Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4701 OF 2008
(Arising out of S.L.P. (C) No.17588 of 2006)
Nune Prasad and Ors. ….Appellants
Versus
Nune Ramakrisna ….Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
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2. Challenge in this appeal is to the judgment of a
learned Single Judge of the High Court of Andhra Pradesh at
Hyderabad allowing the second appeal filed by the respondent
under Section 100 of the Code of Civil Procedure, 1908 (in
short 'CPC').
3. Factual background in a nutshell is as follows:
The appellant-plaintiff filed O.S. No.78 of 1990 before
the Sub-Court, Ramachandrapuram, East Godavari District,
Andhra Pradesh against the respondent-defendant. The Trial
Court by the judgment and order dated 27.06.1995 held that
the plaintiffs are the owners of the schedule property and they
being the owners of the schedule property are entitled to
possession. Aggrieved by the judgment and decree of the Trial
court, the respondent-defendant preferred an appeal in the
Court of Additional District Judge, Rajahmundry, East
Godavari District. By judgment and order dated 14.06.2001,
the first appellate court confirmed the Trial Court's judgment.
The respondent-defendant preferred a second appeal under
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Section 100 C.P.C. before the High Court of Andhra Pradesh
at Hyderabad, being Second Appeal No.512 of 2001. By the
impugned judgment, the learned Single Judge allowed the
second appeal and the judgments and decree passed by the
courts below were set aside.
Though many points have been urged in support of
the appeal, the primary stand of the learned counsel for the
appellants is that the second appeal was allowed without
framing any substantial question of law as mandated by
Section 100 CPC. Learned counsel for the respondent
submitted that though the High Court's judgment does not
show that any substantial question of law was framed yet
learned Single Judge has allowed the appeal after analyzing
the factual position in the background of settled principles in
law.
4. Section 100 of CPC deals with "Second Appeal". The
provision reads as follows:
"Section 100-Second Appeal: (1) Save as
otherwise expressly provided in the body
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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."
5. 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
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the question, if any, so formulated. That being so, the
judgment cannot be maintained, which is set aside and
remitted back to the High Court for proceeding in the matter
in accordance with law and in terms of observations made
herein.
6. In Ishwar Dass Jain v. Sohan Lal (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."
7. Yet again in Roop Singh v. Ram Singh (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
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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 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."
8 . The position has been reiterated in Kanhaiyalal and
Ors. v. Anupkumar and Ors. (2003 (1) SCC 430), Mathakala
Krishnaiah v. V. Rajagopal (2004(10) SCC 676), Smt. Ram
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Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167),
Sasikumar & Ors. v. Kunnath Chellappan Nair & Ors. (2005
(12) SCC 588), Gian Dass v. The Gram Panchayat Village
Sunner Kalan & Ors. (2006 (6) SCC 271), Shah Mansukhlal
Chhaganial (d) through Lrs. V. Gohil Amarsing Govindbhai (d)
through Lrs. (2006(13) SCALE 99).
.
9 The appeal stands disposed of in the above terms.
There will be no order as to costs.
……….………………….……….J.
(Dr. ARIJIT PASAYAT)
……..…………………………….J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
July 29, 2008
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