15 October 2004
Supreme Court
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MATHAKALA KRISHNAIAH Vs V. RAJAGOPAL

Case number: C.A. No.-006784-006785 / 2004
Diary number: 12623 / 2004
Advocates: Vs S. THANANJAYAN


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CASE NO.: Appeal (civil)  6784-6785 of 2004

PETITIONER: Mathakala Krishnaiah

RESPONDENT: V. Rajagopal  

DATE OF JUDGMENT: 15/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of SLP ) Nos. 11653-11654 of 2004)

ARIJIT PASAYAT, J

       Leave granted.

       By the impugned judgment a learned Single Judge of the Andhra  Pradesh High Court reversed the Appellate Court’s judgment and decree  passed by learned IInd Additional District Judge, Nellore. The present  respondent was the plaintiff in the original suit which was on the file  of Ist Additional District Munsif Court, Nellore. He was the appellant  before the High Court. Though the trial Court had decided in favour of  the plaintiff (respondent herein), as noted above the first Appellate  Court reversed the judgment and decree of the trial Court and the suit  filed by the plaintiff was dismissed. The plaintiff filed Second Appeal  before the High Court which was disposed of by the impugned judgment.  The High Court directed restoration of the judgment and decree of the  trial Court and set aside the judgment and decree of the first  Appellate Court.

       Though many points were urged in support of the appeal, the  pivotal plea was that the High Court could not have interfered with the  judgment and decree of the first Appellate Court without framing a  substantial question of law as enjoined by Section 100 of the Code of  Civil Procedure, 1908 (in short the ’Code’). The High Court can only  exercise its jurisdiction under Section 100 of the Code in Second  Appeal on the basis of substantial question of law framed at the time  of admitting appeal. A Second Appeal can be heard and decided only on  the basis of substantial question of law, if any. The judgment rendered  by the High Court in Second appeal without following the aforesaid  procedure is not sustainable in law.

       Learned counsel for the respondent on the other hand submitted  that the question of law is self evident and on a technical plea that a  question has not been framed, the well reasoned judgment should not be  set aside.     In view of Section 100 of 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

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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 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

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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 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. (JT 2002 (10) SC 98)

       Reference may also be made to R. Lakshmi Narayan v. Santhi (2001  (4) SCC 688), M.S.V. Raja and Anr. v. Seeni Thevar and Ors. (2001 (6)  SCC 652), R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and  V.P. Temple and Anr. (2003 (8) SCC 752), Md. Mohammad Ali (dead) by  Lrs. V. Jagadish Kalita and Ors. (2004 (1) SCC 271) and Chadat Singh v.  Bahadur Ram and Ors. (Civil Appeal Nos.4903-4905/2005 decided on 3rd  August, 2004).

       In the circumstances, the impugned judgment is set aside. We  remit these matters to the High Court for disposal in accordance with  law. The appeals are disposed of in the aforesaid terms with no order  as to costs.