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PETITIONER:

KSHITISH CHANDRA PURKAIT

Vs.

RESPONDENT:

SANTOSH KUMAR PURKAIT & ORS.

DATE OF JUDGMENT: 07/05/1997

BENCH:

A. S. ANAND, S. P. BHARUCHA, K. S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

Present:

Hon'ble Dr. Justice A.S. Anand

Hon'ble Mr. Justice S.P. Bharucha

Hon'ble Mr. Justice K.S. Paripoornan

P.K. Chatterjee, Dr. Shankar Ghosh, Sr. Advs., Abhijeet

Chatterjee, Ranjan Mukherjee, Sukumar Ghose, Girish Chandra,

Rathin Das, D.P. Mukherjee, Advs. with them for the

appearing parties.

J U D G M E N T

The following Judgment of the Court was delivered:

PARIPOORNAN, J.

The plaintiff in title suit No. 89 of 1958, Munsif 1st

Court, Diamond Harbour, is the appellant. The defendants in

the suit are the respondents. The suit was filed for

declaration of plaintiff's title and recovery of possession

of the suit land (1.80 acre of land of Mouja Durganagar P.S.

Diamond Harbour). Incidentally, there was a prayer for

declaration that the entries in the R.S. record are

erroneous. The Plaint-property originally belonged to Haran

Chandra Halader and Barada Prasad Halder, and by various

gifts or other documents, Kshirodamani Dasi Became the full

owner of the suit property. The plaintiff purchased the suit

property from Kshirodamani Dasi by registered Deed dated 12

Baisakh, 1365. The plaintiff's vendor had sole occupancy

right in 1.80 acres of land in Mauja Durganagar. She

possessed such land during the material period through the

4th defendant with whom the land was settled annually on

advance rent. On 30th June, 1954, the principle defendants

(defendants Nos. 1 and 2) trespassed into the suit land and

dispossessed the 4th defendant. Subsequently, the

trespassers got their names recorded as Korfa tenants of the

suit land at different fictitious jamas under Kshirodamani,

the plaintiff's vendor, in the R.S. record. The Plaintiff's

vendor Kshirodamani never settled the suit land by granting

Patta to or accepting any Kabuliyat from such trespassers.

On these and other averments the suit was filed for

declaration of plaintiff's title to the suit property and

for recovery of the same from the defendants.

2. The main contesting defendants are defendant Nos. 1 and

2. They put forward the plea that the suit was not

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maintainable, that they were cultivating tenants as thika

tenants, under the plaintiff's vender on payment of advance

rent and the land was settled with them on a permanent

basis. The third defendant is the State of West Bengal. The

State pleaded that the suit was not maintainable and they

have been unnecessarily impleaded. The trial court decreed

the suit. It was found that the plaintiff has title to the

suit land and the defendants have no tenancy right in the

property. The plaintiff was held entitled to recover

possession with mesne profits. The suit was decreed on

28.2.1961. In the appeal filed by defendant No. 1 in Title

Appeal No. 362 of 1961 before the Sub-ordinate Judge, 8th

Court, Alipore, the judgment and decree of the Munsif was

set aside and the suit was dismissed. The plaintiff filed

S.A. 993/62 and assailed the judgment and decree of the Sub-

ordinate Judge rendered in Title Appeal No. 362/61. By

judgment and decree dated 26.2.1976, the appeal was allowed

and the matter was remitted to the lower appellate court for

a fresh disposal, in accordance with law. After remit, Title

Appeal No. 362/61 was disposed of by Sub-Ordinate Judge, 8th

Court, Alipore on 12.2.1977 . The appeal was dismissed,

affirming the judgment and decree of the trial court dated

28.2.1961 except regarding the grant of declaration that the

R.S. record of raiyat is incorrect. The defendants assailed

the concurrent judgments and decrees of the courts below by

filing Second Appeal No. 871/81 before the High Court of

Calcutta. The plaintiff filed a memoranda of cross-

objections in the said Second Appeal against the deletion of

the declaration that the R.S. record regarding the suit land

is incorrect. The Second Appeal and the Memoranda of Cross

objection were disposed of by a learned single Judge of the

Calcutta High Court by his judgment dated 30.11.1982. The

High Court allowed the Second Appeal filed by the contesting

defendants and held that the suit for recovery of possession

of the disputed land, i.e, the suit land, is not

maintainable and the suit obtained and the suit was

dismissed. It is thereafter, the plaintiff in the suit

obtained special leave in S.L.P.(Civil) No. 10083/83 by

order passed by this Court dated 4.11.1986 and the

consequent Civil Appeal is before us.

