SUPREME COURT OF INDIA
Smt. Ram Sakhi Devi
Vs.
Chhatra Devi
C.A.No.3608 of 2005
(Arijit Pasayat and S.H.Kapadia JJ.)
12.07.2005
Arijit Pasayat, J.
1. Leave granted.
2. Appellant calls in question legality of the judgment rendered by a learned
Single Judge of the Patna High Court in Second Appeal in terms of Section 100
of the Code of Civil Procedure, 1908 (in short the 'Code').
The respondents are the legal heirs of the original plaintiff-Ishraj Narayan
Singh. The original plaintiff filed a suit seeking declaration of his title
over the suit land and declaration of want of title of Smt. Ram 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 the second appeal before the Patna High Court. By the impugned judgment
the High Court restored the judgment and decree of the trial court and set
aside the judgment and decree of the First Appellate Court.
2. 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. 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.
3. Learned Counsel for the respondents on the other hand submitted that 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.
4. As mandated by sub-section (3) of Section 100 of the Code, the memorandum of
appeal shall precisely state substantial question or questions 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 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.
5. 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."
6A 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.
7. In Ishwar Dass Jain vs. Sohan Lal) this Court it 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."
8. Yet again in Roop Singh (Dead) Through LRs. vs. Ram Singh (Dead) Through LRS),
this Court has expressed that the jurisdiction of a High Court is confined to
appeal 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 vs. Arvind Kumar . Hence the
High Court ought not to have interfered with the findings of fact recorded by
both the courts below."
9. The position has been reiterated in Kanhaiyalal and Others vs. Anupkumar and
others 6).
10. Refernce may also be made to R. Lakshmi Narayan vs. Shanti 62 ),
M.S.V. Raja and anr. vs. Seeni Thevar and others 33),R.V.E., Venkatachala
Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. ), Md.
Mohammad Ali (dead) by Lrs. vs. Jagadish Kalita and others ) and Chadat
Singh vs. Bahadur Ram and others1, Kishori Lal and Anr. vs.
Madan Gopal (D) by Lrs. & others2) and Mathakala Krishnaiah
vs. V. Rajagopal ).
11. 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
disposed of in the aforesaid terms with no order as to costs.
12004 (6) JT 296
22004 (8) JT 422