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CASE NO.: Appeal (civil)  1187 of 2007

PETITIONER: M/s. Wyawahare & Sons and Ors

RESPONDENT: Madhukar Raghunath Bhave

DATE OF JUDGMENT: 07/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 3711 /2005)

Dr. ARIJIT PASAYAT, J.  

       Leave granted.         Challenge in this appeal is to the order passed by the  learned Single Judge of the Bombay High Court allowing the  second appeal filed by the respondent under Section 100 of  the Code of Civil Procedure, 1908 (in short ’CPC’).

       Factual background in a nutshell is as follows:         The respondent-plaintiff filed a Special civil suit bearing  No.2 of 1986 in the Court of Civil Judge, Sr. Division, Buldana  against the appellants-defendants.  The Trial Court by the  judgment and order dated 19.9.1987 partially decreed the  suit.  Aggrieved by the judgment and decree of the Trial court,  the appellants-defendants preferred an appeal in the Court of  Additional District Judge, Buldana.  By judgment and order  dated 28.9.1990 the first appellate court allowed the appeal  and set aside the decree passed by the Trial Court.  The  respondent-plaintiff preferred a second appeal before the High  Court of Bombay, Nagpur Bench.  By the impugned judgment  the learned Single Judge allowed the second appeal.

Though many points have been urged  in support of the  appeal, the primary stand of the learned counsel for the  appellants is that the second appeal was allowed without  framing any substantial question of law as mandated by  Section 100 CPC.  Learned counsel for the respondent  submitted that though the High Court’s judgment does not  show that any substantial question of law was framed yet the  learned Single Judge at the time of admission of the second  appeal had referred to certain points urged.

       Section 100 of CPC deals with "Second Appeal". The  provision reads as follows:

       "Section 100-Second Appeal: (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.

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(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

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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 and Ors.  v. Anupkumar and Ors. (2003(1) SCC 430), Mathakala  Krishnaiah v. V. Rajagopal (2004(10) SCC 676), Smt. Ram  Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167),  Sasikumar & Ors. v. Kunnath Chellappan Nair & Ors.  (2005(12) SCC 588), Gian Dass v. The Gram Panchayat Village  Sunner Kalan & Ors. (2006 (6) SCC 271), Shah Mansukhlal  Chhaganial (d) through Lrs. V. Gohil Amarsing Govindbhai (d)  through Lrs. (2006(13) SCALE 99).

The appeal stands disposed of in the above terms. There  will be no order as to costs.