SUPREME COURT OF INDIA
G. Susheela (D) Thr. L.Rs
Vs
M. Rajyalakshmi and Another
Appeal (Civil) 5817 of 2006 (Arising Out of S. L. P. (C) No.1715 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 respondents instituted a suit O.S. No.572 of 1989 in the Court of VI
Assistant Judge, City Civil Court, Hyderabad, against the appellants for
perpetual injunction restraining the appellants from interfering with the
peaceful possession of suit land admeasuring Ac.1.25 guntas (i.e. 65 guntas) in
Survey No.29 in village Theegalguda, Mandal Charminar, Hyderabad Distt., Andhra
Pradesh.
The suit was decreed by the trial court. The appellants carried the matter in
appeal being A.S. No.249 of 1996 to the Court of the Additional Chief Judge,
City Civil Court, Hyderabad. The learned Additional Chief Judge allowed the
appeal and set aside the judgment and decree of the trial court. Being
aggrieved against the judgment of the First Appellate Court, the respondents
filed Second Appeal No.523 of 2001 in the High Court of Judicature, Andhra
Pradesh at Hyderabad. By the impugned judgment, the Second Appeal was allowed
and the judgment of the First Appellate Court was reversed.
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. C. S. Rajan, learned senior counsel for the appellants, 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. C. Mukund, 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 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 25.08.2005 passed by the High
Court of Judicature, Andhra Pradesh at Hyderabad in Second Appeal, is set
aside. We remit the matter to the High Court for disposal of Second Appeal
No.523 of 2001 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.