Shivashankara Vs. B.R. Nagaraj  Insc 215 (27 February 2007)
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Karnataka High Court allowing the Second Appeal filed by respondent No.1.
Originally, there were three defendants and the present appeal has been filed
only by defendant no.1. The other defendants were impleaded as respondents 2
and 3 in the present appeal but their names were deleted at the request of the
appellant. Though several points were urged in support of the appeal, we think
it unnecessary to deal with them in detail considering the primary stand taken
that the Second Appeal was allowed without formulating any substantial question
of law as required under Section 100 of the Code of Civil Procedure, 1908 (in
short the 'Code').
None appeared for the respondents in spite of service of notice.
Section 100 of the Code deals with "second appeal". The provision
reads as follows:
"100 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.
An appeal may lie under this section from an appellate decree passed
In an appeal under this section, the
memorandum of appeal shall precisely state the substantial question of law
involved in the appeal.
Where the High Court is satisfied
that a substantial question of law is involved in any case, it shall formulate
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:
"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:
"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 establish by
cogent and convincing evidence to show hostile animus Page 1532 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
The position has been reiterated in Kanhaiyalal v.
Anupkumar [2003 (1) SCC 430].
In Chadat Singh v. Bahadur Ram and Ors. [2004 (6) SCC 359], it was observed
"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 Section100. 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
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. Gram
Panchayat, Village Sunner Kalan and Ors. (2006 (6) SCC 271).
Sub-section (5) of Section 100 is applicable only when any substantial
question of law has already been formulated and it empowers the High Court to
hear, for reasons to be recorded, the appeal on any other substantial question
The expression "on any other substantial question of law"
clearly shows that there must be some substantial question of law already
formulated and then only another substantial question of law which was not
formulated earlier can be taken up by the High Court for reasons to be
recorded, if it is of the view that the case involves such question.
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. 236 of 1991
for disposal in accordance with law. The appeal is disposed of in the aforesaid
terms with no order as to costs.