SUPREME COURT OF INDIA
Mathakala Krishnaiah
Vs.
V. Rajagopal
C.A.No.6784-6785 of 2004
(Arijit Pasayat and C.K.Thakker JJ.)
15.10.2004
Arijit Pasayat, J.
1.
Leave granted.
2. By the impugned judgment a learned Single Judge of the Andhra Pradesh High
Court reversed the Appellate Court's judgment and decree passed by learned 2nd
Additional District Judge, Nellore. The present respondent was the plaintiff in
the original suit which was on the file of 1st Additional District Munsif
Court, Nellore. He was the appellant before the High Court. Though the trial
Court had decided in favour of the plaintiff (respondent herein), as noted
above the first Appellate Court reversed the judgment and decree of the trial
Court and the suit filed by the plaintiff was dismissed.
3. The plaintiff filed Second Appeal before the High Court which was disposed
of by the impugned judgment.
4. The High Court directed restoration of the judgment and decree of the trial
Court and set aside the judgment and decree of the first Appellate Court.
5. Though many points were urged in support of the appeal, the pivotal plea was
that the High Court could not have interfered with the judgment and decree of
the first Appellate Court without framing a substantial question of law as
enjoined by Section 100 of the Code of Civil Procedure, 1908 (in short
the 'Code'). The High Court can only exercise its jurisdiction under Section
100 of the Code in Second Appeal 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 Second appeal without following the aforesaid
procedure is not sustainable in law.
6. Learned counsel for the respondent on the other hand submitted that the
question of law is self evident and on a technical plea that a question has not
been framed, the well reasoned judgment should not be set aside.
7. In view of Section 100 of the Code the memorandum of appeal shall 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
100.
8. Section 100 of the Code deals with "Second Appeal". The provision
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,
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 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."
9. 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.
10. In Ishwar Dass Jain v. Sohan Lal ) 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 doing
so."
11. Yet again in Roop Singh v. Ram Singh ) 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 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 100 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 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 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 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 possession (Thakur Kishan Singh v. Arvind
Kumar . Hence the High Court ought not to have interfered with the
findings of fact recorded by both the courts below."
12. The position has been reiterated in Kanhaiyalal and Ors. V. Anupkumar and
Ors. 6)
13. Reference may also be made to R. Lakshmi Narayan v. Santhi 62 ),
M.S.V. Raja and Anr. v. Seeni Thevar and Ors. 33 ), R.V.E. Venkatachala
Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr. ), Md. Mohammad
Ali (dead) by Lrs. V. Jagadish Kalita and Ors. ) and Chadat Singh v.
Bahadur Ram and Ors. (Civil Appeal Nos.4903-4905/2005 decided on 3rd August,
2004).
14. In the circumstances, the impugned judgment is set aside. We remit these
matters to the High Court for disposal in accordance with law. The appeals are
disposed of in the aforesaid terms with no order as to costs.