Holding

A second appeal under Section 100 CPC is permissible only if the High Court formulates a substantial question of law; reversal of a lower appellate decree without such formulation is illegal.

Summary

Umerkhan appealed to the Supreme Court against a judgment of the Bombay High Court that had set aside the first appellate court's decree in a partition suit and restored the trial court's decree. The High Court had entertained the second appeal under Section 100 of the Code of Civil Procedure, 1908, but did not formulate any substantial question of law before reversing the lower appellate decision. The Supreme Court held that a second appeal can be heard by the High Court only when it is satisfied that a substantial question of law exists and that such question must be formulated and decided. Since the High Court reversed the decree without formulating a substantial question, its judgment was illegal. Consequently, the Supreme Court set aside the High Court's order and remitted the second appeal back to the High Court for fresh consideration in accordance with the law.

Issues considered

Whether the High Court had jurisdiction to entertain a second appeal under Section 100 CPC without formulating a substantial question of law.
Whether reversal of a lower appellate decree without such formulation is permissible.
Whether the High Court may reframe or decide that no substantial question of law exists at the hearing of a second appeal.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 101, s. 103

Subjects

Second appealSection 100 CPCSubstantial question of lawJurisdictionAdverse possessionPartition suitHigh Court

Judgment

[2011] 9 S.C.R. 551
...,._
UMERKHAN A
v.
BISMILLABI @ BABULAL SHAIKH & ORS.
(Civil Appeal No. 6034 of 2011)
I JULY 28, 2011
"t
B
[AFTAB ALAM AND R.M. LODHA, JJ.]

Code of Civil Procedure, 1908 - s. 100 - Second appeal
- Jurisdiction of the High Court - Held: Second appeal is
entertainable by the High Court only upon its satisfaction that c
a substantial question of law is involved in the matter and its
formulation thereof - However, it is open to the High Court to
reframe substantial question of law or frame substantial
.., question of law afresh or hold that no substantial question of
law is involved at the time of hearing the second appeal - On D
\
facts, the High Court interfered with the judgment and decree
of the first appellate court without formulating the substantial
question of law - Thus, the judgment of the High Court in the
second appeal is set aside and the matter is remitted back
to the High Court for consideration afresh. E
The plaintiff-respondent filed a suit for partition and
separate possession against her brother (1st defendant}
and her sister (2nd defendant). The trial court decreed the
, '--..
suit declaring that the plaintiff and 2nd defendant were
entitled to 1/4th share each and 1st defendant was F
entitled to 1/2 share in the suit property. The defendant
filed the first appeal. The first appellate court set aside
order of the trial court holding that 1st defendant became
the owner of the suit property -by adverse possession .
• The plaintiff filed a second appeal and the High Court G
_,)
allowed the same. Therefore, 1st defendant-appellant
filed the instant appeal.
Allowing the appeal, the Court
551 H
552 SUPREME COURT REPORTS [2011] 9 S.C.R.
' 'r
A HELD: The very jurisdiction of the High Court in
hearing a second appeal is founded on the formulation
of a substantial question of law. The judgment of the High
Court is rendered patently illegal, if a second appeal is
heard and judgment and decree appealed against is t

B reversed without formulating a substantial question of +
law. The second appellate jurisdiction of the High Court
under Section 100 CPC is not akin to the appellate
jurisdiction under Section 96 of the Code; it is restricted
to such substantial question or questions of law that may
c arise from the judgment and decree appealed against. As
a matter of law, a second appeal is entertainable by the
High Court only upon its satisfaction that a substantial
question of law is involved in the matter and its
,.
formulation thereof. Section 100 of the Code provides that
the second appeal shall be heard on the question so
D
formulated. It is, however, open to the High Court to
reframe substantial question ot law or frame substantial
question of law afresh or hold that no substantial
question of law is involved at the time of hearing the
second appeal but reversal of the judgment and decree
E passed in appeal by a court subordinate to it in exercise
of jurisdiction under Section 100 of the Code is
impermissible without formulating substantial question of
law and a decision on such question. The constraints of ')
Section 100 of the Code and the mandate of the law
F contained in Section 101 that no second appeal shall lie
except on the ground mentioned in Section 100, yet it
appears that the fundamental legal position concerning
jurisdiction of the High Court in second appeal is ignored
and overlooked time and again. In the instant matter, '
G unfortunately the High Court interfered with the judgment ' "
and decree of the first appellate court in total disregard
of the legal position. Thus, the impugned judgment of the •
High Court is set aside. The second appeal is restored
to the file of the High Court for fresh consideration in
H
UMERKHAN v. BISMILLABI @ BABULAL SHAIKH & 553
ORS.
accordance with law. [Paras 13 .and 19] [558-E,H; 559-A- A
C; 560-F-G]

