Umerkhan Vs. Bismillabi
@ Babulal Shaikh & Ors.
R.M. Lodha, J.
appeal, by special leave, has been preferred by the original 1st defendant against
the judgment of the High Court of Judicature of Bombay, Aurangabad Bench whereby
the learned Single Judge of that Court reversed the judgment and decree passed 1in
the appeal by the Additional District Judge, Osmanabad and restored the
judgment and decree of the trial court.
Khan was the owner of a property bearing land Block No. 386 and House No. 206
situate at Mangrul, Taluqa Kallam, District Osmanabad. He died in 1948 leaving behind
a son --Umerkhan and two daughters--Bismillabi and Aminabi. Both daughters were
minor at the time of the death of their father. They got married later. Bismillabi
(hereinafter referred to as, `plaintiff') filed a suit for partition and
separate possession to the extent of 1/4th share in the above property against her
brother Umerkhan (hereinafter referred to as, `1st defendant') and her sister Aminabi
(hereinafter referred to as, `2nd defendant'). The plaintiff's case in the
plaint was that as per the Muhammadan Law, the 1st defendant has 1/2 share while
the 2nd defendant like her has 1/4th share in the suit property.
1st defendant contested the suit on diverse grounds. Inter alia, a plea was
taken by him that plaintiff has been ousted of her right, title and possession in
1967 and the suit having been brought in 1990 was not only barred by limitation
but also he has acquired title by adverse possession as he has been holding
hostile 2possession over the property to the knowledge of the plaintiff. The
2nd defendant did not file any written statement and the suit proceeded against
trial court framed as many as four issues; issue no. 4 being whether 1st defendant
has proved that he has become owner of the suit property by adverse possession.
The trial court recorded the evidence and after hearing the advocates for the
plaintiff and the 1st defendant vide its judgment and decree dated October 18,
1993 declared that plaintiff and 2nd defendant were entitled to 1/4th share each
and the 1st defendant was entitled to 1/2 share in the suit property. The trial
court ordered for effecting partition by metes and bounds accordingly.
the judgment and decree of the trial court, the 1st defendant preferred first
appeal before the District Court, Osmanabad which was transferred to the Court of
Additional District Judge, Osmanabad for its disposal. The first appellate court
reversed the finding of the trial court on issue no.4 and held that the 1st defendant
became owner of the suit property by adverse possession and, accordingly,
allowed the first appeal on August 1, 2001 and set aside the judgment and
decree of the trial court.
plaintiff challenged the judgment and decree of the first appellate court in
the second appeal before the High Court. In the course of second appeal, 2nd defendant
died and her legal representatives were brought on record. The High Court
allowed the second appeal and, as noticed above, set aside the judgment and decree
of the first appellate court.
the judgment of the High Court that runs into eight foolscap pages does not
indicate that scope of second appeal as provided in Section 100 and Section 101
of the Code of Civil Procedure, 1908 (for short, `the Code') was kept in mind while
hearing the second appeal. In para 7 of the judgment, the High Court observed
thus: "I have minutely gone through both the judgments of the Courts below
only on the issue of adverse possession which is also a mixed question of law
High Court then proceeded to record the arguments of the counsel for the 1st defendant
(respondent no. 1 therein) in 4paragraph 8. Thereafter in paragraphs 9, 10 and
11 it was observed and held as follows : "
case of ouster is pleaded by Respondent No. 1 in the written statement stating
that after two years of her marriage sometime in the year 1967 both the sisters
asked for their share and it was denied to them.
when plead adverse possession it must be proved by the evidence. The suit property
is immovable property and there is no documentary evidence supporting the case of
the Respondent No. 1 that he is in exclusive possession of the agricultural
land and the same was held by him in his exclusive possession after death of
his father or from 1967. Only one document i.e. 7/12 extra of the year 1989-90 was
filed by Respondent No. 1 showing his possession and cultivation which is jointly
in the name of Respondent No. 1 and his wife. Crop statements are prepared every
year and 7/12 extract has a presumptive value for possession and cultivation of
agricultural land. Since there are no such crop statements of 7/12 extract filed
on record, adverse inference will have to be drawn against the Respondent No.
1. His exclusive or continuous possession is not established on record for a
period of over 12 years preceding to the filing of the suit. No case of ouster is
made out. Oral evidence of Vishnu Baburao Jadhav, witness No. 2, cannot be
accepted as evidence of possession for such long period and has been rightly rejected
and not considered by the trial court in the light of the evidence of Respondents.
