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CASE NO.: Appeal (civil)  5818 of 2006

PETITIONER: Chilakamarthi Mohana Rao                             .....       Appellant

RESPONDENT: Patibanda Soma Sundara Rao                       .....    Respondent

DATE OF JUDGMENT: 14/12/2006

BENCH: G. P. Mathur & Lokeshwar Singh Panta

JUDGMENT: JUDGMENT

O R D E R [Arising out of S. L. P. (C) No.2280 of 2006]

       Special leave granted.

       As the only point on which the 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 of Judicature, Andhra Pradesh at  Hyderabad, it is not necessary to deal with the factual aspects  in detail.         The respondent-Patibanda Soma Sundara Rao filed a suit  for cancellation of the sale deed dated 21.12.1981, executed by  his father in favour of the appellant-Chilakamarthi Mohana  Rao and another sale deed dated 21.12.1981 in favour of the  minor son of the appellant and for consequential possession of  the properties involved in the said two sale deeds.  During the  pendency of the suit, the parties had agreed to refer the matter  to an Arbitrator.  The Arbitrator made an Award (Ex. A2) and  submitted the same before the trial court.  The appellant took  an objection that the Award of the Arbitrator is fraudulent and  he had never agreed to the terms and conditions incorporated  in the Award.  The trial court, while recording the compromise  in terms of the said Award, decreed the suit declaring the sale  deed executed in favour of the appellant as sham transaction  and accordingly cancelled the same.  Aggrieved by the  impugned judgment of the trial court, the appellant-defendant  No.1 filed First Appeal before the 1st Additional Senior Civil  Judge, Vijaywada.  The First Appellate Court, while  appreciating the entire evidence, allowed the appeal and set  aside the decree and judgment of the trial court.  The  respondent preferred the Second Appeal No. 650 of 2003  against the judgment of the First Appellate Court.  By the  impugned judgment, the High Court allowed the appeal, set  aside the judgments of both the courts below and remanded  the suit to the trial court for fresh disposal within a period of  one year from the date of receipt of a copy of the judgment.         Hence, this appeal by special leave.         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 notice issued in the present appeal.         Mr. B. Sridhar, 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

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the Code.         Mr. K. Shivraj Choudhuri, learned counsel for the  respondent, submitted that though the High Court has not  formulated the questions of law, as required, yet on analyzing  the evidence, it concluded that the view expressed by the  courts below were not tenable in law.         Section 100 of the Code deals with ‘Second Appeal’.  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 a question  of law, if any, so formulated.  That being so, the judgment  cannot be sustained.              In Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434],  this Court in para 10 has stated thus: (SCC p.441) "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: (SCC p.713) "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-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 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 \026 (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], Chadat Singh v. Bahadur  Ram & Ors. [(2004) 6 SCC 359]; Sasikumar & Ors. v.

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Kunnath Chellappan Nair & Ors. [(2005) 12 SCC 588].            Under the circumstances, the impugned judgment dated  02.11.2005 passed by the High Court of Judicature, Andhra  Pradesh at Hyderabad, is set aside.  We remit the matter to  the High Court for disposal of Second Appeal No.650 of 2003  in accordance with law.  The appeal is disposed of on the  above-said terms with no order as to costs.         Since the matter is pending for long, we request the High  Court to dispose of the appeal as early as possible.