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CASE NO.: Appeal (civil) 1117  of  2001

PETITIONER: SANTOSH HAZARI

       Vs.

RESPONDENT: PURUSHOTTAM TIWARI (DEAD) BY LRS.

DATE OF JUDGMENT:       08/02/2001

BENCH: CJI, R.C. Lahoti, & Briijesh Kumar.

JUDGMENT:

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R.C. Lahoti, J.

Leave granted.

   On  4.3.1983,  the plaintiff-appellant filed a suit  for declaration of title and recovery of possession and issuance of permanent preventive injunction restraining the defendant from  interfering with the possession of the plaintiff  over the  suit  property  described as khasra No.41/1  area  1.09 acres  (0.441  hectares)  situated   in  Village   Patharia, District  Damoh.  According to the plaintiff, the  defendant had illegally dispossessed the plaintiff from his possession over  110x80  ft.  area of land out of the suit property  on 20.8.1981.   The  defendant in his written statement  denied all  material  averments and in addition submitted that  the defendant  has been in possession of the suit property since 1940-41,  i.e.   since the times of his grand  father.   The suit  filed by the plaintiff was alleged to have been barred by  limitation  in view of the same having been  filed  more than  12  years  after  the date  of  dispossession  of  the plaintiff.  A plea of the defendant having acquired title by adverse possession was also raised in the written statement.

   The   trial  Court,  on  an   evaluation  of  oral   and documentary  evidence  adduced  by the parties,  found  that ownership  in the suit property vested in the plaintiff  and the  defendant  had forcibly occupied the disputed  area  of 110x80  ft.  sometime in the year 1980-81.  The  defendants plea  of adverse possession was negatived and the suit filed by  the  plaintiff  was held to have been filed  within  the period  of  limitation.   On  these findings  the  suit  was decreed in its entirety.

   The   defendant  preferred  an   appeal.   The   learned additional  district Judge held that in so far as  ownership over  the  suit  land is concerned, the same vested  in  the plaintiff.   However,  he found that the possession  of  the land  was given to the plaintiff by the State Government  on 6.11.68  but  the plaintiff has not shown to have taken  any

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steps for dispossessing the defendant and the plea raised by the  plaintiff of the defendant having forcibly occupied the land  in dispute on 20.8.1981 did not appear to be  tenable. On  these findings the appeal was allowed and in reversal of the  judgment  and  decree of the trial Court the  suit  was directed to be dismissed.

   The  plaintiff preferred a second appeal which has  been dismissed  in limine by the High Court passing a brief order that  the matter stood concluded by findings of fact and  no substantial  question  of law arose for determination.   The aggrieved plaintiff has filed this appeal by special leave.

   On 4.5.1999 this Court directed a notice to be issued to the  defendant-respondent on the limited question as to  why the  matter  should  not be remanded to the High  Court  for deciding the appeal after framing the question of law.

   We  have  heard the learned counsel for the parties  and perused  the  judgments  of the trial Court  and  the  first appellate Court.  We have also perused the application dated 12.1.2001   filed   in  this  Court   on   behalf   of   the plaintiff-appellant setting out the substantial questions of law  which in his submission arose in the case and on  which the High Court ought to have heard the appeal.

   What  is  a substantial question of law involved in  the case?   Section  100  of the Code of Civil  Procedure,  1908 (hereinafter,  the code, for short) as substituted by  the Code  of  Civil Procedure Amendment Act, 1976 (104 of  1976) w.e.f.  1.2.1977 reads as under:-

               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.

   (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.

   The  High  Court cannot proceed to hear a second  appeal without formulating the substantial question of law involved

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in  the  appeal and if it does so it acts illegally  and  in abnegation  or  abdication of the duty cast on  Court.   The existence of substantial question of law is the sine qua non for  the  exercise  of the jurisdiction  under  the  amended Section  100 of the Code.  [See Kshitish Chandra Purkait Vs. Santosh  Kumar Purkait & Ors., (1997) 5 SCC 438, Panchugopal Barua  Vs.   Umesh  Chandra Goswami, (1997) 4  SCC  713  and Kondila  Dagadu  Kadam Vs.  Savitribai Sopan Gujar  &  Ors., (1999) 3 SCC 722].

