SHAH MANSUKHLAL CHHAGANLAL (D) THROUGH LRS.

A v.

GOHIL AMARSING GOVINDBHAI (D) THROUGH LRS.

DECEMBER 5, 2006

[DR. ARIJIT PASAYA T AND S.H. KAPADIA, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appeal- Maintain'!bility of. when substantial question of law not formulated-Held: Not maintainable.

Words and Phrases-Expression 'on any other substantial question of law'-Meaning of-In the context of S. I 00(5J of Code of Civil Procedure, 1908.

The question for consideration in the present appeal is whether High D Court was justified in allowing the second appeal filed in terms of Section 100 of the Code of Civil Procedure, 1908.

Disposing of the appeal and remitting the matter to High-Court, the Court

HELD: 1. A perusal of the impugned judgment passed by the High E 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 being so, the judgment cannot be maintained. [137-C-D]

Ishwar Dass Jain v. Sohan Lal [2000) 1 SCC 434; Roop Singh v. Ram F Singh, [2000) 3 SCC 708; Kanhaiyalal v. Anupkumar, [2003) l SCC 430; Chadat Singh v. Bahadur Ram and Ors., [2004] 6 SCC 359; Joseph Severane and Ors. v. Benny Mathew and Ors., [2005] 7 SCC 667; Sasikumar and Ors.

v. Kunnath Chellappan Nair and Ors., [2005) 12 SCC 588; Jawala Singh (DJ by Lrs. v. Jagat Singh (DJ by Lrs., JT (2006) 8 SC 483 and C.A. Sulaiman & Ors. v. State Bank of Travancore, Alwayee and Ors., [2006] 6 SCC 392, G relied on.

2. The proviso to Sub-section (5) of Section 100 is applicable only when any substantial question of law has already been formulated and it

135 H

A empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier cari be taken up by the High Court for B reasons to be recorded, if it is of the view that the case involves such question.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5614 of2006.

From the final Judgment and Order dated 29.8.2002 of the High Court of Gujarat at Ahmedabad in S.A. No. 491 of 1978.

C A. Raghunath for the Appellant.

Rameshwar Prasad Goyal for the Respondents.

The Judgment of the Court was delivered by

D Dr. ARIJIT PASAYAT, J. Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Gujarat High Court. Second appeal filed by the respondents in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code') was allowed. Though various questions were raised in support of the E appeal, it was primarily highlighted that the econd Appeal was allowed without formulating any substantial.quesion of law.

There is no appearance on behalf of respondents when the matter is called though learned counsel had entered appearance.

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

"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, 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.

- SHAH MANSUKJILAL CHHAGANLAL (0) 111ROUGH LRS. v. GOHIL AMARSING GOVINDBHAI (0) 111ROUGH LRS. If ASAY AT. J. ( 13 7

(3) In an appeal under this section, the memorandum of appeal shall A 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 B 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 c 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 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] 1 SCC 434, this Court in para l 0 has stated thus:

"10. Now under Section 100 CPC, after the 1976 amendinent, it is essential for the High Court to formulate a substantial question of law E 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: F

"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 l 00 G 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 finding courts after appreciating the evidence held that the defendant entered into the H ...

possession of 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 in those findings. If the defendant 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 Page 1532 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 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 below."

The position has been reiterated in Kanhaiya/al v. Anupkumar, [2003) 1 sec 430.

In Chadat Singh v. Bahadur Ram and Ors., [2004) 6 SCC 359, it was observed thus:

"6. In view of Section I 00 of the Code the memorandum of appeal shall precisely state substantial question or questions involved in the E appeal as required under Sub-section (3) of Section I 00. 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 100."

F The position was highlighted by this Court in Joseph Severane and

Ors. v. Benny Mathew and Ors., [2005] 7 SCC 667; Sasikumar and Ors

v. Kunnath Chellappan Nair and Ors., [2005] 12 SCC 588; Jawala Singh (D) by Lrs. v. Jagat Singh (D) by Lrs., JT (2006) 8 SC 483 and C.A. Su/aiman & Ors. v. State Bank of Travancore, Alwayee and Ors., [2006] 6 SCC 392.

The proviso to Sub-section (5) of Section 100 is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law H already formulated and then only another substantial question of law which

SHAH MANSUKHLALCHHAGANLAL (D) 'JllROUGH LRS. v. GOlllL AMARSING GOVINDBHAI (D) 'JllROUGH LRS. IPASA Y AT. J.l } J 9

was not formulated earlier can be taken up by the High Court for reasons A to be recorded, if it is of the view that the case involves such question.

Under the circumstances, the impugned judgment is set, aside, and the matter is remitted to the High Court for disposal in accord~.ce with law.

The appeal is disposed of in the aforesaid terms with no order as to B ccsts.

D.G.

Appeal disposed of.