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CASE NO.:

Appeal (civil) 5817 of 2006

PETITIONER:

G. Susheela (D) Thr. L.Rs. ..... Appellants

RESPONDENT:

M. Rajyalakshmi & Anr. ..... Respondents

DATE OF JUDGMENT: 14/12/2006

BENCH:

G. P. Mathur & Lokeshwar Singh Panta

JUDGMENT:

JUDGMENT

O R D E R

[Arising out of S. L. P. (C) No.1715 of 2006]

Special leave granted.

As the only point on which the 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 of Judicature, Andhra Pradesh at

Hyderabad, it is not necessary to deal with the factual aspects

in detail.

The respondents instituted a suit O.S. No.572 of 1989 in

the Court of VI Assistant Judge, City Civil Court, Hyderabad,

against the appellants for perpetual injunction restraining the

appellants from interfering with the peaceful possession of suit

land admeasuring Ac.1.25 guntas (i.e. 65 guntas) in Survey

No.29 in village Theegalguda, Mandal Charminar, Hyderabad

Distt., Andhra Pradesh.

The suit was decreed by the trial court. The appellants

carried the matter in appeal being A.S. No.249 of 1996 to the

Court of the Additional Chief Judge, City Civil Court,

Hyderabad. The learned Additional Chief Judge allowed the

appeal and set aside the judgment and decree of the trial

court. Being aggrieved against the judgment of the First

Appellate Court, the respondents filed Second Appeal No.523

of 2001 in the High Court of Judicature, Andhra Pradesh at

Hyderabad. By the impugned judgment, the Second Appeal

was allowed and the judgment of the First Appellate Court was

reversed.

Hence, this appeal by special leave.

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 notice issued in the present appeal.

Mr. C. S. Rajan, learned senior counsel for the

appellants, 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.

Mr. C. Mukund, learned counsel for the respondents,

submitted that though the High Court has not formulated the

questions of law, as required, yet on analyzing the evidence, it

concluded that the view expressed by the courts below were

not tenable in law.

Section 100 of the Code deals with `Second Appeal'. A

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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 a question

of law, if any, so formulated. That being so, the judgment

cannot be sustained.

In Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434],

this Court in para 10 has stated thus: (SCC p.441)

"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: (SCC p.713)

"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 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 \026 (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], Chadat Singh v. Bahadur

Ram & Ors. [(2004) 6 SCC 359]; Sasikumar & Ors. v.

Kunnath Chellappan Nair & Ors. [(2005) 12 SCC 588].

Under the circumstances, the impugned judgment dated

25.08.2005 passed by the High Court of Judicature, Andhra

Pradesh at Hyderabad in Second Appeal, is set aside. We

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remit the matter to the High Court for disposal of Second

Appeal No.523 of 2001 in accordance with law. The appeal is

disposed of on the above-said terms with no order as to costs.

Since the matter is pending for long, we request the High

Court to dispose of the appeal as early as possible.