Jawala
Singh & Ors Vs. Jagat Singh & Ors [2006] Insc 564 (6 September 2006)
Arijit
Pasayat & S.H. Kapadia
With
Civil Appeal No. 3938 of 2006 ARIJIT PASAYAT, J.
In
these appeals challenge is to the judgment rendered by a learned Singh Judge of
the Punjab and Haryana High Court allowing the Second Appeal filed under
Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC'). The
Second appeal was partially allowed by setting aside the judgment and decree of
the First appellate Court in the plaintiff's suit for possession to the extent
of land measuring 36 kanals comprised in Khasra Nos. 646,647 and 648.
Though
many points were urged basically it was urged that the Second appeal was
allowed without formulating any question of law for adjudication. This
according to appellants rendered the judgment vulnerable.
Learned
counsel for the respondents submitted that though specific question of law was
not formulated, the High Court analysed the evidence and kept to the correct
conclusion.
Section100
of the Code deals with "second appeal".
The
provision reads as follows:
-
-
"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.
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An appeal may
lie under this section from an appellate decree passed ex parte.
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In an appeal
under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
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Where the High
Court is satisfied that a substantial question of law is involved in any case,
it shall formulate that question.
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The appeal shall
be heard on the question so formulated and the respondent shall, at the hearing
of the appeal, he 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 show that any substantial question of law has been
formulated or that the second appeal was heard on a question, if any, so
formulated. That being so, the judgment cannot be maintained.
In Ishwar
Dass Jain v. Sohan La1 this Court in para 10 has stated
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"Now under Section 100 CPC, after
the 1976 Amendment, it is essential for the High Court to formulate a
substantial question of law it is not permissible to reverse the judgment of
the first appellate court without doing so." Yet again in Roop Singh v.
Ram Singh this Court has expressed that jurisdiction of a High Court is
confined to appeals involving substantial question of law. Para 7 of the said judgment reads: (SCC p. 713, para 7)
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"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 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].
In Chadat
Singh v. Bahadur Ram [(2004) 6 SCC 359] it was observed thus: (SCC p. 360)
"6. 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 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 he 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], Sasikumar and Others
v. Kunnath Chellappan Nair and Others [2005(12) SCC 588] and Gian Dass v. The
Gram Panchayat, Village Sunner Kalan & Ors. [2006 (5) Supreme 776 ].
Under
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. 1832 of 1979 for
disposal in accordance with law. The appeals are disposed of on the aforesaid
terms with no order as to costs.
Since
the matter is pending since long, we request the High Court to dispose of the
appeal as early as practicable.
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