Holding

A second appeal under Section 100 CPC may be entertained only when a substantial question of law is involved, and since no such question existed, the High Court erred; its order is set aside and the First Appellate Court's decree restored.

Summary

The Supreme Court examined two second appeals filed under Section 100 of the CPC concerning a suit for declaration of title and possession of a property. The High Court had entertained the appeals despite the absence of a substantial question of law, and had allowed the respondent's claim to possession while dismissing the appellant's appeal. The Court clarified that a second appeal is permissible only when a substantial question of law, which is debatable, not settled, and material to the rights of the parties, is involved. It held that the questions framed by the High Court were not substantial questions of law and that the First Appellate Court's findings on title, ownership and denial of possession could not be disturbed in a second appeal. Consequently, the High Court's order was set aside and the First Appellate Court's decree restored, granting the appellant relief and rejecting the respondent's claim to possession.

Issues considered

Whether the High Court was justified in entertaining the second appeals under Section 100 CPC in the absence of a substantial question of law.
Whether the questions framed by the High Court qualify as substantial questions of law.
Whether the First Appellate Court's findings on title, ownership and denial of possession can be challenged in a second appeal.
Whether the plaintiff is entitled to a decree of possession in addition to a declaration of title for his half share.
Whether the defence of adverse possession and the limitation period bars the plaintiff's claim for possession.

Legislation cited

Civil Procedure Code (Amendment) Act, 1976
Code of Civil Procedure, 1908s. 100
Limitation Act, 1963s. 3, s. Schedule Article 64, s. Schedule Article 65

Subjects

Section 100 CPCsubstantial question of lawsecond appealadverse possessionLimitation Act 1963possession follows titledeclaration of titlepossession decreecivil procedureproperty law

Judgment

[2020] 7 S.C.R. 763 763

NAZIR MOHAMED A
v.
J. KAMALA AND ORS.
(Civil Appeal Nos. 2843-2844 of 2010)
AUGUST 27, 2020 B

[NAVIN SINHA AND INDIRA BANERJEE, JJ.]
Code of Civil Procedure, 1908:
s.100 – Second appeal – Nature and scope of – Held: A right
to appeal is conferred by a statute – If the statute confers a limited C
right of appeal, the Court cannot expand the scope of the appeal –
s.100 restricts the right of second appeal only where a substantial
question of law is involved – In order to be substantial, the question
must be debatable, not previously settled by the law of the land or
any binding precedent, and must have a material bearing on the
D
decision of the case and/ or rights of the parties, if answered either
way – Whether a question of law is substantial and whether such
question is involved in the case is to be determined on the facts and
circumstances of the case – A finding of fact is not open to challenge
in second appeal even if the appreciation of evidence is palpably
erroneous and finding of fact is incorrect – An entirely new point E
raised for the first time, before High Court is not a question involved,
unless it goes to the root of the matter – In the facts of the present
case, no substantial questions was involved in the second appeals
and hence High Court wrongly entertained the second appeals.
Adverse Possession: F
Suit for declaration of ownership and for possession of the
suit premises – Alleging that the suit premises was let out to the
defendant – Written statement denying the tenancy and claiming
absolute ownership – Trial Court dismissed the suit – First Appellate
Court partly decreed the suit holding that the plaintiff was entitled G
to ownership of half portion of the suit property which his father
had purchased and not the other portion which was purchased by
father of the defendant – However, First Appellate Court denied
decree of possession to the plaintiff on the ground that the plaintiff
failed to prove the tenancy and that the defendant was in occupation
H
763
764 SUPREME COURT REPORTS [2020] 7 S.C.R.

A of the premises for a long time – Second appeal by both the parties
– High Court dismissed the appeal of defendant and allowing the
appeal of the plaintiff granted him relief of recovery of possession
– Appeal to Supreme Court – Held: A person in possession, in the
assumed character of owner has a perfectly good title against all
but the rightful owner – But if the rightful owner does not assert his
B
right of possession, within limitation period, his right is extinguished
forever, and the possessory owner acquires an absolute title – The
conclusion of the First Appellate Court did not warrant interference
– High Court could not have reversed the finding of First Appellate
Court and allowed relief of recovery of possession when the
C defendant was in complete possession of the suit premises, as owner
with absolute rights for over 28 years.
Maxims:
‘Possession follows title’ – Applicability of – Held: The maxim
is limited in its application to property – The presumption that
D possession must be deemed to follow title, arises only where there is
no definite proof of possession by anyone else – A person claiming
decree of possession needs to establish his entitlement to get such
possession and also establish that his claim is not barred by law of
limitation.
E Words and Phrases:
‘Mesne profit’ – Meaning of.
Allowing the appeals, the Court
HELD: 1.1 A second appeal, or for that matter, any appeal
F is not a matter of right. The right of appeal is conferred by statute.
A second appeal only lies on a substantial question of law. If statute
confers a limited right of appeal, the Court cannot expand the
scope of the appeal. It was not open to the Respondent-Plaintiff
to re-agitate facts or to call upon the High Court to reanalyze or
G re-appreciate evidence in a Second Appeal. [Para 25][777-B-C]
1.2 Section 100 of the CPC, as amended, restricts the right
of second appeal, to only those cases, where a substantial question
of law is involved. The existence of a “substantial question of
law” is the sine qua non for the exercise of jurisdiction under
Section 100 of the CPC. [Para 26][777-C-D]
H
NAZIR MOHAMED v. J. KAMALA AND ORS. 765

