Full Judgment Text
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CASE NO.:
Appeal (civil) 1004 of 2003
PETITIONER:
Jawala Singh (D) By Lrs.& Ors.
RESPONDENT:
Jagat Singh (D) By Lrs. & Ors.
DATE OF JUDGMENT: 06/09/2006
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
With
Civil Appeal No. 3938 of 2006
ARIJIT PASAYAT, J.
In these appeals challenge is to the judgment rendered by
a learned Singh Judge of the Punjab and Haryana High Court
allowing the Second Appeal filed under Section 100 of the
Code of Civil Procedure, 1908 (in short the ’CPC’). The Second
appeal was partially allowed by setting aside the judgment and
decree of the First appellate Court in the plaintiff’s suit for
possession to the extent of land measuring 36 kanals
comprised in Khasra Nos. 646,647 and 648.
Though many points were urged basically it was urged
that the Second appeal was allowed without formulating any
question of law for adjudication. This according to appellants
rendered the judgment vulnerable.
Learned counsel for the respondents submitted that
though specific question of law was not formulated, the High
Court analysed the evidence and kept to the correct
conclusion.
Section100 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
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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, he 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 show that any substantial question of law has
been formulated or that the second appeal was heard on a
question, if any, so formulated. That being so, the judgment
cannot be maintained.
In Ishwar Dass Jain v. Sohan La1 this Court in para 10
has stated
"10. Now under Section 100 CPC, after the
1976 Amendment, it is essential for the High
Court to formulate a substantial question of
law 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 jurisdiction of a High Court is confined to
appeals involving substantial question of law. Para 7 of the
said judgment reads: (SCC p. 713, para 7)
"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
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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 [(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 Kanhaiyalal v.
Anupkumar [(2003) 1 SCC 430].
In Chadat Singh v. Bahadur Ram [(2004) 6 SCC 359] it
was observed thus: (SCC p. 360)
"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 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 he 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 [2005 (7)
SCC 667], Sasikumar and Others v. Kunnath Chellappan Nair
and Others [2005(12) SCC 588] and Gian Dass v. The Gram
Panchayat, Village Sunner Kalan & Ors. [2006 (5) Supreme
776 ].
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. 1832 of 1979 for disposal in
accordance with law. The appeals are disposed of on the
aforesaid terms with no order as to costs.
Since the matter is pending since long, we request the
High Court to dispose of the appeal as early as practicable.