   At  the  very outset we may point out that the  memo  of second  appeal  filed by the plaintiff-appellant before  the High  Court suffered from a serious infirmity.  Section  100 of  the Code, as amended in 1976, restricts the jurisdiction of  the  High  Court  to  hear   a  second  appeal  only  on substantial  question  of  law involved in the  case.   An obligation  is  cast on the appellant to precisely state  in the  memorandum  of appeal the substantial question  of  law involved  in the appeal and which the appellant proposes  to urge  before  the  High  Court.   The  High  Court  must  be satisfied  that a substantial question of law is involved in the  case and such question has then to be formulated by the High  Court.   Such  questions or question may  be  the  one proposed by the appellant or may be any other question which though  not proposed by the appellant yet in the opinion  of the  High  Court  arises  as involved in  the  case  and  is substantial  in  nature.  At the hearing of the appeal,  the scope  of  hearing  is  circumscribed  by  the  question  so formulated  by the High Court.  The respondent is at liberty to  show that the question formulated by the High Court  was not  involved  in  the  case.  In  spite  of  a  substantial question  of law determining the scope of hearing of  second appeal  having been formulated by the High Court, its  power to hear the appeal on any other substantial question of law, not  earlier formulated by it, is not taken away subject  to the  twin  conditions being satisfied:  (i) the  High  Court feels  satisfied  that the case involves such question,  and (ii)   the  High  Court  records   reasons  for   its   such satisfaction.

   Even  under  the old Section 100 of the  Code  (pre-1976 amendment), a pure finding of fact was not open to challenge before  the  High Court in second appeal.  However  the  Law Commission  noticed a plethora of conflicting judgments.  It noted  that in dealing with second appeals, the Courts  were devising and successfully adopting several concepts such as, a  mixed  question of fact and law, a legal inference to  be drawn  from  facts proved, and even the point that the  case has  not been properly approached by the Courts below.  This was  creating confusion in the minds of the public as to the legitimate  scope  of  second  appeal under  S.100  and  had burdened  the High Courts with an unnecessarily large number of second appeals.  Section 100 was, therefore, suggested to be  amended so as to provide that the right of second appeal should  be  confined  to cases where a question  of  law  is involved  and  such  question of law is a  substantial  one. (See   Statement  of  Objects   and  Reasons).   The  Select Committee to which the Amendment Bill was referred felt that the  scope  of second appeals should be restricted  so  that litigations  may not drag on for a long period.  Reasons, of course,  are  not required to be stated for formulating  any question  of law under sub-section(4) of Section 100 of  the Code;   though such reasons are to be recorded under proviso to  sub-section  (5) while exercising power to hear  on  any other  substantial  question  of  law, other  than  the  one

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formulated under sub- section(4).

   The  phrase substantial question of law, as  occurring in  the amended Section 100 is not defined in the Code.  The word  substantial, as qualifying question of law, means  - of  having  substance,  essential,  real,  of  sound  worth, important  or  considerable.   It  is to  be  understood  as something  in  contradistinction  with -  technical,  of  no substance  or consequence, or academic merely.  However,  it is  clear that the Legislature has chosen not to qualify the scope  of  substantial  question of law by  suffixing  the words of general importance as has been done in many other provisions  such  as  Section  109 of the  Code  or  Article 133(1)(a)  of the Constitution.  The substantial question of law  on  which  a  second appeal shall  be  heard  need  not necessarily  be  a  substantial question of law  of  general importance.   In Guran Ditta & Anr.  Vs.  T.  Ram Ditta, AIR 1928  Privy Council 172, the phrase substantial question of law  as  it  was employed in the last clause  of  the  then existing  Section  110 of the C.P.C.  (since omitted by  the Amendment  Act,  1973) came up for consideration  and  Their Lordships  held that it did not mean a substantial  question of  general  importance  but a substantial question  of  law which  was involved in the case as between the parties.   In Sir  Chunilal  V.   Mehta  & Sons  Ltd.   Vs.   The  Century Spinning  and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the   Constitution  Bench  expressed   agreement  with   the following view taken by a Full Bench of Madras High Court in Rimmalapudi  Subba  Rao Vs.  Noony Veeraju, ILR 1952  Madras 264:-

