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CASE NO.: Appeal (civil)  5817 of 2006

PETITIONER: G. Susheela (D) Thr. L.Rs.                       .....    Appellants

RESPONDENT: M. Rajyalakshmi & Anr.                             .....    Respondents

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.1715 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 respondents instituted a suit O.S. No.572 of 1989 in  the Court of VI Assistant Judge, City Civil Court, Hyderabad,  against the appellants for perpetual injunction restraining the  appellants from interfering with the peaceful possession of suit  land admeasuring Ac.1.25 guntas (i.e. 65 guntas) in Survey  No.29 in village Theegalguda, Mandal Charminar, Hyderabad  Distt., Andhra Pradesh.           The suit was decreed by the trial court.  The appellants  carried the matter in appeal being A.S. No.249 of 1996 to the  Court of the Additional Chief Judge, City Civil Court,  Hyderabad.  The learned Additional Chief Judge allowed the  appeal and set aside the judgment and decree of the trial  court.  Being aggrieved against the judgment of the First  Appellate Court, the respondents filed Second Appeal No.523  of 2001 in the High Court of Judicature, Andhra Pradesh at  Hyderabad.  By the impugned judgment, the Second Appeal  was allowed and the judgment of the First Appellate Court was  reversed.                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. C. S. Rajan, learned senior counsel for the  appellants, 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.

       Mr. C. Mukund, learned counsel for the respondents,  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

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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.  Kunnath Chellappan Nair & Ors. [(2005) 12 SCC 588].            Under the circumstances, the impugned judgment dated  25.08.2005 passed by the High Court of Judicature, Andhra  Pradesh at Hyderabad in Second Appeal, is set aside.  We

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remit the matter to the High Court for disposal of Second  Appeal No.523 of 2001 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.