Dass Vs. The Gram Panchayat, Village Sunner Kalan & Others  Insc 440 (21 July 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) No. 11715 of 2005) ARIJIT PASAYAT, J.
appeal relates to a judgment delivered by a learned Single Judge of the Punjab and Haryana High Court in Regular
Second Appeal No. 895 of 1984. The Second Appeal was filed by the defendants,
in a suit for possession. The suit had been decreed by both the trial court and
the first appellate court on the ground that the plaintiff (appellant) herein
is the Saunjidar of the land in dispute and he had been dispossessed forcibly
and illegally. The High Court held that when a person is claiming a title,
right or interest in the property in dispute either being a owner or a
saunjidar or tenant, then the jurisdiction of the civil court is barred.
Saunjidar right is an interest claimed by the plaintiff-the appellant herein.
the civil court cannot adjudicate upon the matter.
only the Collector under Section 11 of the Punjab Village Common Lands
(Regulation) Act, 1961 (hereinafter referred to as the 'Act') who can decide
whether the plaintiff had any saunjidar rights in the property in dispute.
Accordingly the appeal was allowed, judgment and decree passed by the courts
below were set aside and the suit of the plaintiff-appellant herein were
several points were urged in support of the appeal, the basic issue which was
urged was that the Second Appeal in terms of Section 100 of the Code of Civil
Procedure, 1908 (in short the 'Code') has been disposed of without formulating
substantial question of law by the High Court. It is, therefore, not necessary
to deal with the factual aspects in detail.
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.
counsel for the respondents submitted that though the High Court has not
formulated the questions of law as required, yet on analyzing the evidence, it
concluded that the views expressed by the courts below were not tenable in law,
and the civil court had no jurisdiction to deal with the suit.
further submitted that though no substantial question of law was formulated
before the Second Appeal was adjudicated, yet that is permissible, because
proviso to sub Section (5) of Section 100 permits the High Court to decide a
second appeal on a different substantial question of law subject to recording
100 of the Code deals with "second appeal". The provision reads 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.
An appeal may
lie under this section from an appellate decree passed ex-parte.
In an appeal
under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
Where the High
Court is satisfied that a substantial question of law is involved in any case,
it shall formulate that question.
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
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.
Ishwar Dass Jain v. Sohan Lal [2000 (1) SCC 434] this Court in para 10 has
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:
"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 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 Page 1532
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 v. Anupkumar [2003 (1) SCC 430].
Chadat Singh v. Bahadur Ram and Ors. [2004 (6) SCC 359], it was observed thus:
"In view of
Section 100 of the Code the memorandum of appeal shall precisely state
substantial question or questions involved in the appeal as required under
Sub-section (3) of Section100. 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." The
position was highlighted by this Court in Joseph Severane and Others v. Benny
Mathew and Others [2005 (7) SCC 667].
and Others v. Kunnath Chellappan Nair and Others. [2005 (12) SCC 588].
plea about proviso to sub-section (5) of Section 100 instead of supporting the
stand of the respondent rather goes against them. The proviso is applicable
only when any substantial question of law has already been formulated and it
empowers the High Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law. The expression "on any other substantial
question of law" clearly shows that there must be some substantial
question of law already formulated and then only another substantial question
of law which was not formulated earlier can be taken up by the High Court for
reasons to be recorded, if it is of the view that the case involves such
the circumstances the impugned judgment is set aside, we remit the matter to
the High Court so far as it relates to Second Appeal No. 895 of 1984 for
disposal in accordance with law. The appeal is disposed of on the aforesaid
terms with no order as to costs.