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CASE NO.: Appeal (civil)  5614 of 2006

PETITIONER: Shah Mansukhlal Chhaganial(d) through Lrs.

RESPONDENT: Gohil Amarsing Govindbhai(d) through Lrs.

DATE OF JUDGMENT: 05/12/2006

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

JUDGMENT: J U D G M E N T (Arising out of SLP ( C) No.7514 of 2003)  

Dr. ARIJIT PASAYAT, J

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Gujarat High Court.  Second  appeal filed by the respondents in terms of Section 100 of the  Code of Civil Procedure, 1908 (in short the ’Code’) was allowed.  Though various questions were raised in support of the  appeal, it was primarily highlighted that the Second Appeal  was allowed without formulating any substantial question of  law.            There is no appearance on behalf of respondents when  the matter is called though learned counsel  had entered  appearance.

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

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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 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 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 Page 1532 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 v.  Anupkumar [2003 (1) SCC 430]. In Chadat Singh v. Bahadur Ram and Ors. [2004 (6) SCC  359], it was observed thus: "6. In view of Section 100 of the Code the

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memorandum of appeal shall precisely state  substantial question or questions involved in  the appeal as required under Sub-section (3) of  Section100. 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."

        The position was highlighted by this Court in Joseph  Severane and Others  v.  Benny Mathew and Others  [2005 (7)  SCC 667];  Sasikumar and Others v. Kunnath Chellappan Nair  and Others. [2005 (12) SCC 588]; Jawala Singh (D) by Lrs. v.  Jagat Singh (D) by Lrs. (JT 2006 (8) SC 483) and C.A.  Sulaiman & Ors. v. State Bank of Travancore, Alwayee and  Ors.  (2006 (6) SCC 392).

The proviso to Sub-section (5) of Section 100 is  applicable only when any substantial question of law has  already been formulated and it empowers the High Court to  hear, for reasons to be recorded, the appeal on any other  substantial question of law. The expression "on any other  substantial question of law" clearly shows that there must be  some substantial question of law already formulated and then  only another substantial question of law which was not  formulated earlier can be taken up by the High Court  for  reasons to be recorded, if it is of the view that the  case  involves such question.          Under the circumstances, the impugned judgment is set  aside, and the matter is remitted to the High Court for  disposal in accordance with law.  

The appeal is disposed of in the aforesaid terms with no  order as to costs.