IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    2634          OF 2009 (Arising out of S.L.P. (C) No. 9614 of 2006)

V. Ramaswamy ….Appellant

Versus

Ramachandran & Anr.     ….Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2.  Challenge in this appeal is to the judgment of a  learned Single

Judge of the Madras  High Court  allowing the second appeal  filed by the

respondents under Section 100 of the Code of Civil Procedure, 1908 (in short

'CPC').

3. Though many points have been urged in support of the appeal, the

primary stand of the learned counsel for the appellants is that  the second

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appeal  was  allowed  without  framing  any  substantial  question  of  law  as

mandated  by  Section  100  CPC.   Learned  counsel  for  the  respondent

submitted  that  though the High Court's  judgment does  not  show that  any

substantial question of law was framed yet learned Single Judge has allowed

the appeal after analyzing the factual position in the background of settled

principles in law.

4. Section 100 of CPC deals with "Second Appeal". The provision

reads as follows:

"Section  100-Second  Appeal:    (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:

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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."

5. 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, which is set aside and remitted

back to the High Court for proceeding in the matter in accordance with law

and in terms of observations made herein.      

6. 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."  

7. 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

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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  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."

8. The  position  has  been  reiterated  in  Kanhaiyalal  and  Ors. v.

Anupkumar  and  Ors. (2003  (1)  SCC  430),  Mathakala  Krishnaiah v.  V.

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Rajagopal  (2004(10) SCC 676),  Smt. Ram Sakhi Devi v.  Chhatra Devi &

Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v. Kunnath Chellappan Nair &

Ors. (2005(12) SCC 588), Gian Dass v. The Gram Panchayat Village Sunner

Kalan & Ors. (2006 (6) SCC 271), Shah Mansukhlal Chhaganial (d) through

Lrs. V.  Gohil Amarsing Govindbhai (d) through Lrs.  (2006(13) SCALE 99)

and Nune Prasad & Ors. v. Nune Ramarisna [2008(8) SCC 258].

9. The  matter is  remitted  to  the  high  Court  to  decide  after

formulating substantial question of law, if any.

10. The appeal stands disposed of in the above terms. There will be

no order as to costs.  

……….………………….……….J. (Dr. ARIJIT PASAYAT)

        ……..…………………………….J. (ASOK KUAMR GANGULY)

New Delhi, April 17, 2009

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