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CASE NO.:

Appeal (civil) 4903-05 of 2004

PETITIONER:

Chadat Singh

RESPONDENT:

Bahadur Ram and Ors.

DATE OF JUDGMENT: 03/08/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

(Arising out of SLP ) Nos. 22808-22810/2002)

ARIJIT PASAYAT, J.

Leave granted.

As the only point on which notice was issued related to the

desirability of disposing of the Second Appeal in terms of Section 100 of the

Code of Civil Procedure, 1908 (in short the 'Code') without formulating the

substantial question of law by the High Court, it is not necessary to deal with

the factual aspects in detail. The second appeal and two miscellaneous

petitions were disposed of by a common judgment which form matrix of the

present appeals.

Respondent-Bahadur Ram filed a suit for specific performance against

9 defendants. The suit was decreed by the trial Court. However, the same

was upset by learned Additional District Judge, Kurukshetra . Bahadur Ram

filed Second Appeal No.594/1995 against the judgment of learned

Additional District Judge. By the impugned judgment the trial Court's

judgment and decree have been restored and that of the first Appellate Court

was reversed.

Though various points were urged by learned counsel for the appellant

it is not necessary to go into those aspects in view of the limited scope of the

present appeals in view of the notice issued. There is no appearance on

behalf of the respondents.

Mr. Mahabir Singh, learned counsel for the appellant submitted that

the High Court was not justified in disposing of the Second Appeal without

formulating the substantial question or questions of law as mandated by

Section 100 of the Code.

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

reads as follows:

"Section 100- (1) Save as otherwise expressly

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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 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

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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. (JT 2002 (10) SC 98)

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.