Chadat Singh Vs. Bahadur
Ram & Ors [2004] Insc 423 (3 August 2004)
Arijit Pasayat & C.K.
Thakker (Arising out of Slp ) Nos. 22808-22810/2002) Arijit Pasayat, J.
Leave granted.
As the only point on which notice was issued related to the desirability of
disposing of the Second Appeal in terms of Section 100 of the Code of Civil
Procedure, 1908 (in short the 'Code') without formulating the substantial
question of law by the High Court, it is not necessary to deal with the factual
aspects in detail. The second appeal and two miscellaneous petitions were
disposed of by a common judgment which form matrix of the present appeals.
Respondent-Bahadur Ram filed a suit for specific performance against 9
defendants. The suit was decreed by the trial Court. However, the same was
upset by learned Additional District Judge, Kurukshetra . Bahadur Ram filed
Second Appeal No.594/1995 against the judgment of learned Additional District
Judge. By the impugned judgment the trial Court's judgment and decree have been
restored and that of the first Appellate Court was reversed.
Though various points were urged by learned counsel for the appellant it is
not necessary to go into those aspects in view of the limited scope of the
present appeals in view of the notice issued. There is no appearance on behalf
of the respondents.
Mr. Mahabir Singh, learned counsel for the appellant submitted that the High
Court was not justified in disposing of the Second Appeal without formulating
the substantial question or questions of law as mandated by Section 100 of the
Code.
In view of Section 100 of 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 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." 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 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) In the circumstances, the impugned
judgment is set aside. We remit these matters to the High Court for disposal in
accordance with law. The appeals are disposed of in the aforesaid terms with no
order as to costs.
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