Nune Prasad &
Ors. Vs. Nune Ramakrisna  INSC 1247 (29 July 2008)
JURISDICTION CIVIL APPEAL NO. 4701 OF 2008 (Arising out of S.L.P. (C) No.17588
of 2006) Nune Prasad and Ors. ....Appellants Versus Nune Ramakrisna
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the High Court
of Andhra Pradesh at Hyderabad allowing the second appeal filed by the
respondent under Section 100 of the Code of Civil Procedure, 1908 (in short
background in a nutshell is as follows:
appellant-plaintiff filed O.S. No.78 of 1990 before the Sub-Court,
Ramachandrapuram, East Godavari District, and Andhra Pradesh against the
respondent-defendant. The Trial Court by the judgment and order dated
27.06.1995 held that the plaintiffs are the owners of the schedule property and
they being the owners of the schedule property are entitled to possession.
Aggrieved by the judgment and decree of the Trial court, the
respondent-defendant preferred an appeal in the Court of Additional District
Judge, Rajahmundry, and East Godavari District. By judgment and order dated
14.06.2001, the first appellate court confirmed the Trial Court's judgment.
preferred a second appeal under
Section 100 C.P.C.
before the High Court of Andhra Pradesh at Hyderabad, being Second Appeal
No.512 of 2001. By the impugned judgment, the learned Single Judge allowed the
second appeal and the judgments and decree passed by the courts below were set
Though many points
have been urged in support of the appeal, the primary stand of the learned
counsel for the appellants is that the second appeal was allowed without
framing any substantial question of law as mandated by Section 100 CPC. Learned
counsel for the respondent submitted that though the High Court's judgment does
not show that any substantial question of law was framed yet learned Single
Judge has allowed the appeal after analyzing the factual position in the
background of settled principles in law.
4. Section 100 of CPC
deals with "Second Appeal". The provision reads as follows:
100-Second Appeal: (1) Save as otherwise expressly provided in the body 3 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
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
5. 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, which is set aside and remitted back to the High Court for
proceeding in the matter in accordance with law and in terms of observations
6. 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."
7. 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:
"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 5 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."
8. The position has
been reiterated in Kanhaiyalal and Ors. v. Anupkumar and Ors. (2003 (1) SCC
430), Mathakala Krishnaiah v. V. Rajagopal (2004(10) SCC 676), Smt. Ram Sakhi
Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v.
Kunnath Chellappan Nair & Ors. (2005 (12) SCC 588), Gian Dass v. The Gram
Panchayat Village Sunner Kalan & Ors. (2006 (6) SCC 271), Shah Mansukhlal
Chhaganial (d) through Lrs. V. Gohil Amarsing Govindbhai (d) through Lrs. (2006(13)
9. The appeal stands
disposed of in the above terms.
There will be no
order as to costs.
(Dr. ARIJIT PASAYAT)