& Ors Vs. State Bank of Travancore, Alwayee & Ors  Insc 449 (25 July 2006)
Pasayat & S.H. Kapadia Arijit Pasayat, J.
in these appeals is to the judgment rendered by a learned Single Judge of the Kerala
High Court allowing the Second Appeals filed by the respondents by a common
judgment. By the impugned judgment the judgment and decree of the Trial Court
as well as the First Appellate Court were set aside.
not necessary to set out the factual details in view of the limited submissions
made by learned counsel for the parties.
counsel for the appellants submitted that the High Court was not justified in
disposing of the Second Appeals without formulating the substantial question or
questions of law, as mandated by Section 100 of the Code of Civil Procedure,
1908 (in short 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.
That is why the Second Appeals were allowed.
further submitted that though no substantial question of law was formulated
before the Second Appeals were 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 follows:
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.
Dass Jain v. Sohan Lal [2000 (1) SCC 434] this Court in para 10 has stated
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].
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 Sasikumar 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 respondents 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 question.
the circumstances the impugned judgment is set aside, we remit the matter to
the High Court for disposal in accordance with law. The appeals are disposed of
on the aforesaid terms with no order as to costs.