Vs. Lakhmi & Anr  Insc 63 (22 January 2007)
Arijit Pasayat & S.H. Kapadia (Arising out of Slp(C) Nos. 25897-25898 of 2004)
Dr. Arijit Pasayat, J.
learned counsel for the parties.
appeals are directed against the judgment passed by learned Single Judge of Punjab and Haryana High Court allowing the
Second Appeal filed by the defendant and rejecting the application for review.
plaintiff has filed the present appeals against the aforesaid orders.
several points were urged in support of the appeals, main ground was that the
Second appeal was allowed without formulating a question of law.
view of Section 100 of the Code of Civil Procedure, 1908 (in short 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 100.
100 of the Code deals with "Second Appeal". The provision reads 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 ex parte.
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 that question.
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
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.
Ishwar Dass Jain v. Sohan Lal (2000 (1) SCC 434) this Court in para 10, has
"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.
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 Kanahaiyalal
and Ors. v. Anupkumar and Ors. (2003 (1) SCC 430) and Ram Sakhi Devi (Smt.) v.
Chhatra Devi and Others (2005 (6) SCC 181).
matter is remitted to the High Court, which shall formulate substantial
questions of law, if any, and then deal with the matter. Needless to say if
there is/are question(s) of law, the appeal has to be dismissed. We express no
opinion in that regard.
are allowed without any orders as to costs.