1.3 There was no question of law involved in either of the A
second appeals, far less any substantial question of law, to warrant
inference of the High Court in the Second Appeal filed by the
defendant. [Para 28][777-F]
1.4 To be “substantial”, a question of law must be debatable,
not previously settled by the law of the land or any binding B
precedent, and must have a material bearing on the decision of
the case and/or the rights of the parties before it, if answered
either way. To be a question of law “involved in the case”, there
must be first, a foundation for it laid in the pleadings, and the
question should emerge from the sustainable findings of fact,
arrived at by Courts of facts, and it must be necessary to decide C
that question of law for a just and proper decision of the case.
Where no such question of law, nor even a mixed question of law
and fact was urged before the Trial Court or the First Appellate
Court, as in the present case, a second appeal cannot be
entertained. [Paras 32-34][779-D-F] D
Panchagopal Barua v. Vinesh Chandra Goswami AIR
1997 SC 1047 – relied on.
1.5 Whether a question of law is a substantial one and
whether such question is involved in the case or not, would depend
on the facts and circumstances of each case. The paramount E
overall consideration is the need for striking a judicious balance
between the indispensable obligation to do justice at all stages
and the impelling necessity of avoiding prolongation in the life of
any lis. [Para 35][779-G; 780-A]
Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC F
179 : [2001] 1 SCR 948 – relied on.
1.6 In a Second Appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact is
not open to challenge, even if the appreciation of evidence is
palpably erroneous and the finding of fact incorrect. An entirely G
new point, raised for the first time, before the High Court, is not
a question involved in the case, unless it goes to the root of the
matter. [Para 36][780-B]
Ramchandra v. Ramalingam AIR 1963 SC 302 : [1963]
3 SCR 604 – relied on. H
766 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 1.7 An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the terms of
a document is a question of law. Construction of a document,
involving the application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a document
or wrong application of a principle of law in construing a document,
B
it gives rise to a question of law. The High Court should be
satisfied that the case involves a substantial question of law, and
not a mere question of law. A question of law having a material
bearing on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a substantial
C question of law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding precedents,
and, involves a debatable legal issue. A substantial question of
law will also arise in a contrary situation, where the legal position
is clear, either on account of express provisions of law or binding
precedents, but the Court below has decided the matter, either
D
ignoring or acting contrary to such legal principle. In the second
type of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered on a
material question, violates the settled position of law. The general
rule is, that High Court will not interfere with the concurrent
E findings of the Courts below. But it is not an absolute rule. Some
of the well-recognised exceptions are where (i) the courts below
have ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by applying
the law erroneously; or (iii) the courts have wrongly cast the
burden of proof. A decision based on no evidence, does not refer
F
only to cases where there is a total dearth of evidence, but also
refers to case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding. [Para 37][780-C-G;
781-A-B]
1.8 The condition precedent for entertaining and deciding
G a second appeal being the existence of a substantial question of
law, whenever a question is framed by the High Court, the High
Court will have to show that the question is one of law and not
just a question of facts, it also has to show that the question is a
substantial question of law. When no substantial question of law
H is formulated, but a Second Appeal is decided by the High Court,
NAZIR MOHAMED v. J. KAMALA AND ORS. 767

the judgment of the High Court is vitiated in law. [Paras 57 and A
59] [786-D-E; 788-B]
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
(1999) 3 SCC 722 : [1999] 2 SCR 728; Biswanath
Ghosh v. Gobinda Ghose AIR 2014 SC 152 – relied
on. B
1.9 Formulation of substantial question of law is mandatory
and the mere reference to the ground mentioned in Memorandum
of Second Appeal can not satisfy the mandate of Section 100 of
the CPC. [Para 59][788-C]
1.10 In the present case neither of the two questions framed C
by the High Court is a question of law, far less a substantial
question of law. There was no controversy before the High Court
with regard to interpretation or legal effect of any document nor
any wrong application of a principle of law, in construing a
document, or otherwise, which might have given rise to a question
D
of law. There was no debatable issue before the High Court which
was not covered by settled principles of law and/or precedents.
[Para 38][781-C-D]
1.11 It is nobody’s case that the decision rendered by the
First Appellate Court on any material question, violated any
settled question of law or was vitiated by perversity. It is nobody’s E
case that the evidence taken as a whole does not reasonably
support the finding of the First Appellate Court, or that the First
Appellate Court interpreted the evidence on record in an absurd
and/or capricious manner. It is also nobody’s case that the First
Appellate Court arrived at its decision ignoring or acting contrary F
to any settled legal principle. [Para 39][781-E-F]
1.12 The finding by First Appellate Court is based on cogent
and binding documents of title, including the registered deeds of
conveyance by which the respective predecessors-in-interest of
the Appellant-Defendant and Respondent-Plaintiff had acquired
G
title over the suit premises. There was no erroneous inference
from any proved fact. Nor had the burden of proof erroneously
been shifted. [Para 40][781-G]
Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. &
Mfg. Co. Ltd. AIR 1962 SC 1314 : [1962] Suppl. SCR
549 – followed. H
768 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Hero Vinoth v. Seshammal (2006) 5 SCC 545 : [2006]
2 Suppl. SCR 79 – relied on.
1.13 The conclusion of the First Appellate Court, of the
entitlement of the Respondent Plaintiff to a declaration in respect
of his half share in the suit property does not warrant interference
B in a second appeal. [Para 41][782-B]
2.1 The first question framed by the High Court, that is,
the question whether the Lower Court /Appellate Court was right
in refusing the Respondent Plaintiff relief of possession, when
the Appellate Court had granted mesne profits to the Respondent
C Plaintiff, is based on the erroneous factual premises that the First
Appellate Court had granted mesne profits to the Respondent
Plaintiff, which the First Appellate Court had not done. The first
question is not at all a question of law, far less any substantial
question of law involved in the case. [Paras 42-43][782-B-D]
D 2.2 The High Court has patently erred in its conclusion
that there was contradiction in the findings of the First Appellate
Court, in that the First Appellate Court had declined the
Respondent Plaintiff the relief of delivery of possession of the
suit property but had granted the Respondent Plaintiff mesne
profits for three years, prior to the institution of the suit. ‘Mesne
E profits’ are profits which a person in wrongful possession of
property might have derived, but would not include profits due
to improvements. There is no finding of the Appellant-Defendant
being in wrongful possession of any part of the suit premises
either by the Trial Court or by the First Appellate Court. The
F First Appellate Court has, nowhere used the expression ‘mesne
profit’. What the High Court granted to the Respondent-Plaintiff
was in the nature of reimbursement of profit derived by the
Appellant by use, occupation and enjoyment of the Respondent-
Plaintiff’s portion of the suit premises and/or in other words
reimbursement of income from the said portion of the suit
G premises or charges for use, occupation and enjoyment thereof.
[Paras 44-45][783-E-G]
3.1 A decree of possession does not automatically follow a
decree of declaration of title and ownership over property. Where

