MADAN LAL AND ANR ..

BAL KRISHAN AND ORS.

NOVEMBER 14, 2005

[ARIJIT PASA Y AT AND TARUN CHATTERJEE, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appeal-Disposal of by High Court without formulating substantial question of law-Justification C of-Held: It is essential for High Court to formulate a substantial question of law and hear the appeal on the question formulated-In absence, such judgment cannot be maintained-Matter remitted back to High Court for disposal after formulating substantial question of law.

In this appeal, the issue involved was as to whether the High Court was D justified in allowing the second appeal without formulating the substantial question of law, as mandated by Section 100 CPC.

Disposing of the appeal, the Court

HELD: 1.1. In view of Section 100 CPC, 1908, the memorandum of appeal E shall precisely state substantial questions or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section ( 4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section

100 CPC. (737-F, G) F 1.2. In the instant case, a perusal of the impugned judgment passed by High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated and as such the judgment cannot be maintained. The matters are G remitted back to High Court for disposal after formulating the substantial question of law, if any and in accordance with law. (738-E; 739-F)

Jshwar Dass Jain v. Sohan Lal, (2000) l SCC 434; Roop Singh v. Ram Singh, (2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT

(2002) 10 SC 98; Prembai v. Jhaneshwar Ramakrishna Patange and Ors.,

MADAN LAL v. BAL KRIS HAN [PASA YAT, J.] 737

(2003) AIR SCW 2922; Chadat Singh v. Bahadur Rama and Ors. JT 12004) A 6 SCC 296 and Mathakala Krishnaiah v. V. Rajagopal, JT 12004) 9 SCC 205, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 918 of2000.

From the Judgment and Order dated 2.9.98 of the Himachal Pradesh B High Court at Shimla in R.S.A. No. 273 of 1992.

Gopal Balwant Sathe for the Appellants.

Ramesh Babu M.R. for the Respondents. c The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Himachal Pradesh High Court in a Second Appeal preferred under Section I 00 of the Code of Civil Procedure, 1908 (in short the 'Code). By the impugned judgment the learned Single Judge set D aside the judgments and decrees of the courts below and decreed the suit of the plaintiffs for declaration of title and injunction as prayed for. Though several points were urged in support of the appeal it was basically contended that findings of fact recorded by the two courts were set aside even without formulating question of law muchless a substantial question of law.

Learned counsel for the respondents on the other hand submitted that though specifically the questions of law were not formulated, the High Court has rightly taken note of the legal position as applicable to the factual background and has allowed the appeal.

In view of Section I 00 of the Code the memorandum of appeal shall F precisely state substantial question or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section G

100.

Section I 00 of the Code deals with "Second Appeal". The provision reads as follows:

"Section 100- (I) Save as otherwise expressly provided in the body H

SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 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 B 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 c 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."

A perusal of the impugned judgment passed by the High Court does E not show that any substantial question of law has been formulated or that

' the second appeal was heard on the question, if any, so formulated. That ;

being so, the judgment cannot be maintained.

In Ishwar Dass Jain v. Sohan Lal, [2000] I SCC 434) this Court in para ,_ 10, has stated thus: ' - F "10. 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

I t Court without doing so."

G 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 I 00 CPC jurisdiction of the ..

High Court to entertain a second appeal is confined only to such H appeals which involve a substantial question of law and it does not

MADAN LAL v. BAL KRISHAN [PASA YAT, J.] 739

confer any jurisdiction on the High Court to interfere with pure A questions of fact while exercising its jurisdiction under section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law fonnulated by it at the time of admission of the second appeal a~ there is no reference of it in the impugned judgment. Further, the fact findings courts after appreciating the evidence held that the defendant entered ito the possession of B the premises as a batai, that is to say, as a tenant and his possession was pennissive 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 C in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the pennissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting pennissive possession into adverse possession (Thakur Kishan Singh D

v. Arvind Kumar, [1994] 6 sq: 591). Hence the High Court ought not to have interfered with the findings of fact recorded by both the courts below."

The position has been reiterated in Kanahaiyalal and Ors. v. E Anupkumar and Ors., JT (2002) 10 SC 98, Premabai v. Jnaneshwar Ramakrishna Patange and Ors., (2003) AIR SCW 2922, Chadat Singh v.

Bahadur Rama and Ors., JT [2004] 6 SCC 296 and Mathakala Krishnaiah v.

V. Rajagopal, JT [2004] 9 SCC 205.

In the circumstances, the impugned judgment is set aside. We remit the F matter to the High Court for disposal after formulating the substantial question of law, if any, and in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.

N.J.

Appeal disposed of.