3. We heard counsel. It is evident from the judgment of

the High Court impugned herein, that the High Court set

aside the concurrent judgments and decrees of the lower

courts on the basis of a new plea raised before it.

Appellant's counsel submitted that the High Court acted

illegally and committed an error of jurisdiction in

entertaining a new plea in Second Appeal, without complying

with the provisions of Section 100 C.P.C. as amended.

Counsel for the respondents submitted that the new plea

raised before the High Court was a question of law and the

Court acted within its jurisdiction in entertaining the said

question of law and in disposing of the Second Appeal on

that basis.

4. In order to appreciate the rival pleas urged before us

regarding the legality and propriety of the disposal of the

Second appeal by the High Court, few broad facts of the case

should be borne in mind. As stated, the suit was one for

declaration of title and for recovery of possession of the

suit property. The plaintiff in the suit possessed the land

through the 4th defendant with whom the land was settled

annually. The contesting (principle) defendants trespassed

into the suit land and dispossessed the 4th defendant on

30.6.1954. The West Bengal Estates Acquisition Act. 1953,

hereinafter referred to as `the Act' came into force on

10.4.1956. The trial court decreed the plaintiff suit. It

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was also found that the defendants failed to establish their

case, that they took settlement of the land in the suit from

the plaintiff's vendor, Kshirodamani. Kshirodamani was found

to be in possession of the suit land. The decree so passed

by the trial court was affirmed in appeal by the learned

Sub-ordinate Judge who also held that the defendants failed

to prove their tenancy raiyats in the suit land and the

first defendant never possessed the suit land in the

previous years, as alleged. The Courts concurrently found

that the suit is not maintainable and the State is an

unnecessary party to the suit. But, in Second Appeal the

contesting defendants raised a new plea. It was to the

effect that the Act came into force on 10.4.1956. on that

day, the right and interest of the plaintiff which was only

as and occupancy raiyat, vested in the State. On the date of

vesting neither the plaintiff's vendor nor the plaintiff was

in possession of the suit land. Since the plaintiff's

vendor, as occupancy raiyat, was a deemed intermediary under

Section 52 of the Act and she was not n possession of the

suit land. Since the plaintiff's vendor nor the plaintiff

was in possession of the suit land. Since the plaintiff's

vendor, as occupancy raiyat, was a deemed intermediary under

Section 52 of the Act and she was not in possession of the

suit land on the date of vesting, i.e., 10.4.1956, her

interest in the suit property vested in the State of West

Bengal. So, neither the plaintiff's vendor nor the plaintiff

was entitle to retain the property under Section 6(1)(d) of

the Act and, therefore, the suit for recovery of possession

of such land is not maintainable. Admittedly, this was a new

plea which was never raised by the defendants at any stage

of the suit. It should be remembered that the State of West

Bengal, the 3rd defendant in the suit, never urged a plea

that the interest of Kshirodamani in the suit land

(plaintiff's vendor) vested in the State Government under

the provisions of the Act.