H
NAZIR MOHAMED v. J. KAMALA AND ORS. 769

a Plaintiff wants to establish that the Defendant’s original A
possession was permissive, it is for the Plaintiff to prove this
allegation and if he fails to do so, it may be presumed that
possession was adverse, unless there is evidence to the contrary.
The Appellant-Defendant has in his written statement in the suit,
denied the title and ownership of the Respondent-Plaintiff to the
B
suit property. The Appellant-Defendant has asserted that the
Appellant-Defendant is the owner of the suit property and has
been in possession and in occupation of the suit premises as owner
from the very inception. The High Court erred in law in proceeding
to allow possession to the Respondent-Plaintiff on the ground
that the Appellant-Defendant had not taken the defence of adverse C
possession, ignoring the well established principle that the
Plaintiff’s claim to reliefs is to be decided on the strength of the
Plaintiff’s case and not the weakness, if any, in the opponent’s
case. [Paras 46-48][783-H; 784-A-D]
Baba Kartar Singh v. Dayal Das AIR 1939 PC 201 – D
relied on.
3.2 From the pleadings filed by the Appellant-Defendant, it
is patently clear that the Appellant-Defendant claimed the right
of ownership of the suit property on the basis of a deed of
conveyance, executed over 75 years ago. The Appellant- E
Defendant has claimed continuous possession since the year 1966
on the strength of a deed of release executed by his father. In
other words, the Appellant-Defendant has claimed to be in
possession of the suit premises, as owner, for almost 28 years
prior to the institution of suit. In the facts and circumstances of
the case, where the Appellant-Defendant was owner of only a F
portion of the suit property but has admittedly been in possession
of the entire suit property, and the Appellant-Defendant has, in
his written statement, claimed to be in continuous possession
for years as owner, the defence of the Appellant in his written
statement was, in effect and substance, of adverse possession G
even though ownership by adverse possession had not been
pleaded in so many words. It is, however not necessary for this
Court to examine the question of whether the Appellant-
Defendant was entitled to claim title by adverse possession or
not. [Paras 49-50][784-D-G]
H
770 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 3.3 A person claiming a decree of possession has to establish
his entitlement to get such possession and also establish that his
claim is not barred by the laws of limitation. He must show that
he had possession before the alleged trespasser got possession.
The maxim “possession follows title” is limited in its application
to property, which having regard to its nature, does not admit to
B
actual and exclusive occupation, as in the case of open spaces
accessible to all. The presumption that possession must be
deemed to follow title, arises only where there is no definite proof
of possession by anyone else. In the present case it is admitted
that the Appellant-Defendant is in possession and not the
C Respondent-Plaintiff. [Paras 51-52][784-H; 785-A-B]
3.4 A suit for recovery of possession of immovable property
is governed by the Limitation Act, 1963. Section 3 of the Limitation
Act bars the institution of any suit after expiry of the period of
limitation prescribed in the said Act. The Court is obliged to
D dismiss a suit filed after expiry of the period of limitation, even
though the plea of limitation may not have been taken in defence.
The period of limitation for suits for recovery of immovable
property is prescribed in Part V of the Schedule to the Limitation
Act, 1963, and in particular Articles 64 and 65 thereof.
E [Paras 53-54][785-B-D]
3.5 In the absence of any whisper in the plaint as to the
date on which the Appellant-Defendant and/or his Predecessor-
in-interest took possession of the suit property and in the absence
of any whisper to show that the relief of decree for possession
F was within limitation, the High Court could not have reversed
the finding of the First Appellate Court, and allowed the
Respondent-Plaintiff the relief of recovery of possession, more
so when the Appellant-Defendant had pleaded that he had been
in complete possession of the suit premises, as owner, with
absolute rights, ever since 1966, when his father had executed a
G Deed of Release in his favour and/or in other words for over 28
years as on the date of institution of the suit. [Para 55][785-G-H;
786-A-B]
3.6 A person in possession of land in the assumed character
of owner and exercising peaceably the ordinary rights of ownership
H
NAZIR MOHAMED v. J. KAMALA AND ORS. 771

has a perfectly good title against all the world but the rightful A
owner and if the rightful owner does not come forward and assert
his right of possession by law, within the period prescribed by
the provisions of the statute of limitation applicable to the case,
his right is forever distinguished, and the possessory owner
acquires an absolute title. [Para 56][786-C-D]
B
Peri v. Chrishold (1907) PC 73 – relied on.
4. For the reasons discussed above, the appeals are
allowed. The judgment and order of the High Court under appeal
is set aside to the extent Second Appeal No.558 of 2000 has been
allowed and the judgment and decree of the First Appellate Court C
is restored. [Para 62][788-E-F]
Case Law Reference
[1962] Suppl. SCR 549 followed Para 29
D
[2006] 2 Suppl. SCR 79 relied on Para 30
AIR 1997 SC 1047 relied on Para 34
[2001] 1 SCR 948 relied on Para 35
[1963] 3 SCR 604 relied on Para 36 E

[1999] 2 SCR 728 relied on Para 58
AIR 2014 SC 152 relied on Para 59
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
F
2843-2844 of 2010.
From the Judgment and Order dated 06.11.2008 of the Madurai
Bench of Madras High Court in S.A. (MD) Nos. 64 and 558 of 2000.
K. K. Mani, Mrs. T. Archana, Advs. for the Appellant.
G
S. Thananjayan, Adv. for the Respondents.

H
772 SUPREME COURT REPORTS [2020] 7 S.C.R.

