KANHAIY ALAL AND ORS.

ANUPKUMAR AND ORS.

NOVEMBER 27, 2002

[SHIVARAJ V. PATIL AND ARIJIT PASA Y AT, JJ.]

Code of Civil Procedure, 1908:

S. J 00-Second appeal-Requirement of formulating substantial question C of law-Judgment of High Court not indicating any substantial question of law to have been formulated by High Court or that appeals were heard on any substantial question of law-High Court allowing the second appeal .and reversing the concurrent findings of fact recorded by both the courts below-- Held, memorandum of a second appeal filed u/s. JOO shall precisely state the D substantial question of law involved in the case as required under sub-section (3)-Where the High Court is satisfied that any substantial quest:on of law is involved, it shall.formulate that question under sub-section (4)-Second appeal shall be heard on the question so formulated as provided in sub-section (5)- Judgments of High Court set aside_;_Matters remitted to High Court for disposal in accordance with law and keeping in view the observations made herein.

E /shwar Dass Jain v. Sohan Lal, [20001 1 SCC 434 and Roop Singh v.

Ram Singh, (2000) 3 SCC 708, relied on.

Judgment-Delay in pronouncement-In second appeals arguments heard by High Court in November 1990---Judgments pronounced on 7.5.1993- F Besides, no substantial question of law formulated by High Court-Second appeals allowed and concurrent findings of fact recorded by both the courts below reversed-Held, judgments of High Court cannot be sustained and, therefore, set aside-Matters remitted to High Court for decision afresh expeditiously-Code of Civil Procedure, 1908-s. l OD-Administration of G Justice.

Bhagwandas Fatehchand Daswani and Ors. v. HPA International and Ors., (2000) 2 SCC 13, relied on.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1622-

366 i

KANHAIYALAL v. ANUPKUMAR 367

1623 of 1994.

From the Judgment and Order dated 7.5.1993 of the Madhya Pradesh High Court in Second Appeal Nos. 709 and 710 of 1974.

A.P. Dhamija, Ms. Anjali Doshi, Ms. Ruchi Kohli and Sushi I Kumar

Jain for the Appellants.

S.K. Gambhir, R.R. Singh, Anil K. Sharma, Awnish Sinha, T.N.

Singh, W.A. Nomani and S.K. Agnihotri for the Respondents.

The following Order of the Court was delivered :

Heard the learned counsel for the parties.

The impugned judgments were passed by the High Court of Madhya Pradesh at Jabalpur in second appeals reversing the concurrent findings of

fact recorded by the trial court as well as the first appellate court. Though the High Court elaborately considered the contentions and the evidence placed D on record, the impugned judgments do not reflect or indicate as to what was the substantial question of law that arose for consideration between the parties, as required under Section I 00 of the Code of Civil Procedure.

The learned senior counsel for the respondents, in support of the impugned judgment, contended that though substantial question of law was E not specifically stated in the impugned judgment, it can be made out from the very judgment that the findings recorded by the trial court and the first appellate court were perverse and perversity itself was a substantial question of law for disturbing the findings of fact recorded by the courts below. He also added that in the High Court of Madhya Pradesh, there is a practice that F substantial question of law is separately framed at the time of admission in the order sheet. We may notice one more fact that the arguments were heard by the High Court and the appeals were reserved for judgment on 2 lst November, 1990. The High Court pronounced the impugned judgments as late as on 7th May, 1993 allowing the appeals, interfering with the findings of fact recorded by the courts below.

In a second appeal filed under Section I 00 of the Code of Civil .Procedure, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal as required under sub-section (3).

Where the High Court is satisfied that in any case a substantial question of law is involved, it shall formulate that question under sub-section ( 4). The H

SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A second appeal shall be heard on the question so formulated as stated in subsection (5).

The impugned judgments do not indicate any substantial question of law formulated and that the second appeals were heard on any substantial question of law.

This Court has taken the view in cases more than one that in second appeals, substantial question or questions of law must arise for consideration and the appeals are to be heard on the substantial questions of law so formulated.

In Jshwar Dass Jain v. Sohan Lal, (2000] I SCC 434, this Court, in para IO, has stated thus:

"IO. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so."

Yet again, in Roop Singh v. Ram Singh. (2000] 3 SCC 708, this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:

"7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section. I 00 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact-findings courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and h.is possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the

KANHAIY ALAL v. ANUPKUMAR 369

permissive possession it is for hi1n to establish by cogent and A convincing evidence to show hostile ani1nus and possession adverse to the kno\vledge of the real owner. Mere possession for a long ti1ne does not result in converting pennissive possession into adverse possession (Thakur Kishan Singh v. Arvind Kumar, (1994] 6 SCC

591. Hence, the High Court ought not to have interfered with the B findings of fact recorded by both the courts below."

(Emphasis supplied)

In the light of what is stated above, in our view, the impugned judgments cannot be sustained. Further, as stated above, the arguments were heard in November, I 990 and the High Court pronounced the judgments on 7th May, C I993. This Comt in Bhagwandas Fatechand Daswani and Ors. v. HPA International and Ors., (2000] 2 SCC 13, dealing with the contention that the long delay in delivery of judgment is sufficient to set aside the judgment under appeal without going into this broad question, set aside the judgment under appeal on the ground of delay in delivery of judgment without expressing D any opinion on the merits of the case and remitted the case to the High Comt for deciding the appeal afresh on 1nerits. While doiilg so this Court observed, "However, it is correct to this extent that a long delay in delivery of judgme.nt gives rise to unnecessary speculations in the minds of parties to a case.

Moreover, the appellants whose appeals have been dismissed by the High Court may have the apprehension that the arguments raised at the Bar have E not been reflected or appreciated while dictating the judgments - nearly after five years ............. We, therefore, on this short question, set aside the judgment under appeal." In this view also the judgments of the High Court under challenge cannot be sustained.

In the circumstances, the impugned judgments are set aside. The appeals are allowed. We remit these matters to the High Court for disposal in accordance with law, keeping in viw the observations made above.

Taking note of the fact that the suits are of the year l 972, we request

the High Court to dispose of the second appeals within a period of six months G from ihe date of receipt of the copy of this order.

R.P.

Appeals allowed.