Holding

A second appeal can be admitted only if a substantial question of law is identified; the High Court’s omission of such a formulation makes its order untenable.

Summary

The plaintiff, represented by his legal heirs, sued the defendants for ownership and possession of agricultural land, claiming inheritance rights, while the defendants relied on a will. The trial court granted only symbolic possession to the plaintiff, and both parties appealed. The High Court dismissed the plaintiff's second appeal and allowed the defendant's, without formulating any substantial question of law as required under Section 100 of the CPC. The Supreme Court held that admission of a second appeal mandates the identification of a substantial question of law, and the High Court’s failure to do so rendered its order unsustainable. Consequently, the Supreme Court set aside the High Court’s judgment and remanded the matter for fresh determination of the second appeals in accordance with the law.

Issues considered

Whether the High Court correctly admitted and decided the second appeals without formulating a substantial question of law under Section 100 of the Code of Civil Procedure, 1908.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

second appealsubstantial question of lawSection 100 CPCinheritance disputeland ownershipappellate jurisdiction

Judgment

[2017] 7 S.C.R. 731

RAM CHAND (DECEASED) THROUGH L.RS. & ORS. A

v.
UDAI SINGH@ DAYA RAM & ORS.
(Civil Appeal Nos. 11107-11108 of 2017) B
AUGUST 24, 2017
[R.K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.I
Code of Civil Procedure, 1908:
s. JOO - Second appeal - Suit for declaration o.f right, title C
and interest in the suit property - Suit decreed giving only symbolic
possession to the plaintiff - Cross appeals (first appeal) - Dismissed
- Second appeal by plaintiff as well as defendant - Decided in
favour of defendant by High Court - On appeal, held: Since the
High Court failed to frame substantial questions o.f law as is required D
to be framed at the time of admission of the second appeal, the
impugned order is not sustainable - Case remanded to High Court
for deciding the second appeals afresh in accordance with law.
Allowing the appeals, the Court
Hj:LD: 1. In order to admit the second appeal, what is E
required to be made out by the appellant being sine qua non for
exercise of powers under Section 100 of CPC is existence of
"substantial question of law" arising in the case so as to empower
the High Court to admit the appeal for final hearing by formulation
on such question. In the absence of any substantial question
arising in appeal, the same merits dismissal in li111i11e on the F
ground that the appeal does not involve any substantial question
of law within the meaning of Section 100 of CPC. [Para 171 [735-
A-B 1
2. In the present case, the High Court while disposing of
second appeals filed by the both parties did not frame any G
substantial question of law as is required to be framed at the time
of admission of the second appeal and proceeded to allow the
appeal filed by the defendants and dismiss the appeal filed by the
plaintiff. Th"erefore, the impugned order is not legally sustainable
and thus liable to be set aside.The case is remanded to the High H
731
732 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Court for deciding the second appeals afresh in accordance with
Jaw. [Paras 15, 19 and 201 1734-D; 735-D-EI
Santosh Hazari v. Purushottam Tiwari (Deceased) by
L.Rs., (2001) 3 SCC 179: I 20011 1 SCR 948 - relied
on.
B Case Law Reference
(2001] 1 SCR 948 relied on Para 16

CIVIL APPELLATE JURISDICTION: Civil Appeal
C Nos. 11107-11108 of2017.
From the impugned Final Judgment and Order dated 21.11.2011
passed by the High Court of Punjab and Haryana in R.S.A.
No.1791/1980 and R.S.A. No.2037.
D Mahabir Singh, Sr. Adv., A.P. Jain, Ram Niwas, Anurag Jain,
Ms. N. Annaporani, Advs. for the Appellants.
R.S Sihota, Sr. Adv., P.l. Jose, Shashank Mishra, Ms. Pooja
Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
E ABHAY MANOHAR SAPRE, J. Leave granted.
1.These appeals are filed by the legal representatives of original
plaintiff against the common final judgment and order dated 21.11.2011
passed by the High Court of Punjab & Haryana at Chandigarh in Regular
Second Appeal Nos. 1791and2037of1980 whereby the High Court
F dismissed RSA No.1791 of 1980 filed by the appellants (plaintiff) and
allowed R.S.A. No.2037of1980 filed by the respondents (defendants).
2. We herein set out the facts, in brief, to appreciate the issue
involved in these appeals.
G 3. The dispute in the suit out of which this appeal arises relates to
agricultural lands comprises of Khewat No. 280 Khata No. 350 Rect.
No. 258 Killa No. 25 area 5 kanal, Reel. No. 295 Killa No. 5 area -01
maria, Rect. No. 214 Killa 11 area 5 kanals 12 marlas, killa no. 12 area
8 kanal, Rect. Np. 255 Killa No. 6/1 area 2 kanals I 0 marlas, 6/2 area 2
kanals 17 marlas, 7I1 area 4 kanals 3 marl as, 712 are.a 3 killa 17 marlas
H
RAM CHAND (DECEASED) THR. L.RS. & ORS. v. UDAI 733
SINGH @DAYA RAM & ORS.[ABHAY MANOHAR SAPRE, J.]