A The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. These appeals are against a common judgment and order dated
06.11.2008 dismissing the Second Appeal being S.A. (MD) No.64 of
B 2000, filed by the Appellant, but allowing the Second Appeal being S.A.
(MD) No. 558 of 2000 filed by the Respondent, and setting aside the
judgment and decree dated 17.09.1999 of the First Appellate Court in
A.S. No.16/1998, to the extent the First Appellate Court had declined
the Respondent’s claim to a decree of recovery of possession of the suit
premises. The High Court held that the Respondent, being the Plaintiff
C in the suit was entitled to a declaration of title in respect of half portion
of the suit premises, recovery of possession of the said half portion of
the suit premises and also to recovery of income from the said half of
the suit property owned by the Respondent and/or charges for use,
enjoyment and/or occupation thereof.
D 2. The Appellant claims to be the owner of the suit premises,
being the building and premises at Door No.4 in R.S. No.120/13 at Mela
Senia Street, Aduthurai, Tamil Nadu.
3. According to the Appellant, the Appellant’s father purchased
the suit premises for valuable consideration, by a registered deed of sale
E dated 17.2.1938. The Appellant claims to have been in possession of the
suit premises, as owner, from the inception and not as tenant.
4. In 1994, the Respondent, hereinafter referred to as the
‘Respondent Plaintiff’, filed a suit being O.S. No.169/1994 in the Court
of the District Munsif, Valaingaiman at Kumbhakonam, claiming
F declaration of ownership of the suit premises, a direction on the Appellant,
being the Defendant, to deliver possession of the suit premises to the
Respondent Plaintiff, a decree for payment of Rs.900/- towards arrears
of rent/occupation charges in respect of the suit premises, and a decree
for payment of future profits.
G 5. In the plaint filed in the said suit, it has been alleged that the
said premises, which had been purchased by the Respondent Plaintiff’s
father, by a registered sale deed dated 17.9.1940, had originally been let
out to the Appellant’s father M. Abdul Aziz. After the death of
M. Abdul Aziz, the tenancy was attorned in the name of the Appellant,
who agreed to pay rent of Rs.25/- per month, and also the requisite
H
Panchayat Tax.
NAZIR MOHAMED v. J. KAMALA AND ORS. 773
[INDIRA BANERJEE, J.]

6. Alleging that the Appellant had been trying to set up title in A
respect of the said premises, by applying for ‘Patta’ to the Tahsildar
Natham, and further alleging that the Appellant was in arrears of rent to
the tune of Rs.1225/- up to February, 1994, the Respondent Plaintiff
filed the aforesaid suit.
7. In the suit, the Respondent Plaintiff inter alia claimed a decree B
of Rs.900/- towards rent and/or occupation charges. The Respondent-
Plaintiff restricted his claim to arrears of rent and/or occupation charges
to three years, as the claim to rent and/or occupation charges for the
earlier period, had become barred by limitation, there being no
acknowledgement of liability by the Appellant-Defendant.
C
8. The Appellant-Defendant filed his written statement in the Suit,
denying title and/or ownership of the Respondent Plaintiff to the suit
premises and also contending that the Appellant-Defendant was not a
tenant. The Appellant-Defendant claimed absolute ownership of the suit
premises, which he claimed had been purchased by his father, by a
registered sale deed dated 17.2.1938, for valuable consideration. D

9. The Appellant-Defendant further contended that the suit
premises had all along, been assessed to tax in the name of the Appellant-
Defendant’s father, Abdul Aziz, and not in the name of the Respondent
Plaintiff or his father. The Appellant-Defendant claimed to have got the
suit premises from his father, under a registered Deed of Release E
dated 14.3.1966. According to the Appellant-Defendant, he has, since
1966, owned and enjoyed the suit premises, with absolute rights.
10. The learned District Munsif (Trial Court) framed the following
three issues for adjudication in the said suit :-
F
(i) Whether the Respondent Plaintiff was entitled to declaration
of title to the suit property and recovery of possession of the
suit property from the Defendant (the Appellant in this Appeal)
(ii) Whether the Defendant (the Appellant herein) was a tenant
at the suit property or not;
G
(iii) To what other relief was the Respondent Plaintiff entitled.
11. By a judgment and decree dated 22.1.1998, the Trial Court
dismissed the said suit, holding that the Respondent Plaintiff had failed
to prove that the suit property had been purchased by his father. All the
three issues were decided against the Respondent Plaintiff. H
774 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 12. The Trial Court found that the Respondent Plaintiff had not
been able to produce any rent agreement, rent receipts or any other oral
or documentary evidence to establish that the Appellant was a tenant at
the said premises. The Trial Court held that the Respondent Plaintiff
was not entitled to any relief in the said suit.
B 13. Being aggrieved by the said judgment and decree
dated 22.1.1998 passed by the Trial Court, the Respondent Plaintiff
appealed to the Subordinate Court at Kumbhakonam, hereinafter referred
to as the ‘First Appellate Court’.
14. By a judgment and order dated 17.9.1999, the First Appellate
C Court allowed the said appeal, and set aside the said judgment and order
dated 22.1.1998 of the Trial Court , holding that the Respondent Plaintiff
was entitled to declaration of title over half portion of the suit premises
and also to recovery of income, if any, from the said half portion of the
suit premises owned by the Respondent Plaintiff and/or charges for use,
occupation and/or enjoyment thereof, but not to recovery of possession.
D
15. The claim of the Respondent Plaintiff in the suit was based on
the assertion that one Rajagopala Pattar, who had purchased the suit
premises in a Court Auction, had sold the said premises to the Respondent
Plaintiff’s father in 1940.

E 16. The First Appellate Court analyzed the oral evidence adduced
on behalf of the parties, scrutinized and examined the documentary
evidence on record, including in particular the registered deed of
conveyance by which the Respondent Plaintiff’s father had purchased
his portion of the suit premises from Rajagopala Pattar (Exhibit P1), the
registered documents by which Rajagopala Pattar had acquired the suit
F premises in a Court Auction (Exhibits P2 and P3) and the registered
deed of conveyance executed on 17.02.1938 being Exhibit D1 by which
the Appellant-Defendant’s father M. Abdul Aziz had purchased his portion
of the suit premises, examined the extent of the rights of the respective
vendors of the Appellant-Defendant’s father and the Respondent-
G Plaintiff’s father and/or their predecessors-in-interest, and concluded
that the Appellant-Defendant’s father had only purchased a portion of
the suit premises, not the entire suit premises, and the other portion had
been purchased by the Respondent-Plaintiff’s father. The First Appellate
Court, therefore, held that the Respondent-Plaintiff was entitled to a
declaration in respect of the said portion of the suit premises, purchased
H by his father.
NAZIR MOHAMED v. J. KAMALA AND ORS. 775
[INDIRA BANERJEE, J.]

