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CASE NO.: Appeal (civil)  4903-05 of 2004

PETITIONER: Chadat Singh

RESPONDENT: Bahadur Ram and Ors.

DATE OF JUDGMENT: 03/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP ) Nos. 22808-22810/2002)

ARIJIT PASAYAT, J.

       Leave granted.

       As the only point on which 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, it is not necessary to deal with  the factual aspects in detail.  The second appeal and two miscellaneous  petitions were disposed of by a common judgment which form matrix of the  present appeals.   

       Respondent-Bahadur Ram filed a suit for specific performance against  9 defendants. The suit was decreed by the trial Court. However, the same  was upset by learned Additional District Judge, Kurukshetra . Bahadur Ram  filed Second Appeal No.594/1995 against the judgment of learned  Additional District Judge. By the impugned judgment the trial Court’s  judgment and decree have been restored and that of the first Appellate Court  was reversed.  

       Though various points were urged by learned counsel for the appellant  it is not necessary to go into those aspects in view of the limited scope of the  present appeals in view of the notice issued. There is no appearance on  behalf of the respondents.

       Mr. Mahabir Singh, 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 Code.  

In view of Section 100 of 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

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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 v. Sohan Lal (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 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:

       "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

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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)

       In the circumstances, the impugned judgment is set aside. We remit  these matters to the High Court for disposal in accordance with law. The  appeals are disposed of in the aforesaid terms with no order as to costs.