   ..when  a question of law is fairly arguable,  where there  is room for difference of opinion on it or where  the Court  thought  it necessary to deal with that  question  at some  length and discuss alternative view, then the question would  be a substantial question of law.  On the other  hand if  the question was practically covered by the decision  of the highest Court or if the general principles to be applied in  determining  the question are well settled and the  only question  was of applying those principles to the particular fact  of the case it would not be a substantial question  of law.

   and  laid  down the following test as proper  test,  for determining  whether a question of law raised in the case is substantial:-

    The  proper test for determining whether a question  of law raised in the case is substantial would, in our opinion, be  whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council  or  by  the  Federal  Court or  is  not  free  from difficulty or calls for discussion of alternative views.  If the  question is settled by the highest Court or the general principles  to  be applied in determining the  question  are well  settled and there is a mere question of applying those principles  or  that the plea raised is palpably absurd  the question would not be a substantial question of law.

   In  Deputy  Commr.,  Hardoi, in charge Court  of  Wards, Bharawan Estate Vs.  Rama Krishna Narain & Ors., AIR 1953 SC

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521,  also it was held that a question of law of  importance to  the parties was a substantial question of law  entitling the appellant to certificate under (the then) Section 110 of the Code.

   A  point of law which admits of no two opinions may be a proposition  of law but cannot be a substantial question  of law.   To  be  substantial,  a question  of  law  must  be debatable,  not  previously settled by law of the land or  a binding  precedent, and must have a material bearing on  the decision  of the case, if answered either way, in so far  as the  rights of the parties before it are concerned.  To be a question  of law involving in the case there must be first a  foundation for it laid in the pleadings and the  question should  emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question  of law for a just and proper decision of the case. An  entirely new point raised for the first time before  the High  Court is not a question involved in the case unless it goes  to the root of the matter.  It will, therefore, depend on  the  facts  and  circumstance of  each  case  whether  a question  of  law is a substantial one and involved  in  the case, or not;  the paramount overall consideration being the need   for   striking  a   judicious  balance  between   the indispensable  obligation  to do justice at all  stages  and impelling  necessity of avoiding prolongation in the life of any lis.

   A  perusal of the judgment of the trial Court shows that it  has  extensively  dealt with the  oral  and  documentary@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ evidence  adduced by the parties for deciding the issues  on@@ JJJJJJJJJJJJJJJJJJJJ which  the  parties  went to trial.  It also found  that  in support  of  his plea of adverse possession on the  disputed land, the defendant did not produce any documentary evidence while  the  oral  evidence  adduced  by  the  defendant  was conflicting  in nature and hence unworthy of reliance.   The first  appellate  Court  has,  in  a  very  cryptic  manner, reversed   the  finding  on   question  of  possession   and dispossession  as  alleged by the plaintiff as also  on  the question  of adverse possession as pleaded by the defendant. The  appellate  Court has jurisdiction to reverse or  affirm the findings of the trial Court.  First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and  law.   The  judgment  of   the  appellate  Court  must, therefore,  reflect  its conscious application of mind,  and record  findings  supported  by reasons, on all  the  issues arising along with the contentions put forth, and pressed by the  parties for decision of the appellate Court.  The  task of  an  appellate Court affirming the findings of the  trial Court  is an easier one.  The appellate Court agreeing  with the  view of the trial Court need not restate the effect  of the  evidence  or reiterate the reasons given by  the  trial Court;   expression of general agreement with reasons  given by  the  Court,  decision of which is  under  appeal,  would ordinarily  suffice  (See  Girijanandini Devi  &  Ors.   Vs. Bijendra  Narain  Choudhary, AIR 1967 SC 1124).   We  would, however,  like  to sound a note of caution.   Expression  of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.  While writing  a  judgment  of reversal the appellate  Court  must remain  conscious of two principles.  Firstly, the  findings

