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Patrick Jj. Saldanha Vs. Antony M. Saldanha [2007] Insc 520 (8 May 2007)

Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the order passed by a learned Single Judge of the Karnataka High Court allowing the Second Appeal ( RSA No. 930 of 1991) filed by the respondent.

Though many points are urged, primarily it was submitted that the Second Appeal was allowed without formulating a substantial question of law.

In 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.

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 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."

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 (Dead) through LRs. v. Sohan Lal (Dead) through LRs. (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 (Dead) through LRs. v. Ram Singh (Dead) through LRs. (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 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 Kanahaiyalal and Ors. V. Anupkumar and Ors. (JT 2002 (10) SC 98), Premabai v. Jnaneshwar Ramakrishna Patange and Ors. (2003 AIR SCW 2922), Chadat Singh v. Bahadur Rama and Ors. (JT 2004 (6) SCC 296) and Mathakala Krishnaiah v. V. Rajagopal (JT 2004 (9) SCC 205). Recently this Court has clarified the position in Shah Mansukhlal Chhanganial (Dead) through LRs. v. Gohil Amarsing Govindbhai (Dead) through LRs. 2006 (13) SCALE 99, Ravi Construction Co. v. Somvanshi Arya Ksatriya Samaj and Ors. 2006 (9) SCALE 174), Jawala Singh (Dead) by LRs. &

Ors. v. Jagat Singh (Dead) By LRs. & Ors. (JT 2006 (8) SC 483, C.A. Sulaiman and Ors. v. State Bank of Travancore Alwayee and Ors. (AIR 2006 SC 2848.

In the circumstances, the impugned judgment is set aside. We remit the matter to the High Court for disposal after formulating the substantial question of law, if any, and in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.

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