V. Ramaswamy Vs.
Ramachandran & ANR.  INSC 799 (17 April 2009)
JURISDICTION CIVIL APPEAL NO. 2634 OF 2009 (Arising out of S.L.P. (C) No. 9614
of 2006) V. Ramaswamy ....Appellant Versus Ramachandran & Anr.
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Madras High
Court allowing the second appeal filed by the respondents under Section 100 of
the Code of Civil Procedure, 1908 (in short 'CPC').
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.
100 of CPC deals with "Second Appeal". The provision reads as
100-Second Appeal: (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
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."
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 made herein.
Ishwar Dass Jain v. Sohan Lal (2000 (1) SCC 434), this Court in para 10, has
"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."
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 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."
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) SCALE 99) and Nune Prasad & Ors. v. Nune Ramarisna [2008(8)
matter is remitted to the high Court to decide after formulating substantial
question of law, if any.
appeal stands disposed of in the above terms. There will be no order as to
(Dr. ARIJIT PASAYAT)