SUPREME COURT OF INDIA
Jawala Singh (D) By Lrs. and Others
Vs
Jagat Singh (D) By Lrs. and Others
Appeal (Civil) 1004 of 2003 With Civil Appeal No. 3938 of 2006
(Arijit Pasayat and S. H. Kapadia, JJ)
06.09.2006
ARIJIT PASAYAT, J.
In these appeals challenge is to the judgment rendered by a learned Singh Judge
of the Punjab and Haryana High Court allowing the Second Appeal filed under
Section 100 of the Code of Civil Procedure, 1908 (in
short the 'CPC'). The Second appeal was partially allowed by setting aside the
judgment and decree of the First appellate Court in the plaintiff's suit for
possession to the extent of land measuring 36 kanals comprised in Khasra Nos.
646, 647 and 648.
Though many points were urged basically it was urged that the Second appeal was
allowed without formulating any question of law for adjudication. This
according to appellants rendered the judgment vulnerable.
Learned counsel for the respondents submitted that though specific question of
law was not formulated, the High Court analysed the evidence and kept to the
correct conclusion.
Section100 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, he 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."
A perusal of the impugned judgment passed by the High Court does show that any
substantial question of law has been formulated or that the second appeal was
heard on a question, if any, so formulated. That being so, the judgment cannot
be maintained.
In Ishwar Dass Jain v. Sohan La1 this Court in para 10 has stated
"10. Now under Section 100 CPC, after the 1976 Amendment, it is
essential for the High Court to formulate a substantial question of law it is
not permissible to reverse the judgment of the first appellate court without
doing so."
Yet again in Roop Singh v. Ram Singh this Court has expressed that jurisdiction
of a High Court is confined to appeals involving substantial question of law.
Para 7 of the said judgment reads: (SCC p. 713, para 7)
"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 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.
In Chadat Singh v. Bahadur Ram it was observed thus: (SCC p. 360)
"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 he
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 , Sasikumar and Others v. Kunnath Chellappan Nair
and Others 2005 (12) SCC 588 and Gian Dass v. The Gram Panchayat, Village
Sunner Kalan & Ors. [2006 (5) Supreme 776 ].
Under the circumstances, the impugned judgment is set aside. We remit the
matter to the High Court so far as it relates to Second Appeal No. 1832 of 1979
for disposal in accordance with law. The appeals are disposed of on the
aforesaid terms with no order as to costs.
Since the matter is pending since long, we request the High Court to dispose of
the appeal as early as practicable.