SUPREME COURT OF INDIA
Chilakamarthi Mohana Rao
Vs
Patibanda Soma Sundara Rao
Appeal (Civil) 5818 of 2006 (Arising Out of S. L. P. (C) No.2280 of 2006)
(G. P. Mathur and L. S. Panta, JJ)
14.12.2006
G.P.MATHUR, j.
Special leave granted.
As the only point on which the notice was issued related to the desirability of
disposing of the Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 [in short 'the Code']
without formulating the substantial question of law by the High Court of
Judicature, Andhra Pradesh at Hyderabad, it is not necessary to deal with the
factual aspects in detail.
The respondent-Patibanda Soma Sundara Rao filed a suit for cancellation of the
sale deed dated 21.12.1981, executed by his father in favour of the
appellant-Chilakamarthi Mohana Rao and another sale deed dated 21.12.1981 in
favour of the minor son of the appellant and for consequential possession of
the properties involved in the said two sale deeds. During the pendency of the
suit, the parties had agreed to refer the matter to an Arbitrator. The
Arbitrator made an Award (Ex. A2) and submitted the same before the trial
court. The appellant took an objection that the Award of the Arbitrator is
fraudulent and he had never agreed to the terms and conditions incorporated in
the Award. The trial court, while recording the compromise in terms of the said
Award, decreed the suit declaring the sale deed executed in favour of the
appellant as sham transaction and accordingly cancelled the same. Aggrieved by
the impugned judgment of the trial court, the appellant-defendant No.1 filed
First Appeal before the 1st Additional Senior Civil Judge, Vijaywada. The First
Appellate Court, while appreciating the entire evidence, allowed the appeal and
set aside the decree and judgment of the trial court. The respondent preferred
the Second Appeal No. 650 of 2003 against the judgment of the First Appellate
Court. By the impugned judgment, the High Court allowed the appeal, set aside
the judgments of both the courts below and remanded the suit to the trial court
for fresh disposal within a period of one year from the date of receipt of a
copy of the judgment.
Hence, this appeal by special leave.
Though various points were urged by learned counsel for the appellant, it is
not necessary to go into those aspects in view of the limited notice issued in
the present appeal.
Mr. B. Sridhar, learned counsel for the appellant, submitted that the High
Court was not justified in disposing of the Second Appeal without formulating
the substantial question or questions of law as mandated by Section 100 of the
Code.
Mr. K. Shivraj Choudhuri, learned counsel for the respondent, submitted that
though the High Court has not formulated the questions of law, as required, yet
on analyzing the evidence, it concluded that the view expressed by the courts
below were not tenable in law.
Section 100 of the Code deals with 'Second Appeal'. 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 a question of
law, if any, so formulated. That being so, the judgment cannot be sustained.
In Ishwar Dass Jain v. Sohan Lal , this Court in para 10 has stated thus:
(SCC p.441) "10. Now under Section 100 Code Of Civil Procedure, 1908,
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: (SCC p.713)
"7. It is to be reiterated that under Section 100 Code
Of Civil Procedure, 1908 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 Code Of Civil Procedure, 1908. 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 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, Chadat Singh v. Bahadur Ram & Ors. ;
Sasikumar & Ors. v. Kunnath Chellappan Nair & Ors. .
Under the circumstances, the impugned judgment dated 02.11.2005 passed by the
High Court of Judicature, Andhra Pradesh at Hyderabad, is set aside. We remit
the matter to the High Court for disposal of Second Appeal No.650 of 2003 in
accordance with law. The appeal is disposed of on the above-said terms with no
order as to costs.
Since the matter is pending for long, we request the High Court to dispose of
the appeal as early as possible.