Court under sub-section (4) does not involve in the appeal. The reason
for giving this right to the respondent for raising such objection at the
time of hearing is because the High Court frames the question at the
admission stage which is prior to issuance of the notice of appeal to the
respondent.  In other words, the question is framed behind the back of
respondent and, therefore, sub-section(5) enables him  to raise such
objection at the time of hearing that the question framed does not arise
in the appeal.  The proviso to
sub-section (5), however, also recognizes
the power of the High Court to hear the appeal on any other substantial
question of law which was not initially framed by the High Court under
sub-section (4).  However, this power can be exercised by the High
Court only after assigning the reasons for framing such additional question
of law at the time of hearing of the appeal. (See Sanatosh Hazari vs.
Purushottam Tiwari [(2001) 3 SCC 179] and Surat Singh vs. Siri
Bhagwan & Ors. [(2018) 4 SCC 562]
17. Keeping in view the scope and ambit of the powers of the
High Court while deciding the second appeal when we advert to the
facts of the case, we find that the High Court committed an error in
allowing the defendants’ second appeal and further erred in dismissing
the plaintiffs’ suit by answering the substantial question of law. This we
say for more than one reason.
18.  First, mere perusal of the impugned order would go to show
that the High Court had admitted the second appeal by framing only one
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substantial question of law, namely, whether the first Appellate Court
was justified in dismissing the defendants’ first appeal by taking into
consideration one earlier litigation in relation to the suit land, which was
not between the same parties.
19. The High Court held that the first Appellate Court was not
justified because the earlier litigation was not between the present
plaintiffs and the defendants but it was between the different parties
and, therefore, any decision rendered in such litigation would not operate
as res judicata in the present litigation between the parties.  This resulted
in allowing of the appeal and dismissing the suit.
20. The High Court (Single Judge), in our opinion,   failed to see
that even if the said question was answered in defendants’ favour, yet
the plaintiffs’ suit could not have been dismissed much less in its entirety
unless the High Court had further examined the main issue of ownership
of the plaintiffs over the suit land, which was decided by the two Courts
below in plaintiffs’ favour on merits.
21. In other words, we are of the view that it was necessary for
the High Court to have proceeded to examine the issue relating to the
plaintiffs’ title over the suit land, which was decided by the two Courts in
plaintiffs’ favour holding that the plaintiffs were able to prove their title
over the suit land on the basis of documentary evidence whereas the
defendants failed to prove
their title though asserted.
22. Second, the High Court committed another error when it failed
to frame any substantial question of law on the issue of the plaintiffs’
ownership over the suit land.
23. So long as no substantial question of law was framed, the
High Court had no jurisdiction to examine the said issue in its second
appellate jurisdiction. In other words, the High Court having framed only
one question, which did not pertain to issue of ownership of the suit land,
had no jurisdiction to examine the issue of ownership. It was not
permissible in the light of Section 100 (5) of the Code, which empowers
the High Court to decide the appeal only on the question framed and not
beyond it.
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24. Third, the High Court could invoke its powers under proviso
to sub-section (5) of Section 100 and frame one or two additional
questions, as the case may be, even at the time of hearing of the second
appeal.  It would have enabled the High Court to examine the issue of
ownership of the suit land in its correct perspective. It was, however,
not done by the High Court.
25. Fourth, the High Court, while examining the question framed,
also cursorily touched the ownership issue which, in our opinion, the
High Court could not have done for want of framing of any substantial
question of law on the ownership issue. That apart, the High Court also
failed to see that the issue of res judicata and the issue of ownership
were independent issues and the decision on one would not have
answered the other one. In other words, both the issues had to be
examined independent of each other on their respective merits. It was,
however, possible only after framing of substantial questions on both the
issues as provided under Section 100(4) and (5) of the Code. This was,
however, not done in this case.
26. In the light of aforementioned four reasons, we are of the
considered opinion that the impugned judgment is not legally sustainable
and, therefore, it has to be set aside.
27. Since the High Court failed to examine the issue of ownership
of the plaintiffs on its merits for want of framing of the substantial
question(s) of law, the matter has to be remanded to the High Court
for
deciding the question as to whether two Courts below were right in their
respective jurisdiction in holding that the plaintiffs were able to prove
their title over the suit land on the basis of evidence (oral/documentary)
adduced by them and, if so, whether such finding should be upheld or
not.
28. In view of the foregoing discussion, the appeal succeeds and
is allowed. Impugned order is set aside. The case is remanded to the
High Court for deciding the second appeal afresh on merits in accordance
with law by properly framing the substantial question(s) of law on the
question of ownership of the plaintiffs over the suit land and then to
examine as to whether the findings on the said question recorded by two
Courts suffer from any error(s) or not.
NARAYANA GRAMANI & ORS. v. MARIAMMAL & ORS.
[ABHAY MANOHAR SAPRE, J.]

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29. We, however, make it clear that we have not applied our mind
on the merits of the controversy having formed an opinion to remand the
case to the High Court for deciding the appeal afresh as observed above
and, therefore, the High Court will decide the appeal strictly in accordance
with law uninfluenced by any of our observations.
30. Since the matter is quite old, we request the High Court to
decide the appeal as expeditiously as possible preferably within 6 months
from the date of this judgment.
Nidhi Jain
                                Appeal allowed.