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CASE NO.: Appeal (civil)  414 of 2001

PETITIONER: Patrick JJ. Saldanha

RESPONDENT: Antony M. Saldanha

DATE OF JUDGMENT: 08/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the order passed by a  learned Single Judge of the Karnataka High Court allowing the  Second Appeal ( RSA No. 930 of 1991) filed by the respondent.

Though many points are urged, primarily it was  submitted that the Second Appeal was allowed without  formulating a substantial 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  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.

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(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 (Dead) through LRs. v. Sohan Lal  (Dead) through LRs. (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 (Dead) through LRs. v. Ram  Singh (Dead) through LRs. (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 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

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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. (JT 2002 (10) SC 98), Premabai  v. Jnaneshwar Ramakrishna Patange and Ors. (2003 AIR SCW  2922), Chadat Singh v. Bahadur Rama and Ors. (JT 2004 (6)  SCC 296) and Mathakala Krishnaiah v. V. Rajagopal (JT 2004  (9) SCC 205). Recently this Court has clarified the position in  Shah Mansukhlal Chhanganial (Dead) through LRs. v. Gohil  Amarsing Govindbhai (Dead) through LRs. 2006 (13) SCALE  99, Ravi Construction Co. v. Somvanshi Arya Ksatriya Samaj  and Ors. 2006 (9) SCALE 174), Jawala Singh (Dead) by LRs. &  Ors. v. Jagat Singh (Dead) By LRs. & Ors. (JT 2006 (8) SC 483,  C.A. Sulaiman and Ors. v. State Bank of Travancore Alwayee  and Ors. (AIR 2006 SC 2848.           In the circumstances, the impugned judgment is set  aside. We remit the matter to the High Court for disposal after  formulating the substantial question of law, if any, and in  accordance with law. The appeal is disposed of in the aforesaid  terms with no order as to costs.