17. The First Appellate Court also took note of the fact that the A
Appellant-Defendant’s family had been residing in the suit property since
1940, and that the Respondent-Plaintiff had not produced any rent
agreement or receipts or any tax receipts in respect of the suit premises
to show that the Respondent-Plaintiff or his father or any other family
member had ever paid any taxes in respect of the suit premises.
B
18. The First Appellate Court concurred with the finding of the
Trial Court, that the Respondent-Plaintiff had failed to establish that the
said premises had been rented out to M. Abdul Aziz father of the
Appellant-Defendant. On the other hand, the Appellant had been in
possession of and had been enjoying the suit premises for a long time.
The First Appellate Court thus found the Appellant liable to pay “backage C
income” in respect of the portion of the suit property, of which the
Respondent Plaintiff was the owner.
19. The First Appellate Court, in effect, held that the Appellant
was liable to make over to the Respondent Plaintiff, income if any, derived
from the said portion of the suit premises which was owned by the D
Respondent Plaintiff and/or pay charges for use, occupation and
enjoyment of the portion of the suit premises owned by the Respondent
Plaintiff.
20. The First Appellate Court, however, held that the Respondent
Plaintiff was not entitled to recovery of possession since the Respondent E
Plaintiff had failed to establish landlord-tenant relationship between the
Respondent Plaintiff and the Appellant defendant, and that in any case
the Appellant had been in possession of the suit premises for a long time.
21. The First Appellate Court passed a fair and just order, holding
that the Respondent-plaintiff, being the owner of a portion of the said F
premises, was entitled to declaration of title in respect of the said portion
of the suit property owned by him, but not to recovery of possession,
since the defendant being the Appellant herein had been enjoying the
suit property for a long time. In effect and substance, the First Appellate
Court found that the relief of recovery of possession was barred by G
delay and/or in other words the laws of limitation, although this has not
clearly been stated in the judgment and order of the First Appellate Court.
22. Being purportedly aggrieved by the reversal of the judgment
and decree of the Trial Court, dismissing the said suit, the Appellant-
Defendant filed a Second Appeal being S.A. No. 64/2000 in the Madras
H
776 SUPREME COURT REPORTS [2020] 7 S.C.R.

A High Court, against the judgment of the First Appellate Court. The
Respondent Plaintiff also filed Second Appeal No.558 of 2000 in the
Madras High Court, against the same judgment and decree dated
17.9.1999, to the extent the Respondent Plaintiff had been denied the
relief of delivery of possession in respect of his half share in the suit
premises.
B
23. By the judgment and order of the High Court under appeal
before this Court, the Second Appeal No. 64 of 2000 filed by the
Appellant-Defendant has been dismissed, the Second Appeal No.559 of
2000 filed by the Respondent Plaintiff has been allowed and the judgment
and decree of the First Appellate Court set aside, to the extent the
C Respondent Plaintiff had been denied the relief of recovery of possession
in respect of half of the suit premises. The High Court held that the
Respondent Plaintiff was entitled to recovery of half of the plaint
scheduled property, after identifying the same with the help of an
Advocate Commissioner, at the time of the execution of the decree. In
D all other respects, the decree of the First Appellate Court was confirmed.
24. Section 100 of the Civil Procedure Code (CPC) which provides
for a Second Appeal, as amended by the Civil Procedure Code
(Amendment) Act, 104 of 1976, with effect from 1.2.1977,provides as
follows:-
E “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
F 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
G 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
H argue that the case does not involve such question:
NAZIR MOHAMED v. J. KAMALA AND ORS. 777
[INDIRA BANERJEE, J.]

Provided that nothing in this sub-section shall be deemed to take A
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.]”
25. A second appeal, or for that matter, any appeal is not a matter B
of right. The right of appeal is conferred by statute. A second appeal
only lies on a substantial question of law. If statute confers a limited right
of appeal, the Court cannot expand the scope of the appeal. It was not
open to the Respondent-Plaintiff to re-agitate facts or to call upon the
High Court to reanalyze or re-appreciate evidence in a Second Appeal.
C
26. Section 100 of the CPC, as amended, restricts the right of
second appeal, to only those cases, where a substantial question of law
is involved. The existence of a “substantial question of law” is the sine
qua non for the exercise of jurisdiction under Section 100 of the CPC.
27. The High Court framed the following Questions of law:- D
“1. Whether the Lower Appellate Court is right in refusing the
relief of possession especially when the Lower Appellate Court
granted relief of mesne profits till delivery of possession.?
2. Whether the Lower Appellate Court is right in holding that the
plaintiff is entitled to a declaration in respect of half of the suit E
property overlooking the pleadings and the documents of title
in the instant case?”
28. On behalf of the Appellant-Defendant, it has strenuously been
contended, and in our view, with considerable force, that there was no
question of law involved in either of the second appeals, far less any F
substantial question of law, to warrant inference of the High Court in
Second Appeal No. 64 of 2000.
29. The principles for deciding when a question of law becomes a
substantial question of law, have been enunciated by a Constitution Bench
of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & G
Mfg. Co. Ltd.1, where this Court held:-
“The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly
1
AIR 1962 SC 1314 H
778 SUPREME COURT REPORTS [2020] 7 S.C.R.