5. Before the High Court the only point urged on behalf of

the defendant (appellant) was, since the plaintiff's vender,

an occupancy raiyat and deemed intermediary under section 52

of the Act, was not in possession of the suit land on the

date of vesting, her interest in the suit land vested in the

State and the plaintiff was not entitled to maintain the

suit. it appears that the plaintiff, respondent in the

Second appeal, submitted before the Court that this new plea

raised on behalf of the defendants, was never raised in the

pleadings or at any prior stage of the proceedings and the

Second Appeal was the 5th hearing of the suit and such a

plea raised only at the time of hearing, cannot be permitted

to be raised. The learned Judge of the Calcutta High Court

adverted to the above aspect and has opined thus:-

"......... the plea of non-

maintainability of the suit is

essentially a legal plea and if the

suit on the face of it is not

maintainable, the fact that no

specific plea was taken or no

precise issues were framed is of

little consequence. In the present

case the suit on the face of it

appears to be not maintainable in

law and therefore, the point raised

on behalf of the appellants

although it was not agitated in any

of the two court below should in my

view, be entertained. I am unable

to accept the submissions made on

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behalf of the respondent that the

said point of law cannot be

canvassed for the first time before

this Court by the appellants."

(emphasis supplied)

Holding that on the date of vesting the plaintiff's

vendor was not in possession of the suit land and the

defendants trespassed in the suit land and dispossessed the

fourth defendant much earlier on 30th June, 1954 and so,

Section 6(1)(d) of the Act does not apply, the learned

single Judge held that the present suit for recovery of

possession of the suit land is not maintainable and

dismissed the suit. it is not discernible from the records,

whether the High Court, at any stage, formulated any

"substantial question of law" involved in the appeal; nor

does it appear that the opposite side had any notice thereof

or otherwise aware of it.

6. We are of that view that the learned Judge of the

Calcutta High Court totally overlooked the mandatory

provisions of Section 100 C.P.C as amended by Act 104 of

1976.

Prior to the amendment a second appeal could lie to the

High Court on the grounds set out in Clauses (a) to (c) of

Section 100(1), namely:

(a) the decision being contrary to

law or to some usage having

the force of law;

(b) the decision having failed to

determine some material issue

of law or usage having the

force of law;

(c) a substantial error or defect

in the procedure provided by

this Code or by any other law

for the time being in force,

which may possibly have

produced error or defect in

the decision of the case upon

the merits.

However, by the amendment Act of 1976, vital change was

introduced by the legislature in Section 100 C.P.C. The

amended Section (100 C.P.C.) reads thus;

"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 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 and 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

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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 questions."

(emphasis supplied)

The Amendment Act of 1976 has drastically restricted

the scope of second appeals and the jurisdiction of the

Court to entertain second appeals is hedged in by

limitations.

7. Delivering the judgment of a two member Bench in

Panchugopal Barua & ors. Vs. Umesh Chandra Goswami & Ors.

(Civil Appeal No. 3631/930 one of us (Dr. Anand, J.) in his

judgment dated 12.2.1997 has lucidly explained the scope of

Section 100 C.P.C. as amended, thus:-

"A bare look at Section 100 C.P.C.

shows that the jurisdiction of the

High Court to entertain a second

appeal after the 1976 amendment is

confined is confined only to such

appeals as involve a substantial

question of law, specifically set

out in the memorandum of appeal and

formulated by the High Court. Of

course, the proviso to the Section

shows that nothing 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 the Court

is satisfied that the case involves

such a question. The proviso

presupposes that the court shall

indicate in its order the

substantial question of law which

it proposes to decide even if such

substantial question of law was not

earlier formulated by it. The

existence of a "substantial

question of law" is thus, the sine-

qua-non for the exercise of the

jurisdiction under the amended

provisions of Section 100 C.P.C.

Generally speaking, an

appellant is not to be allowed to

set up a new case in second appeal

or raise a new issue (otherwise

than a jurisdictional one), not

supported by the pleadings or

evidence on the record and unless

the appeal involves a substantial

question of law, a second appeal

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shall not lie to the High Court

