SUPREME COURT OF INDIA
Shah Mansukhlal Chhaganial (d) Through Lrs
Vs
Gohil Amarsing Govindbhai (d) Through Lrs
Appeal (Civil) 5614 of 2006 (Arising Out of Slp ( C) No.7514 of 2003)
(Arijit Pasayat and S. H. Kapadia, JJ)
05.12.2006
DR. ARIJIT PASAYAT J
Leave granted.
Challenge in this appeal is to the judgment rendered by a learned Single Judge
of the Gujarat High Court. Second appeal filed by the respondents in terms of
Section 100 of the Code of Civil Procedure, 1908 (in
short the 'Code') was allowed. Though various questions were raised in support
of the appeal, it was primarily highlighted that the Second Appeal was allowed
without formulating any substantial question of law.
There is no appearance on behalf of respondents when the matter is called
though learned counsel had entered appearance.
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 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 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.
In Ishwar Dass Jain v. Sohan Lal 2000 (1) SCC 434 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."
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. In Chadat Singh v. Bahadur Ram and Ors. , 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 Section100. 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 ; Sasikumar and Others v. Kunnath Chellappan Nair
and Others. ; Jawala Singh (D) by Lrs. v. Jagat Singh (D) by Lrs.
2006 (8) JT 483 and C.A. Sulaiman & Ors. v. State Bank of Travancore,
Alwayee and Ors. 2006 (6) SCC 392.
The proviso to Sub-section (5) of Section 100 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.
Under the circumstances, the impugned judgment is set aside, and the matter is
remitted 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.