SUPREME COURT OF INDIA
B.C.Shivashankara
Vs.
B.R.Nagaraj
(Arijit Pasayat and Tarun Chatterjee,JJ.,)
27.02.2007
JUDGMENT
Dr.Arijit Pasayat, J.,
1. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the Second Appeal filed by respondent No.1. Originally, there were three defendants and the present appeal has been filed only by defendant no.1. The other defendants were impleaded as respondents 2 and 3 in the present appeal but their names were deleted at the request of the appellant. Though several points were urged in support of the appeal, we think it unnecessary to deal with them in detail considering the primary stand taken that the Second Appeal was allowed without formulating any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code').
None appeared for the respondents in spite of service of notice. 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 Lal1 this
Court in para 10 has stated thus:
"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."
2. Yet again in Roop Singh v. Ram Singh 2 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 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 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 Kumar3) .
Hence the High Court ought not to have interfered with the findings of fact
recorded by both the courts below."
3. The position has been reiterated in Kanhaiyalal v. Anupkumar 4. In
Chadat Singh v. Bahadur Ram and Ors5. ,
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."
4. The position was highlighted by this Court in Joseph Severane and Others v. Benny Mathew and Others6, Sasikumar and Others v. Kunnath Chellappan Nair and Others7. and Gian Dass v. Gram Panchayat, Village Sunner Kalan and Ors8. 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.
5. 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. 236 of 1991
for disposal in accordance with law. The appeal is disposed of in the aforesaid
terms with no order as to costs.
Judgment Referred.
1(2000) 1 SCC 0434
2(2000) 3 SCC 0708
3(1994) 6 SCC 0591
4(2003) 1 SCC 0430
5(2004) 6 SCC 0359
6(2005) 7 SCC 0667
7(2005) 12 SCC 0588
8(2006) 6 SCC 0271