SUPREME COURT OF INDIA
C.A. Sulaiman and Others
Vs
State Bank of Travancore, Alwayee and Others
Civil Appeal Nos. 4241-4243 of 2000
(Arijit Pasayat and S. H. Kapadia, JJ)
25.07.2006
ARIJIT PASAYAT, J.
1. Challenge in these appeals is to the judgment rendered by a learned Single
respondents by a common judgment. By the impugned judgment the judgment and
decree of the Judge of the Kerala High Court allowing Trial Court as well as
the First Appellate Court were set aside.
2. It is not necessary to set out the Second Appeals filed by the actual
details in view of the limited submissions made by learned counsel for the
parties.
3.Learned counsel 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').
4. 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.
5. It is further submitted 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 100 permits the High Court to
decide a Second Appeal on a different substantial question of law subject to
recording of reasons.
6. 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.
(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 subsection 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."
7. 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.
8. In IshwarDass Jain v. Sohan Lai 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."
9. 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 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 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 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.
The position has been reiterated in Kanhaiyalal v. Anupkumar 6.
10. In Chadat Singh v. Bahadur Ram and others , it was observed thus:
"6. In view of Section 100 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 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."
The position was highlighted by this Court in Joseph Severane and others v.
Benny Mathew and others = 2005 (7) SCJ 434 and Sasikumar and others
v. Kunnath Chellappan Nair and others .].
11. The plea about proviso to subsection (5) of Section 100 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
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 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,
12. 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 terms with no order as to costs-
J