CASE NO.: Appeal (civil) 1187 of 2007 PETITIONER: M/s. Wyawahare & Sons and Ors RESPONDENT: Madhukar Raghunath Bhave DATE OF JUDGMENT: 07/03/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) Nos. 3711 /2005)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by the
learned Single Judge of the Bombay High Court allowing the
second appeal filed by the respondent under Section 100 of
the Code of Civil Procedure, 1908 (in short ‘CPC’).
Factual background in a nutshell is as follows:
The respondent-plaintiff filed a Special civil suit bearing
No.2 of 1986 in the Court of Civil Judge, Sr. Division, Buldana
against the appellants-defendants. The Trial Court by the
judgment and order dated 19.9.1987 partially decreed the
suit. Aggrieved by the judgment and decree of the Trial court,
the appellants-defendants preferred an appeal in the Court of
Additional District Judge, Buldana. By judgment and order
dated 28.9.1990 the first appellate court allowed the appeal
and set aside the decree passed by the Trial Court. The
respondent-plaintiff preferred a second appeal before the High
Court of Bombay, Nagpur Bench. By the impugned judgment
the learned Single Judge allowed the second appeal.
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 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 the
learned Single Judge at the time of admission of the second
appeal had referred to certain points urged.
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:
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
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 Kanhaiyalal and Ors.
v. Anupkumar and Ors. (2003(1) SCC 430), Mathakala
Krishnaiah v. V. 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).
The appeal stands disposed of in the above terms. There
will be no order as to costs.