A and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by
the highest court or the general principles to be applied in
B
determining the question are well settled and there is a mere
question of applying those principles or that the plea raised
is palpably absurd the question would not be a substantial
question of law.”
30. In Hero Vinoth v. Seshammal2, this Court referred to and
C relied upon Chunilal v. Mehta and Sons (supra) and other judgments
and summarised the tests to find out whether a given set of questions of
law were mere questions of law or substantial questions of law.
31. The relevant paragraphs of the judgment of this Court in Hero
Vinoth (supra) are set out hereinbelow:-
D
“21. The phrase “substantial question of law”, as occurring
in the amended Section 100 CPC is not defined in the Code.
The word substantial, as qualifying “question of law”, means
of having substance, essential, real, of sound worth, important
or considerable. It is to be understood as something in
E contradistinction with-technical, of no substance or
consequence, or academic merely. However, it is clear that
the legislature has chosen not to qualify the scope of
“substantial question of law” by suffixing the words “of
general importance” as has been done in many other
F provisions such as Section 109 of the Code or Article 133(1)(a)
of the Constitution. The substantial question of law on which
a second appeal shall be heard need not necessarily be a
substantial question of law of general importance. In Guran
Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172]
the phrase substantial question of law as it was employed in
G the last clause of the then existing Section 100 CPC (since
omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial

2
H (2006) 5 SCC 545
NAZIR MOHAMED v. J. KAMALA AND ORS. 779
[INDIRA BANERJEE, J.]

question of law which was involved in the case. In Sir Chunilal A
case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the
Constitution Bench expressed agreement with the following
view taken by a Full Bench of the Madras High Court in
Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad
969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962
B
Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
“When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court thought
it necessary to deal with that question at some length and
discuss alternative views, then the question would be a
substantial question of law. On the other hand if the question C
was practically covered by the decision of the highest court
or if the general principles to be applied in determining the
question are well settled and the only question was of applying
those principles to the particular fact of the case it would not
be a substantial question of law.” D
32. To be “substantial”, a question of law must be debatable, not
previously settled by the law of the land or any binding precedent, and
must have a material bearing on the decision of the case and/or the
rights of the parties before it, if answered either way.
33. To be a question of law “involved in the case”, there must be E
first, a foundation for it laid in the pleadings, and the question should
emerge from the sustainable findings of fact, arrived at by Courts of
facts, and it must be necessary to decide that question of law for a just
and proper decision of the case.
34. Where no such question of law, nor even a mixed question of F
law and fact was urged before the Trial Court or the First Appellate
Court, as in this case, a second appeal cannot be entertained, as held by
this Court in Panchagopal Barua v. Vinesh Chandra Goswami3.
35. Whether a question of law is a substantial one and whether
such question is involved in the case or not, would depend on the facts G
and circumstances of each case. The paramount overall consideration
is the need for striking a judicious balance between the indispensable
obligation to do justice at all stages and the impelling necessity of avoiding

3
AIR 1997 SC 1047 H
780 SUPREME COURT REPORTS [2020] 7 S.C.R.

A prolongation in the life of any lis. This proposition finds support from
Santosh Hazari v. Purushottam Tiwari4.
36. In a Second Appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not open to
challenge in second appeal, even if the appreciation of evidence is
B palpably erroneous and the finding of fact incorrect as held in
Ramchandra v. Ramalingam5. An entirely new point, raised for the
first time, before the High Court, is not a question involved in the case,
unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this
C case may be summarised thus :
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law, is
D also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves a
E substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision
of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents, and,
F involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the
Court below has decided the matter, either ignoring or acting
G contrary to such legal principle. In the second type of cases,
the substantial question of law arises not because the law is
still debatable, but because the decision rendered on a material
question, violates the settled position of law.
4
(2001) 3 SCC 179
H 5
AIR 1963 SC 302
NAZIR MOHAMED v. J. KAMALA AND ORS. 781
[INDIRA BANERJEE, J.]

(iv) The general rule is, that High Court will not interfere with A
the concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are
where (i) the courts below have ignored material evidence
or acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law erroneously;
B
or (iii) the courts have wrongly cast the burden of proof. A
decision based on no evidence, does not refer only to cases
where there is a total dearth of evidence, but also refers to
case, where the evidence, taken as a whole, is not reasonably
capable of supporting the finding.
38. With the greatest of respect to the High Court, neither of the C
two questions framed by the High Court is a question of law, far less a
substantial question of law. There was no controversy before the High
Court with regard to interpretation or legal effect of any document nor
any wrong application of a principle of law, in construing a document, or
otherwise, which might have given rise to a question of law. There was D
no debatable issue before the High Court which was not covered by
settled principles of law and/or precedents.
39. It is nobody’s case that the decision rendered by the First
Appellate Court on any material question, violated any settled question
of law or was vitiated by perversity. It is nobody’s case that the evidence E
taken as a whole does not reasonably support the finding of the First
Appellate Court, or that the First Appellate Court interpreted the evidence
on record in an absurd and/or capricious manner. It is also nobody’s
case that the First Appellate Court arrived at its decision ignoring or
acting contrary to any settled legal principle.
F
40. The First Appellate Court examined the evidence on record at
length, and arrived at a reasoned conclusion, that the Appellant-Defendant
was owner of a part of the suit premises and the Respondent-Plaintiff
was owner of the other part of the suit premises. This finding is based
on cogent and binding documents of title, including the registered deeds
of conveyance by which the respective predecessors-in-interest of the G
Appellant-Defendant and Respondent-Plaintiff had acquired title over
the suit premises. There was no erroneous inference from any proved
fact. Nor had the burden of proof erroneously been shifted.
41. The second question of law, that is, the question of whether
the First Appellate Court was right in holding that the plaintiff was entitled H
782 SUPREME COURT REPORTS [2020] 7 S.C.R.

