Jj. Saldanha Vs. Antony M.
Saldanha  Insc 520 (8 May 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Karnataka High Court allowing the Second Appeal ( RSA No. 930 of 1991)
filed by the respondent.
Though many points are urged, primarily it was submitted that the Second
Appeal was allowed without formulating a substantial question of law.
In view of Section 100 of the Code of Civil Procedure, 1908 (in short
"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 (Dead) through LRs. v. Sohan Lal (Dead) through LRs.
(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
Yet again in Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs.
(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), Premabai v. Jnaneshwar Ramakrishna Patange and Ors.
(2003 AIR SCW 2922), Chadat Singh v. Bahadur Rama and Ors. (JT 2004 (6) SCC
296) and Mathakala Krishnaiah v. V. Rajagopal (JT 2004 (9) SCC 205). Recently
this Court has clarified the position in Shah Mansukhlal Chhanganial (Dead)
through LRs. v. Gohil Amarsing Govindbhai (Dead) through LRs. 2006 (13) SCALE
99, Ravi Construction Co. v. Somvanshi Arya Ksatriya Samaj and Ors. 2006 (9)
SCALE 174), Jawala Singh (Dead) by LRs. &
Ors. v. Jagat Singh (Dead) By LRs. & Ors. (JT 2006 (8) SC 483, C.A. Sulaiman
and Ors. v. State Bank of Travancore Alwayee and Ors. (AIR 2006 SC 2848.
In the circumstances, the impugned judgment is set aside. We remit the
matter to the High Court for disposal after formulating the substantial
question of law, if any, and in accordance with law. The appeal is disposed of
in the aforesaid terms with no order as to costs.
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