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of  fact  based  on conflicting evidence arrived at  by  the trial  Court  must weigh with the appellate Court,  more  so when the findings are based on oral evidence recorded by the same  presiding  Judge  who   authors  the  judgment.   This certainly  does not mean that when an appeal lies on  facts, the appellate Court is not competent to reverse a finding of fact  arrived at by the trial Judge.  As a matter of law  if the  appraisal  of the evidence by the trial  Court  suffers from  a  material irregularity or is based  on  inadmissible evidence or on conjectures and surmises, the appellate Court is  entitled  to  interfere with the finding  of  fact  (See Madhusudan  Das Vs.  Smt.  Narayani Bai & Ors., AIR 1983  SC 114).   The rule is __ and it is nothing more than a rule of practice  __ that when there is conflict of oral evidence of the  parties on any matter in issue and the decision  hinges upon the credibility of witnesses, then unless there is some special  feature about the evidence of a particular  witness which  has  escaped the trial Judges notice or there  is  a sufficient  balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not  interfere  with  the finding of the trial  Judge  on  a question   of  fact.(See  Sarju   Pershad  Ramdeo  Sahu  Vs. Jwaleshwari  Pratap  Narain Singh & Ors., AIR 1951 SC  120). Secondly,  while  reversing a finding of fact the  appellate Court  must  come  into close quarters  with  the  reasoning assigned  by the trial Court and then assign its own reasons for arriving at a different finding.  This would satisfy the Court  hearing  a  further appeal that the  first  appellate Court  had discharged the duty expected of it.  We need only remind   the  first  appellate   Courts  of  the  additional obligation cast on them by the scheme of the present Section 100  substituted  in  the Code.  The first  appellate  Court continues,  as  before, to be a final Court of facts;   pure findings  of  fact remain immune from challenge  before  the High  Court in second appeal.  Now the first appellate Court is  also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before  the  High  Court  in   second  appeal  because   the jurisdiction  of  the  High  Court  has  now  ceased  to  be available  to  correct  the errors of law or  the  erroneous findings  of the first appellate Court even on questions  of law unless such question of law be a substantial one.

   Reverting  back to the facts of the case at hand,  prima facie  we  find the first appellate Court did not  discharge the  duty  cast on it as a Court of first appeal.  The  High Court having noticed failure on the part of the appellant in not  discharging  the  statutory obligation cast on  him  by sub-section  (3)  of Section 100 of the Code, on account  of the  substantial  question  of law involved  in  the  appeal having  not  been  stated,  much   less  precisely,  in  the memorandum  of  second appeal, ordinarily an opportunity  to frame  such  question  should  have  been  afforded  to  the appellant unless the deficiency was brought to the notice of the  appellant previously by the High Court Registry or  the court  and  yet the appellant had persisted in his  default. That   was  not  done.   In   our  opinion,  the   following substantial  question  of law does arise as involved in  the case and worth being heard by the High Court:-

   Whether  on  the pleadings and the material  brought  on record by the defendant, the first appellate Court was right in  holding that the case of adverse possession was made out by  the  defendant and the suit filed by the  plaintiff  was liable to be dismissed as barred by time under Article 65 of

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the  Limitation  Act,  1963, more so when such  finding  was arrived at in reversal of the findings of the trial Court?

   The appeal is allowed.  The case is remitted back to the High  Court  for  hearing  and deciding  the  second  appeal afresh.   We  make it clear that we have not  expressed  any opinion either way on any of the issues arising for decision in  the  case.  We also make it clear that our  framing  the question  of law involved in the appeal shall not take  away the  jurisdiction  of  the High Court vesting  in  it  under provisio  to sub-section(5) of Section 100 of the C.P.C.  to formulate any other question of law involved in the case The second   appeal  shall  be  decided   by  the   High   Court uninfluenced  by  any of the observations  made  hereinabove which  have been made solely to support our opinion that the appeal did not merit a summary dismissal by the High Court.

   The  appeal  stands  disposed  of in  the  terms  stated hereinabove.  No order as to the costs.@@               JJJJJJJJJJJJJJJJJJJJJJJJJ