Mohana Rao Vs. Patibanda Soma Sundara Rao  Insc 962 (14 December 2006)
P. Mathur & Lokeshwar Singh Panta
O R D
E R [Arising out of S. L. P. (C) No.2280 of 2006]
only point on which the 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 of Judicature, Andhra Pradesh at Hyderabad,
it is not necessary to deal with the factual aspects in detail.
respondent-Patibanda Soma Sundara Rao filed a suit for cancellation of the sale
deed dated 21.12.1981, executed by his father in favour of the appellant-Chilakamarthi
Mohana Rao and another sale deed dated 21.12.1981 in favour of the minor son of
the appellant and for consequential possession of the properties involved in
the said two sale deeds. During the pendency of the suit, the parties had
agreed to refer the matter to an Arbitrator. The Arbitrator made an Award (Ex.
A2) and submitted the same before the trial court. The appellant took an
objection that the Award of the Arbitrator is fraudulent and he had never
agreed to the terms and conditions incorporated in the Award. The trial court,
while recording the compromise in terms of the said Award, decreed the suit
declaring the sale deed executed in favour of the appellant as sham transaction
and accordingly cancelled the same. Aggrieved by the impugned judgment of the
trial court, the appellant-defendant No.1 filed First Appeal before the 1st
Additional Senior Civil Judge, Vijaywada. The First Appellate Court, while
appreciating the entire evidence, allowed the appeal and set aside the decree
and judgment of the trial court. The respondent preferred the Second Appeal No.
650 of 2003 against the judgment of the First Appellate Court. By the impugned
judgment, the High Court allowed the appeal, set aside the judgments of both
the courts below and remanded the suit to the trial court for fresh disposal
within a period of one year from the date of receipt of a copy of the judgment.
this appeal by special leave.
various points were urged by learned counsel for the appellant, it is not
necessary to go into those aspects in view of the limited notice issued in the
Sridhar, 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
Shivraj Choudhuri, learned counsel for the respondent, submitted that though
the High Court has not formulated the questions of law, as required, yet on
analyzing the evidence, it concluded that the view expressed by the courts
below were not tenable in law.
100 of the Code deals with `Second Appeal'. 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 a question of law, if
any, so formulated. That being so, the judgment cannot be sustained.
Dass Jain v. Sohan Lal [(2000) 1 SCC 434], this Court in para 10 has stated
thus: (SCC p.441) "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: (SCC p.713) "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-finding 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 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 Kanhaiyalal v. Anupkumar [(2003) 1 SCC 430], Chadat Singh v. Bahadur Ram
& Ors. [(2004) 6 SCC 359]; Sasikumar & Ors. v. Kunnath Chellappan Nair
& Ors. [(2005) 12 SCC 588].
the circumstances, the impugned judgment dated 02.11.2005 passed by the High
Court of Judicature, Andhra Pradesh at Hyderabad, is set aside. We remit the
matter to the High Court for disposal of Second Appeal No.650 of 2003 in
accordance with law. The appeal is disposed of on the above-said terms with no
order as to costs.
matter is pending for long, we request the High Court to dispose of the appeal
as early as possible.