[2009] 6 S.C.R. 520 - ..

V. RAMASWAMY

RAMACHANDRAN & ANR. (Civil Appeal No. 2634 of 2009)

APRIL 17, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGULY, JJ.] •

Code of Civil Procedure, 1908 - Section 100 - Second c appeal - Disposal of, by High Court without formulating substantial question of law - Justification of - Held: High Court is to formulate a substantial question of law and hear the appeal on the question formulated - In absence of the same, judgment cannot be maintained - Matter remitted back to

D High Court.

The question which arose for consideration in this appeal, was whether the High Court was justified in disposing of the second appeal without formulating the substantial question of law, as mandated by section

E 100 CPC.

Disposing of the appeal, the Court

HELD: A perusal of the impugned judgment passed

F 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 and is set aside. Matter is remitted to High Court to decide after

G formulating substantial question of law, if any. [Para 6]

[523-A-C]

lshwar Dass Jain v. Sohan Lal 2000 (1) SCC 434; Roop Singh v. Ram Singh 2000 (3) SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors. 2003 (1) SCC 430; Mathakala H 520

...

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V.RAMASWAMY v. RAMACHANDRAN & ANR. 521

KrishnaiClh v. V. Rajagopal 2004 (10) SCC 676; Smt. Ram Sakhi Oevi v. Chhatra Devi & Ors. JT 2005 (6) SC 167; Sasikumar & Ors. v. Kunnath Chel/appan Nair & Ors. 2005

(12) SCC 588; Gian Dass v. The Gram Panchayat Village Sunner Kalan & Ors. 2006 (6) SCC 271; Shah Mansukhla/ Chhagania/ (D) through Lrs. v. Gohil Amarsing Govindbhai

(0) through Lrs. 2006 (13) SCALE 99; Nune Prasad & Ors.

v. Nune Ramarisna 2008 (8) SCC 258, relied on.

Case Law Reference:

2000 (1) sec 434 Relied on Para 6

2000 (3) sec 108 Relied on Para 7

2003 (1) sec 430 Relied on Para 8 l

2004 (10) sec 676 Relied on Para 8

JT 2005 (6) SC 167 Relied on Para 8

2005 (12) sec 588 Relied on Para 8

2006 (6) sec 211 Relied on Para 8

2006 (13) SCALE 99 Relied on Para 8

2008 (8) sec 258 Relied on Para 8

CIVIL APPELLATE JURISDICTION : Civil Appeal No .. 2634 of 2009.

From the Judgment & Order dated 10.1.2006 of the High Court of Judicature at Madras in Second Appeal No. 321 of 1995.

V. Mohanan for the Appellant.

V. Prabhkar, Ramjee Prasad and Revathy Raghavan for

r the Respondnts.

The Judgment of the Court was delivered by

DR. ARIJ~AT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High Court allowing the second appeal filed by the respondents under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC').

3. Though many points have been urged in support of the 8 appeal, the primary stand of the learned counsel for the appellants is that the second appeal was allowed without framing any substantial question of law as mandated by Section 100 CPC. Learned counsel for the respondent submitted that though the High Court's judgment does not show C that any substantial question of law was framed yet learned

Single Judge has allowed the appeal after analyzing the factual position in the background of settled principles in law.

4. Section 100 of CPC deals with "Second Appeal". The o provision reads as follows: j

"Section 100-Second Appeal: (1) Save as otherwiA 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 E 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.

(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 law is involved in any case, it st:iall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, ai hearing of the appeal, be allowed to argue that the cas es not involve

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V.RAMASWAMY v. RAMACHANDRAN & ANR. 523

[DR. ARIJIT PASAYAT, J.] '!>

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 B is satisfied that the case involves such question."

5. 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 secon.d appeal was heard on the question, if any, so formulated. That being so, the judgment c cannot be maintained, which is set aside and remitted back to the High Court for proceeding in the matter in accordance with law and in terms of observations made herein.

6. In lshwar Dass Jain v. Sohan Lal (2000 (1) SCC 434), D this Court in para 10, 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 and it is not permissible to reverse the judgment of the first appellate Court without E doing so."

7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC 708), this Court has expressed thatthe 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 G the High Court to interfere with pure questions of fact while -l exercising its jurisdiction under section 100 CP~. 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 H

A 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 his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded B 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 c 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 adverse

D possession (Thakur Kish an 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."

8. The position has been reiterated in Kanhaiya/a/ and

E Ors. v. Anupkumar and Ors. (2003 (1) SCC 430), Mathaka/a Krishnaiah v. V. Rajagopa/ (2004(10) SCC 676), Smt. Ram Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v. Kunnath Chellappan Nair & Ors. (2005(12) SCC 588), Gian Dass v. The Gram Panchayat

F Village Sunner Kalan & Ors. (2006 (6) SCC 271), Shah Mansukhlal Chhaganial (d) through Lrs. V. Gohil Amarsing Govindbhai (d) through Lrs. (2006(13) SCALE 99) and Nune Prasad & Ors. v. Nune Ramarisna [2008(8) SCC 258].

9. The matter is remitted to the high Court to decide after G formulating substantial question of law, if any.

10. The appeal stands disposed of in the above terms.

There will be no order as to costs.

N.J.

Appeal disposed of.