lshwar Dass Jain (Dead) through LRs. v. Sohan Lal
(Dead) by LRs. (2000) 1 SCC 434: 1999 (5) Suppl. SCR 24;
Roop Singh (Dead) through L. Rs., v. Ram Singh (Dead)
through L.Rs. (2000) 3 SCC 708: 2000 ( 2) SCR 605; Chadat B
Singh V.. Bahadur Ram and Ors. (2004) 6 SCC 359: 2004 (3)
Suppl. SCR 298; Sasikumar and Ors. v. Kunnath Che/lappan
Nair and Ors. (2005) 12 SCC 588: 2005 (4) Suppl. SCR 363;
C.A. Sulaiman and Ors. v. State Bank of Travancore, Alwayee
and Ors. (2006) 6 SCC 392: 2006 (4) Suppl. SCR 152; C
Municipal Committee, Hoshiarpur v. Punjab State Electricity
Board andOrs. (2010) 13 SCC 216: 2010 (13) SCR 658 -
referred to.
Case Law Reference: D
1999 (5) Suppl. SCR 24 Referred to. Para 14
2000 (2) SCR 605 Referred to. Para 15
2004 (3) Suppl. SCR 298 Referred to. Para 16
E
2005 (4) Suppl. SCR 363 Referred to. Para 17
2006 (4) Suppl. SCR 152 Referred to. Para 17
2010 (13 ) SCR 658 Referred to. Para 18
CIVIL APPELLATE JURISDICTION : Civil Appeal No. F
3064 of 2011.

From the Judgment & Order dated 27.11.2009 of the High
Court of Judicature a Bombay, Bench at Aurangabad in Second
...- J Appeal No. 528 of 2011. G
P.G. Godhamgoankar (for Chandan Ramamurthi) for the
Appellant.
Nitin Lonkar, Prashant R. Dahat, Rauf Rahim for the
Respondents. H
554 SUPREME COURT REPORTS [2011] 9 S.C.R

A The Judgment of the Court was delivered by

R.M. LODHA, J. 1. Leave granted.

2. This appeal, by special leave, has been preferred by
the original 1st defendant against the judgment of the High
B Court of Judicature of Bombay, Aurangabad Bench whereby \

the learned Single Judge of that Court reversed the judgment
and decree passed in the appeal by the Additional District
Judge, Osmanabad and restored the judgment and decree of
the trial court.
c
3. Sardar Khan was the owner of a property bearing land
Block No. 386 and House No. 206 situate at Mangrul, Taluqa
Kallam, District Osmanabad. He died in 1948 leaving behind
a son -Umerkhan and two daughters-Bismillabi and Aminabi.
D Both daughters were minor at the time of the death of their
father. They got married later. Bismillabi (hereinafter referred
to as, 'plaintiff') filed a su't for partition and separate
possession to the extent of 1/4th share in the above property
against her brother Umerkhan (hereinafter referred to as, '1st
E defendant') and her sister Aminabi (hereinafter referred to as,
'2nd defendant'). The plaintiffs case in the plaint was that as
per the Muhammadan Law, the 1st defendant has 1/2 share
while the 2nd defendant like her has 1/4th share in the suit
property.

F 4. The 1st defendant contested the suit on diverse
grounds. Inter alia, a plea was taken by him that plaintiff has
been ousted of her right, title and possession in 1967 and the
suit having been brought in 1990 was not only barred by
limitation but also he has acquired title by adverse possession
G as he has been holding hostile possession over the property
to the knowledge of the plaintiff. The 2nd defendant did not file
'
any written statement and the suit proceeded against her ex-
parte.

5. The trial court framed as many as four issues; issue no.
H
-- UMERKHAN v. BISMILLABI @ BABULAL SHAIKH & 555
ORS. [R.M. LODHA, J.]
4 being whether 1st defendant has proved that he has become A
owner of the suit property by adverse possession. The trial
court recorded the evidence and after hearing the advocates
for the plaintiff and the 1st defendant vide its judgment and
,. j decree dated October 18, 1993 declared that plaintiff and 2nd
\. defendant were entitled to 1/4th share each and the 1st 8
defendant was entitled to 1/2 share in the suit property. The trial
court ordered for effecting partition by metes and bounds
accordingly.

6. Against the judgment and decree of the trial court, the
1st defendant preferred first appeal before the District Court,
c
Osmanabad which was transferred to the Court of Additional
District Judge, Osmanabad for its disposal. The first appellate
~ court reversed the finding of the trial court on issue no.4 and..,
held that the 1st defendant pecame owner of the suit propert{
by adverse possession and, accordingly, allowed the first D
appeal on August 1, 2001 and set aside the judgment and
decree of the trial court.
·~

7. The plaintiff challenged the judgment and decree of the
first appellate court in the second appeal before the High Court. E
In the course of second appeal, 2nd defendant died and her
legal representatives were brought on record. The High Court
allowed the second appeal and, as noticed above, set aside
... the judgment and decree of the first appellate court .

8. