SMT. RAM SAKHI DEVI

CHHA TRA DEVI AND ORS.

JUL y 12, 2005

[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appeal-Judgment of High Court without framing substantial question of law-Held, not C sustainable.

The question which arose for consideration in the present appeal is whether judgment rendered by the High Court in second appeal without framing a substantial question oflaw as required by S.100 CPC is sustainable.

Remitting back the matter to the High Court, the Court

HELD: Sub-section (3) of Section 100 CPC requires the memorandum of appeal to precisely state substantial question or questions of law involved in the appeal. Where the High Court is satisfied that in any case any substantial questicm of law is involved it shall formulate that question under E sub-section (4) and-the second appeal has to be heard onthe question so formulated as stated in sub-section (5) of Se_ctton 100. The judgment passed by the High Court does not show that any substantial question of law has been formulated or. tat the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.

[545-H; 546-A, G].

Jshwar Dass Jain v. Sohan Lal, [2000) 1 SCC 434; Roop Singh(Dead) Through LRs. v. Ram Singh (Dead)Through LRs., (2000] 3 SCC 708; Kanhaiyalal and Ors. v. Anupkumar and Ors., JT (2002) 10 SC 98; R. Lakshmi Narayan v. Santhi, [2001) 4 SCC 688; MS V Raja and Anr. v. Seeni Thevar and Ors., [2001) 6 SCC 652; R. VE. Venkatachala Gounder v. Arulmigu G Viswesaraswami and VP. Temple and Anr., [2003) 8 SCC 752; Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and Ors., [2004) 1 SCC 271; C~dat Singh v. Bahadur Ram and Ors:, JT [2004) 6 SC 296; Kishori Lal and Anr. v.

Madan Gopal(d) by Lrs. and Ors., JT (2094) 8 SC 422 and Mathakala Krishnaiah v. V Rajagopal, [2004) 10 SCC 676, relied on.

H 544

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3608 of2005. ' A

From the Judgment and Order dated 31.10.2002 of the Patna High Coui:t in S.A.No. 244 of 1988.

D.K. Thakur and Debasis Misra for the Appellant.

Krishna Prasad, Sanjay R. Hegde, S.K. Verma and N.S. Bisht for te Respondents. ·

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Leave granted.

Appellant calls in question legality of the judgment rendered by j a learned Single Judge of the Patna High Court in Second Appeal in ten11s of Section I 00 of the code of Civil Procedure, 1908 in short the 'code'. Te respondents are the legal heirs of the original plaintiff - lshraj Narayan Singh.

The original plaintiff filed a suit seeking declaration of his title over the sit D 'land and declaration of want of title of Smt. Ram Sakhi Devi, the appellant

herein, the defendant No. 3 in the suit. The trial court had decreed the suit but in appeal the First Appellate Court reversed it. The respondents filed he second appeal before the Patna High Court. By the impugned judgment the

I High Court restored the judgment and decree of the trial court and set aside E the judgment and decree of the First Appellate Court.

Though many points were urged in support of the appeal, the pivtal plea was that the High Court could not have interfered with the judgment and

I dcree of the First Appellate court without framing a substantial question of law as enjo!!l_t:d by Section 100 of the Code. The High Court can dnly F exercise its jurisdiction under Section 100 of the code in Second Appeal

1 on the basis of substantial question of law framed at the time of admitting appeal

A Second Appeal can be heard and decided only on the basis of substantial question of law , if any. The judgment rendered by the High Court in Secpnd appeal without following the aforesaid procedure is not sustainable in law.

Learned counsel for the respondents on the other hand submitted

1that the question of law is self evident and on a technical plea that a question of law has not been framed, the well reasoned judgment should not be set aside.

I As mandated by sub-section 3 of Section 100 of the Code,: the

memorandum of appeal shall precisely state substantial question or questions H

A of law involved in the appeal. Where the High Court is satisfied that in any case any substantial question of law is involved it shall fonnulate 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.

Section 100 of the Code deals with "Section Appeal". The provision B reads as follows:

"Section 100 - ( 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, ifthe 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 substanteal question of law is invol 1ed in the appeal.

(4) Where the High Court is satisfied that a substanteal question of law is involved in any case , it shall formulate that question.

(5) The appeal shall be heard on the question so fonnulated an4 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 F recorded, the appeal on any other substantial question of law, not fonnulated by it, if it is satisfied that the case involves such question."

A perusal of the impugned judgment passed by the 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. That G being so, the judgment cannot be maintained.

In lshwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434 this Court in para 10, has stated thus:

"10. Now under Section 100 CPC, after the 1976 Amendment, it is H essential for the High Court to fonnulate a substantial question of law

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and it is not permissible to reverse the judgment of the first appellate A .

Court without doing so."

Yet again in Roop Singh (Dead) Through LRS. v. Ram Singh (dead) Through Lrs., [2000] 3 SCC 703, 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: B

"7. It is to be reiterated that under section l 00 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 of the High Court to interfere with pure questions of fact while interfere with pure questions of fact while exercising its C jurisdiction under section l 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 c.ourts after appreciating the evidence held that the defendant D entered into the possession of the premises as a batai, that is to say, as. a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. There 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, It the defendant E got the possession of suit land as a lessee or under a batai agreement then from the permissive 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 permissive possession into F adverse possession Thakur Kishan Singh v. Arvind Kumar, [1994] 6

SCC 591. Hence the High Court ought not to have interfered with the findings of fact recorded by both the courts be low."

The position has been reiterated in Kanhalyalaland Ors. v. Anupkumar and Ors., JT (2002) l 0 SC 98.

Reference may also be made to R. Lakshmi Narayan v. Santhi, [2001] 4 SCC 688, MS. V. Raja and Anr. v. Seeni Thevar and Ors., [2001] 6 SCC 652, R. V.E. enkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr., [2003] 8 SCC 752, Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and Ors., (2004) 1 SCC 271, Chadat Singh v. Bahadur Ram and Ors., H

A JT (2004) 6 SC 296, Kishori Lal and Anr. v. Madan Gopal (d) by Lrs. and

On, JT (2004) 8 SC 422 and Mathakala Krishnaiah v. V Rajagopal, [2004]

10 SCC676.

In the circumstances, the impugned judgment is set aside. We remit the matter to the High Court for disposal in accordance with law. The appeal is B disposed of in the aforesaid tenns with no order as to costs.

D.G.

Appeal disposed of.