Holding

A second appeal under Section 100 CPC is not maintainable unless the High Court formulates a substantial question of law and hears the appeal on that question.

Summary

The Supreme Court examined two appeals challenging a Punjab and Haryana High Court order that allowed a second appeal under Section 100 of the Code of Civil Procedure, 1908, without formulating any substantial question of law. The appellants argued that the High Court erred by not stating a specific legal question in the memorandum of appeal, while the respondents contended that the High Court correctly analyzed the evidence despite the omission. The Court reiterated that, per Section 100(3)-(5), the memorandum must precisely state the substantial question, the High Court must formulate it, and the appeal must be heard on that question. Finding that the High Court had failed to do so, the Supreme Court held the second appeal was not maintainable. Consequently, the High Court’s judgment was set aside and the matter remitted for disposal in accordance with the law. The appeals were dismissed with no order as to costs.

Issues considered

Whether a second appeal under Section 100 CPC is maintainable when the High Court does not formulate a substantial question of law.
Whether the High Court can entertain a second appeal without a memorandum precisely stating the substantial question of law.
Whether the High Court may set aside findings of fact of lower courts in a second appeal absent a formulated question of law.

Legislation cited

Code of Civil Procedure, 1908s. 100(3), s. 100(4), s. 100(5)

Subjects

Section 100 CPCsecond appealsubstantial question of lawmemorandum of appealformulation of questionadverse possessionhigh court jurisdictionappeal dismissed

Judgment

A JA WALA SINGH (D) BY LRS. AND ORS.

JAGAT SINGH (D) BY LRS. AND ORS.

SEPTEMBER 6, 2006

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appea/-
Maintainabi/ity of, when substantial question of law not formulated-Held:
C Not maintainable.

The question which has arisen for consideration in these appeals is
whether High Court erred in allowing the second appeal without formulating
any question of law for adjudication.

Respondent contended that though specific que~tion of law was not
D formulated, the High Court had analyzed the evidence and kept to the correct
conclusion.

Disposing of the appeals and remitting the matter to High Court so far
as it relates to Second Appeal No.1832of1979, the Court

E HELD: I. The memorandum of appeal shall precisely state substantial
question or questions involved in the appeal as required under sub-section
(3) of Section 100 of the Code of Civil Procedure, 1908. 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
F 100. J757-EJ

2. A perusal of the impugned judgment passed by the High Court does ••
not show that ariy substantial question of law has been formulated or that the
second appeal was heard on a question, if any, so formulated. That being so,
the judgment cannot be maintained. 1756-D I
G
lshwar Dass Jain v. Sohan Lal, 120001 l SCC 434; Kanhaiyala/ v.
Anupkumar, 1200311SCC430; Chadat Singh v. Bahadur Ram, 1200416 SCC
359; Joseph Severane and Ors. v. Benny Mathew and Ors., 12005) 7 SCC 667;
Sasikumar and Ors. v. Kunnath Che//appan Nair and Ors., 120051 12 SCC
588 and Gian Dass v. The Gram Panchayat Village Sunner Kalan and Ors.,
H 754
JAWALASINGH(D) BYLRS. v. JAGATSINGH (D) BY LRS. [PASAYAT.J.] 755

(2006) 5 Supreme 776, relied on. A
CIVIL APPELL LATE JURISDICTION : Civil Appeal No. I004 of 2003.

From the Judgment and Order dated 16.5.2002 of the High Court of
Punjab and Haryana at Chandigarh in R.S.A. No. 1832/1979.
WITH B
""' Civil Appeal No. 3938 of2006.

Dr. Kailash Chand, Keshav Kaushik and Asha Gopalan Nair for the
Appella:its.

M.H. Humayunisa and R. Nedumaran for the Respondents.
c
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. In these appeals challenge is to the judgment
rendered by a learned Single Judge of the Punjab and Haryana High Court D
allowing the Second Appeal filed under Section I 00 of the Code of Civil
Procedure, 1908 (in shoJ"! the 'CPC'). The Second appeal was partially allowed
by setting aside the judgment and decree of the First appellate Court in the
plaintiffs suit for possession to the extent of land measuring 36 kanals
comprised in Khasra Nos. 646, 647 and 648.
E
Though many points were urged basically itwas urged that the Second
appeal was allowed without formulating any question of law for adjudication.
This according to appellants rendered the judgment vulnerable.

Learned counsel for the respondents submitted that though specific
question of law was not formulated, the' High Court analysed the evidence F
and kept to the correct conclusion.
J

Section I00 of the Code deals with "second appeal". The provision
reads as follows:

"I 00( I). Save as otherwise expressly provided in the body of this G
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 H
756 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A passed ex parte. •r
(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
B 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
c 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 fonnulated or that
D
the second appeal was heard on a question, if any, so formulated. That being·
so, the judgment cannot be maintained.

In lshwar Dass Jain v. Sohan Lal, this Court in para I0 has stated

"IO. Now under Section 100 CPC, after the 1976 Amendment, it is
E
essential for the High Court to fonnulate a substantial question of law
it is not pennissible to reverse the judgment of the first appellate court
without doing so."

Yet again in Roop Singh v. Ram Singh this Court has expressed that
jurisdiction of a High Court is confined to appeals involving substantial
F
question of law. Para 7 of the said judgment reads: (SCC p. 713, para 7)

"7. It is to be reiterated that under Section I00 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
G confer any jurisdiction on the High Court to interfere with pure
questions of fact while exercising its jurisdiction under Section I 00
CPC. That apart, at the time of disposing of the matter, the High Court
did not even notice the question of law fonnulated by it at the time
of admission of the second appeal as there is no reference of it in the

H
impugned judgment. Further, the fact-finding courts after appreciating
the evidence held that the defendant entered into the 'possession of .,
JAW ALA SINGH (D)BY LRS. v. JAGATSINGH(D) BY LRS. [PASA YAT.J.] 757

the premises as a batai, that is to say, as a tenant and his possession A
was pennissive 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 B
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 C
to have interfered with the findings of fact recorded by both the
courts below."
The position has been reiterated in Kanhaiyalal v. Anupkumar, [2003]
I SCC430.

In Chadat Singh v. Bahadur Ram, [2004] 6 SCC 359 it was observed
D
thus: (SCC p. 360)

"6. In view of Section 100 of the Code the memorandum of appeal shall
precisely state substantial question or questions involved in the appeal
as required under sub-section (3) of Section JOO. Where the High E
Court is satisfied that in any case any substantial question of law is
involved, it shall fonnulate 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 I00."
The Position was highlighted by this Court in Joseph Severane and F ,
Ors. v. Benny Mathew and Ors., [2005) 7 SCC 667, Sasikumar and Ors. v.
Kunnath Chellappan Nair and Ors., [2005] 12 SCC 588 and Gian Dass v. The
Gram Panchayat, Village Sunner Kalan & Ors. (2006) 5 Supreme 776 .

Under the circumstances, the impugned judgment is set aside. We remit
the matter to the High Court so far as it relates to Second Appeal No. 1832 G
of 1979 for disposal in accordance with law. The appeals are disposed of on
the aforesaid tenns with no order as to costs.

Since the matter is pending since long, we request the High Court to
dispose of the appeal as early as practicable.

D.G. Appeals disposed of. H