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CASE NO.: Appeal (civil)  301 of 2007

PETITIONER: Mahavir

RESPONDENT: Lakhmi & Anr

DATE OF JUDGMENT: 22/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising Out of SLP(C) Nos. 25897-25898 of 2004)

Dr. ARIJIT PASAYAT, J.

       Heard learned counsel for the parties.

       Leave granted.

       These appeals are directed against the judgment passed  by learned Single Judge of Punjab and Haryana High Court  allowing the Second Appeal filed by the defendant and  rejecting the application for review.

The plaintiff has filed the present appeals against the  aforesaid orders.

Though several points were urged in support of the  appeals, main ground was that the Second appeal was allowed  without formulating a question of law.

In view of Section 100 of the Code of Civil Procedure,  1908 (in short the ’Code’)  the memorandum of appeal shall  precisely state substantial question or questions of law  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 be heard on the question so formulated as stated in sub- section (5) of Section 100.  

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

       "Section 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

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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  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

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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 Kanahaiyalal and  Ors. v. Anupkumar and Ors. (2003 (1) SCC 430) and Ram  Sakhi Devi (Smt.) v. Chhatra Devi and Others (2005 (6) SCC  181).

       The matter is remitted to the High Court, which shall  formulate substantial questions of law, if any, and then deal  with the matter. Needless to say if there is/are question(s) of  law, the appeal has to be dismissed. We express no opinion in  that regard.  

       Appeals are allowed without any orders as to costs.