Supreme Court of India
NUNE PRASAD AND ORS.versusNUNE RAMAKRISHNA
- Citation
- 2008 INSC 875
- Decided
- 29 July 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
A second appeal under Section 100 CPC is invalid unless the High Court formulates a substantial question of law and hears the appeal on that question.
Summary
The appellant-plaintiffs Nune Prasad & Ors filed a suit asserting ownership of a property. The trial court and the first appellate court upheld their claim. The defendant filed a second appeal under Section 100 of the Code of Civil Procedure before the High Court, which set aside the lower judgments without formulating any substantial question of law. The appellants challenged this, arguing that Section 100 requires the High Court to frame and hear the appeal on a substantial question of law. The Supreme Court held that the High Court failed to comply with the statutory requirement, rendering its judgment void. Consequently, the Supreme Court set aside the High Court order and remitted the matter for fresh proceedings in accordance with the law.
Issues considered
- Whether the High Court was justified in allowing a second appeal under Section 100 CPC without formulating a substantial question of law.
Legislation cited
Subjects
Section 100 CPCsecond appealsubstantial question of lawhigh court jurisdictioncivil procedureremand
Judgment
, [2008] 11 S.C.R. 435
NUNE PRASAD AND ORS. A
v.
NUNE RAMAKRISHNA
(Civil Appeal No; 4701 of 2008)
JULY 29, 2008
8
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Code of Civil Procedure, 1908 - s. 100 - Second ap-
peal-:- Substantial question of law - Non-formulation .:. Eff~ct c
of - On facts, second appeal allowed by High Court - Order
does not show that substantial question of law was formulated
or appeal was heard on any question so formulated - Thus,
order of High Court set aside - Matters remitted to High Court.
The question which aros~ for consideration in this D
appeal was whether the High Court was justified in al-
~
lowing the second appeal without framing any substan-
tial question~ of law as mandated by s. 100 of the Code of
Civil Procedure, 1908.
Disposing of the appeal, the Court E
HELD: 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. F
,._...(
That being so, the judgment cannot be maintained, which
is set aside and remitted back to the High Court for pro-
c~~ding in the matter in accordance with law and fn terms
of observat_ions made herein. [Para 5] [438-D-E]
lshwar Dass Jain v. Sohan Lal 2000 (1) SCC 434;_Roop G
Singh v. Ram Singh 2000 (3) SCC 708; Kanhaiyalal and Ors.
v. An_upkumar and Ors_. 2003 (1) SCC 430; Mathakala
-'\r
Krishnaiah v. V Rajagopal 2004(10) SCC 676; Smt. Ram
Sakhi Devi v. Chhatra Devi and Ors.: JT 2005 (6) SC 167;
~
435 H
436 SUPREME COURT REPORTS [2008] 11 S.C.R.
A Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors. 2005
(12) SCC 588; Gian Dass v. The Gram Panchayat Village
Sunner Kalan and Ors. 2006 (6) SCC 271; Shah Mansukhla/
Chhaganial (d) through Lrs. v. Gohil Amarsing Govindbhai (d)
through Lrs. 2006(13) SCALE 99 - relied on.
B Case Law Reference
2000 (1 > sec 434 Relied on. Para 6
2000 (3) sec 108 Relied on. Para 7
2003 (1) sec 430 Relied on. Para 8
c
2004 (1 O) sec 676 Relied on. Para 8
JT 2005 (6) SC 167 Relied on. Para 8
2005 (12) sec 588 Relied on. Para 8
2006 (6) sec 211 Relied on. Para 8
D
2006 (13) SCALE 99 Relied on. Para 8
CIVILAPPELLATE JURISDrCTION: Civil Appeal No. 4701
of 2008
E From the final Judgment and Order dated 28.3.2006 of
the High Court of Andhra Pradesh at Hyerabad in Second Ap-
peal No. 512 of 2001
T.V. Ratnam for the Appellants.
F Anjani Aiyagari for the Respondent.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
G Single Judge of the High Court of Andhra Pradesh at Hyderabad
allowing the second appeal filed by the respondent under Sec-
tion 100 of the Code of Civil Procedure, 1908 (in short 'CPC').
3. Factual background in a nutshell is as follows:
H The appellant-plaintiff filed O.S. No.78of1990 before the
NUNE PRASAD & ORS. v. NUNE 437
RAMAKRISHNA [DR. ARIJIT PASAYAT, J.] ·
Sub-Court, Ramachandrapuram, East Godavari District, Andhra A
Pradesh against the respondent-defendant. The Trial Court by
the judgment and order dated 27.06.1995 held that the plaintiffs
are the owners of the schedule property and they being the own-
ers of the schedule property are entitled to possession.Aggrieved
by the judgment and decree of the Trial court, the respondent- B
---(' defendant preferred an appeal in the Court of Additional District
Judge, Rajahmundry, East Godavari District. By judgment and
order dated 14.06.2001, the first appellate court confirmed the
Trial Court's judgment. The respondent-defendant preferred a
second appeal under Section 100 C.P:C. before the High Court
of Andhra Pradesh at Hyderabad, being Second Appeal No.512
c
of 2001. By the impugned judgment, the learned Single Judge
allowed the second appeal and the judgments and decree passed
by the courts below were set aside.
Though many points have been urged in support of the D
appeal, the primary stand of the learned counsel for the appel-
~ !ants 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
E
question of law was framed yet learned Single Judge has al-
lowed the appeal after analyzing the factual position in the back-
ground of settled principles in law.
4. Section 100 of CPC deals with "Second Appeal". The
provision reads as follows: F
~ "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 G
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 H
438 SUPREME COURT.REPORTS [2008] 11 S.C.R
A appeal shall precisely state the substantial question of
law involved i~ 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 ..
B
(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
c , 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."
5. A perusal of the impugned judgment passed by the High ~
I
D 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 can-
not be maintained, which is set aside and remitted back to the.
High Court for proceeding in the matter in accordance with law
E and in terms of observations made herein.
'6. In lshwar Dass Jain v. Sohan
.
Lal (2000 (1) SCC
'-
434),
this Court in para 10, h~s stated thus: .
"10. Now under Section 100 CPC, after the- 1976- _
Amendment, it is essential for the High Court to formulate a
F
substantial question of law and it is not permissible to reverse
the· judgment of the first appellate Court without doin_g so."
7. Yet again in Roop Singh v~ Ram Singh (2000 (3) SCC
708), this Court has ~xpress-ed that the jurisdiction of a High
G Court is confined to ap~!s involving substantial question· of
law. Para 7 ofthe said judgment r~ads:
"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 involv.e a substantial
H question of law and it does not confer·any_juris~iction on
NUNE PRASAD & ORS. v. NUNE 439
RAMAKRISHNA [DR ARiJIT PASAYAT, J.]
-r-
the High Court to interfere with pure questions of fact while A
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 B
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 c
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 D
--1 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. Aniind Kumar (1994 (6) SCC 591 ). E
Hence the High Court ought not to have interfered with the
findings of fact recorded by both the courts below."
8. 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 F
~
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
Chhaganjal (d) through Lrs V Gohil Amarsing Govindbhai (d)
G
,.through Lrs. (2006(13) SCALE 99).
~- -9. The appeal stands disposed of in the above terms.
There will be no order as to costs.
N.J. Appeal disposed of. H
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