C.A. SULAIMAN AND ORS.

STATE BANK OF TRAVANCORE, ALWAYEE AND ORS.

JULY 25, 2006

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

Code of Civil Procedure, 1908-Section JOO-Second Appeal-Disposed of by High Court without formulating or hearing on any substantial question C of la~Propriety of-Held, improper.

• F

The question which arose for consideration in the present appeals is as to whether the High Court erred in disposing of thr. second appeal without formulating the substantial question or questions of law, as mandated by Section 100 CPC.

Respondents raised plea that though no substantial question of law was formulated before the second appeals were adjudicated, yet that is permissible, because proviso to sub-section (5) of Section I 00 permits the High Court to decide a second appeal on a different substantial question of law subject to recording of reasons. ' Disposing of the appeals and remitting the matter to High Court, the Court

HELD: I. 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.

(154-F-G(

/shwar Dass Jain v. Sohan Lal. (200011 SCC 434; Roop Singh v. Ram Singh, (20001 3 SCC 708; Kanhaiyalal v. Anupkumar, (20031 I SCC 430; G Chadat Singh v. Bahadur Ram and Ors., [200416 SCC 359; Joseph Severane and Ors. v. Benny Mathew and Ors., (20051 7 SCC 667 and Sasikumar c.nd Ors. v. Kunnath Che/lappan Nair and Ors., 12005( 12 SCC 588, relied on.

2. The plea about pro, iso to sub-section (5) of Section JOO instead of supporting the stand of the Respondents rather goes against them. The H I~ ....

C.A. SULAIMANv. STATEBANKOFTRAVANCORE, ALWAYEE[PASAYAT, J.J

J 53

proviso is applicable only when any substantial question of law has already A 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 already formulated and then only another substantial question of law which was not formulated B earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question. 1156-C-DI

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4241-4243 of 2000.

From the Judgment and Order and dated 17.11.1997 of the High Court C of Kerala at Ernakulam in S.A. Nos. 311, 517 and 885 of 1988.

Subramonium Prasad and Jay Kishor Singh for the Appellants.

P. Krishnamoorty, M.T. George, T.G. Narayanan Nair, A. Subhashini, D A.V. Rangam, Roy Abraham and Himinder Lal for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment rendered by a learned Single Judge of the Kerala High Court allowing the E Second Appeals filed by the respondents by a common judgment. By the impugned judgment the judgment and decree of the Trial Court as well as the First Appellate Court were set aside.

It is not necessary to set out the factual details in view of the limited submissions made by learned counsel for the parties.

Learned coun5el for the appellants submitted that the High Court was not justified in disposing of the Second Appeals without formulating the substantial question or questions of law, as mandated by Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code').

Learned counsel for the respondents submitted that though the High Court has not formulated the questions of law as required, yet on analyzing the evidence, it concluded that the views expressed by the courts below were not tenable in law. That is why the Second Appeals were allowed.

It is further submitted that though no substantial question of law was H

A fo1mulated before the Second Appeals were adjudicated, yet that is permissible, because proviso to sub Section (5) of Section I 00 permits the High Court to decide a Second Appeal on a diffi:rent substantial question of law subject to recording of reasons.

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

.. JOO (I) 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 Hi5!1 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 memoran::Ium of appeal shall D 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 shjl be heard on the question so formulated and the E 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 F 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 !shwar Dass Jain v. Sohan Lal, [2000] I SCC 434 this Court in para I 0 has stated thus:

"10. Now under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law H and it is not permissible to reverse the judgment of the first appellate

.....

C.A. SULAIMANI'. STATE BANKOFTRAVANCORE, ALWAYEE[PASAYAT, J.] 155

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 I 00 CPC jurisdiction of B 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 C 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 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 D to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the .naterial 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 E 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 conve11ing permissive possession into adverse possession Thakur Kishan Singh v. Arvind Kumar, (1994] 6 sec 591. Hence the High Court ought not to have interfered with the F findings of fact recorded by both the courts below.

The position has been reiterated in Kanhaiyalal v. Anupkumar, (2003] 1 sec 430.

In Chadat Singh V. Bahadur Ram and Ors., (2004] 6 sec 359, it was G 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 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 H

A 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 JOO."

The position was highlighted by this Court in Joseph Severane and Ors. v.

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

B Kunnath Chellappan Nair and Ors .. [2005] 12 SCC 588].

The plea about proviso to sub-section (5) of Section I 00 instead of supporting the stand of the respondents rather goes against them. The proviso is applicable only when any substantial question of law has already been fonnulated and it empowers the High Court to hear, for reasons to be recorded, C 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 can be taken up by the High Court for reasons to be recorded, if it is of the view that the case D involves such question.

Under the circumstances the impugned judgment is set aside, we remit the matter to the High Court for disposal in accordance with law. The appeals are disposed of on the aforesaid tenns with no order as to costs.

B.B.B.

Appeals disposed of.