under the amended provisions. In

the present case, no such question

of law was formulated in the

memorandum of appeal in the High

Court and grounds (6) and (7) in

the memorandum of the second appeal

only which reliance is placed did

not formulate any substantial

question of law. The learned single

Judge of the High Court also, as it

transpires from a perusal of the

judgment under appeal, did not

formulate any substantial question

of law in the appeal and dealt with

the second appeal, not on any

substantial question of law, but

treating it as if it was a first

appeal, as of right, against the

judgment and decree of the

subordinate Court. The intendment

of the legislature in amending

Section 100 C.P.C. was, thus,

respected in its breach. Both the

trial court and the lower appellate

court had decided the cases only on

questions of fact, on the basis of

the pleading and the evidence led

by the parties before the Trial

Court. No pure question of law nor

even a mixed question of law and

fact was urged before the Trial

Court or the First Appellate Court

by the respondent. The High Court

was, therefore, not justified in

entertaining the second appeal on

an altogether new point, neither

pleaded nor canvassed in the

subordinate courts and that too by

overlooking the changes brought

about in Section 100 C.P.C. by the

Amendment Act of 1976 without even

indicating that substantial

question of law was required to be

resolved in they second appeal. To

say the least, the approach of the

High Court was not proper. It is

the obligation of the courts of law

to further the clear intendments

legislature and not for frustrate

it by ignoring the same. "

(emphasis supplied)

The above statement of law has our respectful

concurrence.

We would only add that (a) it is the duty cast upon the

High Court to formulate the substantial question of law

involved in the case even at the initial stage; and (b) that

in (exceptional) cases, at a later point of time, when the

Court exercised its jurisdiction under the proviso to sub-

section (5) of Section 100 C.P.C in formulating the

substantial question of law, the opposite party should be

put on notice thereon and should be given a fair or proper

opportunity to meet the point. Proceeding to hear the appeal

without formulating the substantial question of law involved

in the appeal is illegal and is an abnegation of abdication

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of the duty cast on Court and even after the formulation of

the substantial question of law, if a fair or proper

opportunity is not afforded to the opposite side, it will

amount to denial of natural justice. The above parameters

within which the High Court has exercise its jurisdiction

under Section 100 C.P.C should always be borne in mind. We

are sorry to state that the above aspect are seldom borne in

mind in may case and second appeals are entertained and/or

disposed of without conforming to the above discipline.

The guidelines to determine as to what is a

"substantial question of law" within the meaning of Section

100 C.P.C., have been laid down by this Court in a

Constitution Bench decision in Sir Chunilal V. Mehta and

sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd.,

[AIR 1962 SC 1314 = (1962) Supp. (3) SCR 549]. There is

also a later decision of this Court in Mahindra and Mahindra

Ltd Vs. The Union of India and another. (AIR 1979 SC 798).

It is unnecessary to deal at length with that aspect any

further.

8. In the light of the legal position stated above we are

of the view that the High Court acted illegally and in

excess of jurisdiction in entertaining the new plea, as it

did, and consequently in allowing the Second Appeal. Even

according to the High Court the point urged on behalf of the

appellant was only a "legal plea" thought no specific plea

was taken or no precise issue were framed in that behalf.

The High Court failed to bear in mind that it is not every

question of law that could be permitted to be raised in

second appeal. The parameters within which a new legal plea

could be permitted to be raised are specifically stated in

sub-section (5) of Section 100 C.P.C Under the proviso, the

Court should be "satisfied" that the case involves a

"substantial question of law" and not mere "question of

law". The reason for permitted the substantial question of

law to be raised, should be "recorded" by the Court. It is

implicit therefrom, that on compliance of the above, the

opposite party should be afforded a fair or properly

opportunity to meet the same. It is not any legal plea that

could be raised at the stage of second appeal. It should be

a substantial question of law. The reasons for permitting

the plea to be raised should also be recorded. Thereafter,

the opposite party should be given a fair or proper

opportunity to meet the same. In the present case, as the

extracts from the judgment quoted hereinabove would show,

the High Court has totally ignored the mandatory provisions

of Section 100 C.P.C. The High Court proceeded to entertain

the new plea and rendered it decision without following the

mandatory provision of Section 100 C.P.C. On this short

ground we are of the view that judgment and decree of the

High Court dated 30th November, 1982 are illegal and in

excess of jurisdiction and so unsustainable and deserve to

be set aside. We hereby do so. The appeal is allowed with

cost, including advocates fee which we estimate at Rs.

10,000/-.