A to a declaration of title in respect of half of the suit property, has, as
observed above, been decided in favour of the Respondent Plaintiff,
based on pleadings and evidence. The conclusion of the First Appellate
Court, of the entitlement of the Respondent Plaintiff to a declaration in
respect of his half share in the suit property does not warrant interference
in a second appeal.
B
42. The first question framed by the High Court, that is, the question
of whether the Lower Court /Appellate Court was right in refusing the
Respondent Plaintiff relief of possession, when the Appellate Court had
granted mesne profits to the Respondent Plaintiff, is based on the
erroneous factual premises that the First Appellate Court had granted
C mesne profits to the Respondent Plaintiff, which the First Appellate Court
had not done.
43. The first question is not at all a question of law, far less any
substantial question of law involved in the case. The High Court held:-
D “8. Substantial Question of law No. 1:-
After declaring one half right in respect of the plaint schedule
property, the learned first appellate Judge has refused the
relief for recovery of possession on the ground that the
defendants have produced the documents to show that they
E are in possession and enjoyment of the property (Ex.B9 to
B.32). There is no pleadings in the written statement filed by
the defendant that he has prescribed title by way of adverse
possession in respect of the entire plaint schedule property.
The learned first appellate Judge at one place has rejected
the relief of delivery of recovery of possession in respect of
F the suit property has granted mesne profit for three years
prior to the institution of the suit. Both the above said findings
are diametrically opposite to each other. Once the recovery
of possession is denied, then there is no question of granting
any mesne profit arises. After declaring one half right in the
G plaint schedule property in favour of the plaintiff, the learned
appellate Judge ought to have granted recovery of possession
also in respect of one half share in the plaint schedule
property. Both the courts below have concurrently held that
there is not landlord-tenancy relationship between the plaintiff
and the defendant. Under such circumstances, there is no
H question of mesne profit arises in this case. So far as the
NAZIR MOHAMED v. J. KAMALA AND ORS. 783
[INDIRA BANERJEE, J.]

refusal of the relief of recovery of possession in respect of A
the half of the plaint schedule property by the learned first
appellate Judge, warrants interference from this Court.
Substantial Question of Law No.1 is answered accordingly.
9. In fine, the Second Appeal No.558 of 2000 is allowed and
the decree and judgment of the learned first appellate Judge B
in A.S. No.16/1998 on the file of the Court of Subordinate
Judge, Kumbakonam is set aside in respect of dismissal of
the suit for recovery of possession in respect of half of the
plaint schedule property. The plaintiff is entitled to recover
half of the plaint schedule property after identifying the same
with the help of an Advocate Commission at the time of C
execution of the decree In other respects, the decree of the
learned first appellate Judge in A.S. No.16/1998 on the file
of the Court of Subordinate Judge, Kumbakonam is hereby
confirmed. Second Appeal No. 64 of 2000 is dismissed. No
costs. Consequently, connected miscellaneous petition is D
closed.”
44. The High Court, with greatest of respect, has patently erred
in its conclusion that there was contradiction in the findings of the First
Appellate Court, in that the First Appellate Court had declined the
Respondent Plaintiff the relief of delivery of possession of the suit property E
but had granted the Respondent Plaintiff mesne profits for three years,
prior to the institution of the suit.
45. ‘Mesne profits’ are profits which a person in wrongful
possession of property might have derived, but would not include profits
due to improvements. There is no finding of the Appellant-Defendant F
being in wrongful possession of any part of the suit premises either by
the Trial Court or by the First Appellate Court. The First Appellate Court
has, nowhere used the expression ‘mesne profit’. What the High Court
granted to the Respondent-Plaintiff was in the nature of reimbursement
of profit derived by the Appellant by use, occupation and enjoyment of
the Respondent-Plaintiff’s portion of the suit premises and/or in other G
words reimbursement of income from the said portion of the suit premises
or charges for use, occupation and enjoyment thereof.
46. A decree of possession does not automatically follow a decree
of declaration of title and ownership over property. It is well settled that,
where a Plaintiff wants to establish that the Defendant’s original H
784 SUPREME COURT REPORTS [2020] 7 S.C.R.

A possession was permissive, it is for the Plaintiff to prove this allegation
and if he fails to do so, it may be presumed that possession was adverse,
unless there is evidence to the contrary.
47. The Appellant-Defendant has in his written statement in the
suit, denied the title and ownership of the Respondent-Plaintiff to the
B suit property. The Appellant-Defendant has asserted that the Appellant-
Defendant is the owner of the suit property and has been in possession
and in occupation of the suit premises as owner from the very inception.
48. In our considered opinion, the High Court erred in law in
proceeding to allow possession to the Respondent-Plaintiff on the ground
C that the Appellant-Defendant had not taken the defence of adverse
possession, ignoring the well established principle that the Plaintiff’s claim
to reliefs is to be decided on the strength of the Plaintiff’s case and not
the weakness, if any, in the opponent’s case, as propounded by the Privy
Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC
201.
D
49. From the pleadings filed by the Appellant-Defendant, it is
patently clear that the Appellant-Defendant claimed the right of ownership
of the suit property on the basis of a deed of conveyance, executed over
75 years ago. The Appellant-Defendant has claimed continuous
possession since the year 1966 on the strength of a deed of release
E executed by his father. In other words, the Appellant-Defendant has
claimed to be in possession of the suit premises, as owner, for almost 28
years prior to the institution of suit.
50. In the facts and circumstances of this case, where the
Appellant-Defendant was owner of only a portion of the suit property
F but has admittedly been in possession of the entire suit property, and the
Appellant-Defendant has, in his written statement, claimed to be in
continuous possession for years as owner, the defence of the Appellant
in his written statement was, in effect and substance, of adverse
possession even though ownership by adverse possession had not been
G pleaded in so many words. It is, however not necessary for this Court to
examine the question of whether the Appellant-Defendant was entitled
to claim title by adverse possession or not.
51. A person claiming a decree of possession has to establish his
entitlement to get such possession and also establish that his claim is not
barred by the laws of limitation. He must show that he had possession
H
before the alleged trespasser got possession.
NAZIR MOHAMED v. J. KAMALA AND ORS. 785
[INDIRA BANERJEE, J.]

52. The maxim “possession follows title” is limited in its application A
to property, which having regard to its nature, does not admit to actual
and exclusive occupation, as in the case of open spaces accessible to
all. The presumption that possession must be deemed to follow title,
arises only where there is no definite proof of possession by anyone
else. In this case it is admitted that the Appellant-Defendant is in possession
B
and not the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is
governed by the Limitation Act, 1963. Section 3 of the Limitation Act
bars the institution of any suit after expiry of the period of limitation
prescribed in the said Act. The Court is obliged to dismiss a suit filed
after expiry of the period of limitation, even though the plea of limitation C
may not have been taken in defence.
54. The period of limitation for suits for recovery of immovable
property is prescribed in Part V of the Schedule to the Limitation Act,
1963, and in particular Articles 64 and 65 thereof set out hereinbelow for
convenience:- D

“PART V.— Suits Relating to Immovable Property..
Description of suit Period of Time from which period begins
Limitation to run
……….

