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CASE NO.: Appeal (civil)  1004 of 2003

PETITIONER: Jawala Singh (D) By Lrs.& Ors.

RESPONDENT: Jagat Singh (D) By Lrs. & Ors.

DATE OF JUDGMENT: 06/09/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T 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:

"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

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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, 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

"10. 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)

"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 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

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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.