So also case of adverse possession was dismissed by learned trial Court after going
through the evidence of Respondent No. 1.
11. Mere refusal to
give share will not give rise to claim adverse possession and thus it is seen that
learned appellate Court failed to appreciate the evidence on the point of demand
of share by the plaintiff from the Respondent No. 1 and further law on the
point of adverse possession in the light of the authorities referred above. In that
view of the matter, the impugned judgment of the 1st 5 appellate Court does not
sustain in law. The appeal deserves to be allowed. The judgment and decree of the
learned trial Court is hereby upheld and appeal is allowed with costs."10.
Section 100 of the Code reads as follows : "S.-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 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
11. Section 101 of
the Code provides that no second appeal shall lie except on the ground
mentioned in Section 100.
103 of the Code empowers High Court to determine any issue necessary for
disposal of the second appeal in the circumstances stated therein. Section 103
reads as under:- "S.103.- Power of High Court to determine issues of fact.
- In any second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal, - (a) which has
not been determined by the lower Appellate Court or both by the Court of first
instance and the lower Appellate Court, or (b) which has been wrongly
determined by such Court or Courts by reason of a decision on such question of law
as is referred to in section 100."
our view, the very jurisdiction of the High Court in hearing a second appeal is
founded on the formulation of a substantial question of law. The judgment of the
High Court is rendered patently illegal, if a second appeal is heard and
judgment and decree appealed against is reversed without formulating a substantial
question of law. The second appellate jurisdiction of the High Court under
Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code;
it is restricted to such substantial question or questions of law that may arise
from the judgment and decree appealed against. As a matter of law, a second appeal
is entertainable by the High Court only upon its satisfaction that a substantial
question of law is involved in the matter and its formulation thereof. Section 100
of the Code provides that the second appeal shall be heard on the question so formulated.
It is, however, open to the High Court to reframe substantial question of law or
frame substantial question of law afresh or hold that no substantial question of
law is involved at the time of hearing the second appeal but reversal of the judgment
and decree passed in appeal by a court subordinate to it in exercise of jurisdiction
under Section 100 of the Code is impermissible without formulating substantial question
of law and a decision on such question. This Court has been bringing to the notice
of the High Courts the constraints of Section 100 of the Code and the mandate
of the law contained in Section 101 that no second appeal shall lie except on the
ground mentioned in Section 100, yet it appears that the fundamental legal
position concerning jurisdiction of the High Court in second appeal is ignored and
overlooked time and again. The present appeal is unfortunately one of such
matters where High Court interfered with the judgment and decree of the first
appellate court in 8total disregard of the above legal position.
Ishwar Dass Jain (Dead) through LRs. v. Sohan Lal (Dead) by LRs.1, in paragraph
10 (page 441) of the Report, this Court stated : "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."
Roop Singh (Dead) through L.Rs., v. Ram Singh (Dead) through L.Rs.2, this Court
reminded the High Courts, in para 7 (page 713) of the report, that the second appellate
jurisdiction of High Court was confined to appeals involving substantial
question of law. This Court said : "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........".1
Chadat Singh v. Bahadur Ram and Ors.3, this Court set aside the judgment of the
High Court that was passed without formulating the substantial question of law.
In para 8 (page 361) of the Report, the Court said : "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."
above three judgments have been relied upon in Sasikumar and Ors. v. Kunnath
Chellappan Nair and Ors.4 and C.A. Sulaiman and Ors. v. State Bank of
Travancore, Alwayee and Ors.5 and this Court set aside the judgments of the High
Court and the matters were remanded to the High Court for disposal of second appeal
in accordance with law.18. Recently, in the case of Municipal Committee,
Hoshiarpur v. Punjab State Electricity Board and Ors.6, the above legal position
has been restated. This Court stated in paragraph 16 (page 225) of the Report
as under :3 (2004) 6 SCC 3594 (2005) 12 SCC 5885 (2006) 6 SCC 3926 (2010) 13
SCC 216 10 ".......The existence of a substantial question of law is a condition
precedent for entertaining the second appeal; on failure to do so, the judgment
cannot be maintained. The existence of a substantial question of law is a sine
qua non for the exercise of jurisdiction under the provisions of Section 100
CPC......" 19. In light of the above, the appeal is allowed and impugned judgment
of the High Court is set aside. The second appeal No. 528 of 2001, Bismillabi
v. Umerkhan and Ors., is restored to the file of the High Court for fresh
consideration in accordance with law. No order as to costs.
J. (R.M. Lodha)