(Arising Out of SLP(C) Nos. 25897-25898 of 2004)
Pasayat & S.H. Kapadia,
J : - Leave granted
Heard learned counsel for the parties.
These appeals are directed against
the judgment passed by learned Single Judge of Punjab and Haryana High
Court allowing the Second Appeal filed by the defendant and rejecting
the application for review.
The plaintiff has filed the present
appeals against the aforesaid orders.
Though several points were urged in
support of the appeals, main ground was that the Second appeal was
allowed without formulating a question of law.
In view of Section 100 of the Code
of Civil Procedure, 1908 (in short 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:
(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
(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
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 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. (2003 (1) SCC 430) and Ram
Sakhi Devi (Smt.) v. Chhatra Devi and Others (2005 (6) SCC 181).
The matter is remitted to the High
Court, which shall formulate substantial questions of law, if any, and
then deal with the matter. Needless to say if there is/are question(s)
of law, the appeal has to be dismissed. We express no opinion in that
Appeals are allowed without any
orders as to costs.
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