Killa 8 area 8 kanals, Rect. 258 killa 16 area 6 kanals 6 marlas, killa 24 A
. area 8 kanals, total area 54 kanals 6 marlas situated in Patti Bedha,
Hodel (hereinafter referred to as the "suit land").
4. The plaintiff (Ram Chand) since dead and now represented by
his legal representatives (appellants herein) filed a civil suit out of which
these appeals arise against the respondents (defendants) claiming right; B
title and interest in the suit land. The plaintiff(appellants) also claimed
possession of the suit lands from the defendants (respondents).
5. The claim of the plaintiff, in substance, is based on the law of
inheritance. It is, inter alia, alleged in the plaint that the suit land originally
belonged to one Hiri, son ofBhondu and on his death, the plaintiff claimed c
his right, title and interest in the suit land as one of the nearest heirs of
the deceased Hiri through inheritance.
6. The defendants (respondents) denied the claim of the plaintiff
and further denied his right to claim the ownership of the suit land by
inheritance through Hiri. The defendants then claimed ownership over D
. the suit land on the basis of a Will said to have been executed in their
favour by the erstwhile owner of the suit land.
7. So the basic question, involved in the suit, was who is the owner
of the suit land-plaintiff or the defendants.
8. By judgment/decree dated 24.12.1979, the Trial Court (sub- E
Judge, !st Class), Palwal decreed the suit against the defendants for
possession and held that the plaintiff would be entitled to get only symbolic
possession of the suit land because the suit land was in possession of
Ram Narain (defendant No.5) as tenant.
9. Being aggrieved by the said judgment/decree, both the parties F
filed first appeals before the District Judge, Gurgaon being Civil Appeal
Nos. 5 and 6 of 1980.
10. The District Judge, byhisjudgmentandorder dated 09.04.1980,
dismissed both the appeals and affirmed the judgment/decree passed by
the Trial Court. G
11. Against the said judgment, both plaintiff and defendants filed
second appeals before the High Court being R.S.A. No. 1791 of 1980
(filed by the plaintiff) and R.S.A. No.2037 of 1980 (filed by the
defendants).
H
734 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 12. The High Comt, by the impugned common judgment and order
dated21.l l .2011, dismissed R.S.A. No.1791 of! 980 filed by the plaintiff
and allowed RS.A. No.2037 of 1980 filed by the defendants. As a
result, the suit came to be dismissed.
13. Against the said judgment, the legal representatives of the
B original plaintiff, filed these appeals by way of special leave before this
Court.
14. Having heard the learned counsel for the parties and on pernsal
of the record of the case, we are constrained to allow the appeals and
~. while set~ing aside the impugned judgment, remand the case to the High
c Court for deciding the second appeals afresh in accordance with law as
indicated below.
15. The reasons to remand the case to the High Court has
occasioned due to the reason that the High Court while disposing of
second appeals filed by the both parties did not frame any substantial
D question of law as is required to be framed at the time of admission of
the second appeal and proceeded to allow the appeal filed by the
defendants and dismiss the appeal filed by the plaintiff.
16. A three Judge Bench of this Court in Santosh Hazari vs.
Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 had
E examined the scope of Section I 00 of the Code of Civil procedure, 1908
(hereinafter referred to as "the Code"). Justice R. C. Lahoti (as His
Lordship then was) speaking for the Bench laid down the following
proposition oflaw in Para 9:
"9. The High Court cannot proceed to hear a second appeal
without formulating the substantial question of law involved
F
in the appeal and if it does so it acts illegally and· in
abnegation or abdication of the duty cast on Court. The
existence of substantial question of la'l'I' is the sine qua non
for the exercise of the jurisdiction under the amended
Section 100 of the Code. (Sec Kshitish Chandra Purkait v.
G Santosh Kumar Purkait,(1997) 5 SCC 438 Pa11ch11gopal
Barna v. Umesh Chandra Goswami, (1997) 4 SCC 413 and.
Kondiba Dagadu Kaclam v. Saritribai Sopan G11jai; (1999) 3
sec 722.)"

H
RAM CHAND (DECEASED) THR. L.RS. & ORS. v. UDAI 735
SINGH @DAYA RAM & ORS.[ABHAY MANOHAR SAPRE, J.]

17. His Lordship then in Paras 10 to 14 succir.ctly explained the A
meaning of the words "substantial question of law" and "question of
law" and held that in order to admit the second appeal, what is required
to be made out by the appellant being sine qua non for exercise of
· powers under Section 100 of the Code, is existence of "substantial
question oflaw" arising in the case so as to empower the High Court to
B
admit the appeal for final hearing by formulation on such question. ln
the absence of any substantial question arising in appeal, the same merits
dismissal in limine on the ground that the appeal does not involve any
substantial question of law within the meaning of Section 100 of the
Code.
18. Perusal of the impugned order shows that no such question c
was formulated except to riote the submissions of learned counsel for
the appellants that it so arises but not beyond that as to whether it actually
arises and, if so, · vhat is that question.
19. ln the light of foregoing discussion and keeping in view the
law laid down in the case of Santosh Hazari (supra), we are of the D
considered view that the impugn~d order is not legally sustainable and
thus liable to be set aside.
20. As a result, the appeals succeed and are allowed. Impugned
order is set aside. The case is remanded to the High Court for deciding
the second appeals afresh in accordance with law keeping in view the E
law laid down in Santosh Hazari (supra).

Kalpana K. Tripathy Appeals allowed.