MATHAKALA KRISHNAIAH Vs. V. RAJAGOPAL  INSC 647 (15 October 2004)
ARIJIT PASAYAT & C.K. THAKKER (Arising out of SLP ) Nos. 11653-11654 of 2004) ARIJIT PASAYAT, J Leave
By the impugned judgment a learned Single Judge of the Andhra Pradesh High
Court reversed the Appellate Court's judgment and decree passed by learned IInd
Additional District Judge, Nellore. The present respondent was the plaintiff in
the original suit which was on the file of Ist Additional District Munsif Court,
Nellore. He was the appellant before the High Court. Though the trial Court
had decided in favour of the plaintiff (respondent herein), as noted above the
first Appellate Court reversed the judgment and decree of the trial Court and
the suit filed by the plaintiff was dismissed. The plaintiff filed Second
Appeal before the High Court which was disposed of by the impugned judgment.
The High Court directed restoration of the judgment and decree of the trial
Court and set aside the judgment and decree of the first Appellate Court.
Though many points were urged in support of the appeal, the pivotal plea was
that the High Court could not have interfered with the judgment and decree of
the first Appellate Court without framing a substantial question of law as
enjoined by Section 100 of the Code of Civil Procedure, 1908 (in short the
'Code'). The High Court can only exercise its jurisdiction under Section 100 of
the Code in Second Appeal on the basis of substantial question of law framed at
the time of admitting appeal. A Second Appeal can be heard and decided only on
the basis of substantial question of law, if any. The judgment rendered by the
High Court in Second appeal without following the aforesaid procedure is not
sustainable in law.
Learned counsel for the respondent on the other hand submitted that the
question of law is self evident and on a technical plea that a question has not
been framed, the well reasoned judgment should not be set aside.
In view of Section 100 of 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
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
(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 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." 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
"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 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 and Ors. V.
Anupkumar and Ors. (JT 2002 (10) SC 98) Reference may also be made to R.
Lakshmi Narayan v. Santhi (2001 (4) SCC 688), M.S.V. Raja and Anr. v. Seeni
Thevar and Ors. (2001 (6) SCC 652), R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami and V.P. Temple and Anr. (2003 (8) SCC 752), Md. Mohammad Ali
(dead) by Lrs. V. Jagadish Kalita and Ors. (2004 (1) SCC 271) and Chadat Singh
Bahadur Ram and Ors. (Civil Appeal Nos.4903-4905/2005 decided on 3rd August, 2004).
In the circumstances, the impugned judgment is set aside. We remit these
matters to the High Court for disposal in accordance with law. The appeals are
disposed of in the aforesaid terms with no order as to costs.