(D) Thr. L.Rs. Vs. M. Rajyalakshmi & Anr  Insc 965 (14 December 2006)
P. Mathur & Lokeshwar Singh Panta
O R D
E R [Arising out of S. L. P. (C) No.1715 of 2006] Special leave granted.
only point on which the notice was issued related to the desirability of
disposing of the Second Appeal in terms of Section 100 of the Code of Civil
Procedure, 1908 [in short `the Code'] without formulating the substantial
question of law by the High Court of Judicature, Andhra Pradesh at Hyderabad,
it is not necessary to deal with the factual aspects in detail.
respondents instituted a suit O.S. No.572 of 1989 in the Court of VI Assistant
Judge, City Civil Court, Hyderabad, against the appellants for perpetual
injunction restraining the appellants from interfering with the peaceful
possession of suit land admeasuring Ac.1.25 guntas (i.e. 65 guntas) in Survey
No.29 in village Theegalguda, Mandal Charminar, Hyderabad Distt., Andhra
suit was decreed by the trial court. The appellants carried the matter in
appeal being A.S. No.249 of 1996 to the Court of the Additional Chief Judge, City Civil Court, Hyderabad. The learned Additional Chief Judge allowed the appeal and
set aside the judgment and decree of the trial court. Being aggrieved against
the judgment of the First Appellate Court, the respondents filed Second Appeal
No.523 of 2001 in the High Court of Judicature, Andhra Pradesh at Hyderabad. By the impugned judgment, the
Second Appeal was allowed and the judgment of the First Appellate Court was
this appeal by special leave.
various points were urged by learned counsel for the appellant, it is not
necessary to go into those aspects in view of the limited notice issued in the
S. Rajan, learned senior counsel for the appellants, submitted that the High
Court was not justified in disposing of the Second Appeal without formulating
the substantial question or questions of law as mandated by Section 100 of the
Mukund, learned counsel for the respondents, submitted that though the High
Court has not formulated the questions of law, as required, yet on analyzing
the evidence, it concluded that the view expressed by the courts below were not
tenable in law.
100 of the Code deals with `Second Appeal'. 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 a question of law, if
any, so formulated. That being so, the judgment cannot be sustained.
Dass Jain v. Sohan Lal [(2000) 1 SCC 434], this Court in para 10 has stated
thus: (SCC p.441) "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 reads: (SCC p.713) "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 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 v. Anupkumar [(2003) 1 SCC 430], Chadat Singh v. Bahadur Ram &
Ors. [(2004) 6 SCC 359]; Sasikumar & Ors. v. Kunnath Chellappan Nair &
Ors. [(2005) 12 SCC 588].
the circumstances, the impugned judgment dated 25.08.2005 passed by the High
Court of Judicature, Andhra Pradesh at Hyderabad in Second Appeal, is set
aside. We remit the matter to the High Court for disposal of Second Appeal
No.523 of 2001 in accordance with law. The appeal is disposed of on the
above-said terms with no order as to costs.
the matter is pending for long, we request the High Court to dispose of the
appeal as early as possible.