Full Judgment Text
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CASE NO.:
Appeal (civil) 414 of 2001
PETITIONER:
Patrick JJ. Saldanha
RESPONDENT:
Antony M. Saldanha
DATE OF JUDGMENT: 08/05/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Karnataka High Court allowing the
Second Appeal ( RSA No. 930 of 1991) filed by the respondent.
Though many points are urged, primarily it was
submitted that the Second Appeal was allowed without
formulating a substantial question of law.
In view of Section 100 of the Code of Civil Procedure,
1908 (in short "The Code") the Memorandum of Appeal shall
precisely state substantial question or questions of law
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 be heard on the question so formulated as stated in
sub-section (5) of Section 100.
Section 100 of the Code deals with "Second Appeal". The
provision reads as follows:
"Section 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.
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(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 (Dead) through LRs. v. Sohan Lal
(Dead) through LRs. (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 (Dead) through LRs. v. Ram
Singh (Dead) through LRs. (2000 (3) SCC 708) 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 findings
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
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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 (1994
(6) SCC 591). 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 Kanahaiyalal and
Ors. V. Anupkumar and Ors. (JT 2002 (10) SC 98), Premabai
v. Jnaneshwar Ramakrishna Patange and Ors. (2003 AIR SCW
2922), Chadat Singh v. Bahadur Rama and Ors. (JT 2004 (6)
SCC 296) and Mathakala Krishnaiah v. V. Rajagopal (JT 2004
(9) SCC 205). Recently this Court has clarified the position in
Shah Mansukhlal Chhanganial (Dead) through LRs. v. Gohil
Amarsing Govindbhai (Dead) through LRs. 2006 (13) SCALE
99, Ravi Construction Co. v. Somvanshi Arya Ksatriya Samaj
and Ors. 2006 (9) SCALE 174), Jawala Singh (Dead) by LRs. &
Ors. v. Jagat Singh (Dead) By LRs. & Ors. (JT 2006 (8) SC 483,
C.A. Sulaiman and Ors. v. State Bank of Travancore Alwayee
and Ors. (AIR 2006 SC 2848.
In the circumstances, the impugned judgment is set
aside. We remit the matter to the High Court for disposal after
formulating the substantial question of law, if any, and in
accordance with law. The appeal is disposed of in the aforesaid
terms with no order as to costs.