64. For possession of immovable property based on previous Twelve years. The date of dispossession.
possession and not on title, when the plaintiff while in possession E
of the property has been dispossessed.
65. For possession of immovable property or any interest therein Twelve years. When the possession of the
based on title; defendant becomes adverse to
Explanation.- For the purposes of this article - the plaintiff.

(a) where the suit is by a remainderman, a reversioner (other
than a landlord) or a devisee, the possession of the defendant
shall be deemed to become adverse only when the estate of the
remainderman, reversioner or devisee, as the case may be, falls
into possession; F
(b) where the suit is by a Hindu or Muslim entitled to the
possession of immovable property on the death of a Hindu or
Muslim female, the possession of the defendant shall be deemed
to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a
decree when the judgment-debtor was out of possession at the
date of the sale, the purchaser shall be deemed to be a G
representative of the judgment-debtor who was out of possession

55. In the absence of any whisper in the plaint as to the date on
which the Appellant-Defendant and/or his Predecessor-in-interest took
possession of the suit property and in the absence of any whisper to
show that the relief of decree for possession was within limitation, the
H
786 SUPREME COURT REPORTS [2020] 7 S.C.R.

A High Court could not have reversed the finding of the First Appellate
Court, and allowed the Respondent-Plaintiff the relief of recovery of
possession, more so when the Appellant-Defendant had pleaded that he
had been in complete possession of the suit premises, as owner, with
absolute rights, ever since 1966, when his father had executed a Deed
of Release in his favour and/or in other words for over 28 years as on
B
the date of institution of the suit.
56. As held by the Privy Council in Peri v. Chrishold reported in
(1907) PC 73, it cannot be disputed that a person in possession of land in
the assumed character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the world but the
C
rightful owner...and if the rightful owner does not come forward and
assert his right of possession by law, within the period prescribed by the
provisions of the statute of limitation applicable to the case, his right is
forever distinguished, and the possessory owner acquires an absolute
title.
D 57. The condition precedent for entertaining and deciding a second
appeal being the existence of a substantial question of law, whenever a
question is framed by the High Court, the High Court will have to show
that the question is one of law and not just a question of facts, it also has
to show that the question is a substantial question of law.
E 58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar6,
this Court held:
“After the amendment a second appeal can be filed only if a
substantial question of law is involved in the case. The
memorandum of appeal must precisely state the substantial
F question of law involved and the High Court is obliged to
satisfy itself regarding the existence of such a question. If
satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required
to be heard on the question so formulated. However, the
G respondent at the time of the hearing of the appeal has a
right to argue that the case in the court did not involve any
substantial question of law. The proviso to the section
acknowledges the powers of the High Court to hear the appeal
on a substantial point of law, though not formulated by it
6
H (1999) 3 SCC 722
NAZIR MOHAMED v. J. KAMALA AND ORS. 787
[INDIRA BANERJEE, J.]

with the object of ensuring that no injustice is done to the A
litigant where such a question was not formulated at the time
of admission either by mistake or by inadvertence”
“It has been noticed time and again that without insisting
for the statement of such a substantial question of law in the
memorandum of appeal and formulating the same at the time B
of admission, the High Courts have been issuing notices and
generally deciding the second appeals without adhering to
the procedure prescribed under Section 100 of the Code of
Civil Procedure. It has further been found in a number of
cases that no efforts are made to distinguish between a question
C
of law and a substantial question of law. In exercise of the
powers under this section the findings of fact of the first
appellate court are found to have been disturbed. It has to be
kept in mind that the right of appeal is neither a natural nor
an inherent right attached to the litigation. Being a substantive
statutory right, it has to be regulated in accordance with law D
in force at the relevant time. The conditions mentioned in the
section must be strictly fulfilled before a second appeal can
be maintained and no court has the power to add to or enlarge
those grounds. The second appeal cannot be decided on
merely equitable grounds. The concurrent findings of facts
E
howsoever erroneous cannot be disturbed by the High Court
in exercise of the powers under this section. The substantial
question of law has to be distinguished from a substantial
question of fact.”
“If the question of law termed as a substantial question stands
already decided by a larger Bench of the High Court F
concerned or by the Privy Council or by the Federal Court
or by the Supreme Court, its merely wrong application on the
facts of the case would not be termed to be a substantial
question of law. Where a point of law has not been pleaded
or is found to be arising between the parties in the absence G
of any factual format, a litigant should not be allowed to
raise that question as a substantial question of law in second
appeal. The mere appreciation of the facts, the documentary
evidence or the meaning of entries and the contents of the
document cannot be held to be raising a substantial question
H
788 SUPREME COURT REPORTS [2020] 7 S.C.R.

A of law. But where it is found that the first appellate court has
assumed jurisdiction which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a substantial
question of law. Where the first appellate court is shown to
have exercised its discretion in a judicial manner, it cannot
be termed to be an error either of law or of procedure requiring
B
interference in second appeal.”
59. When no substantial question of law is formulated, but a Second
Appeal is decided by the High Court, the judgment of the High Court is
vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda
Ghose7. Formulation of substantial question of law is mandatory and the
C mere reference to the ground mentioned in Memorandum of Second
Appeal can not satisfy the mandate of Section 100 of the CPC.
60. The judgment and order of the High Court under appeal does
not discuss or decide any question of law involved in the case, not to
speak of substantial question of law.
D
61. Just as this Court has time and again deprecated the practice
of dismissing a second appeal with a non-speaking order only recording
that the case did not involve any substantial question of law, the High
Court cannot also allow a second appeal, without discussing the question
of law, which the High Court has done.
E
62. For the reasons discussed above, the appeals are allowed.
The judgment and order of the High Court under appeal is set aside to
the extent Second Appeal No.558 of 2000 has been allowed and the
judgment and decree of the First Appellate Court is restored.

F
Kalpana K. Tripathy Appeals allowed.

G

7
H AIR 2014 SC 152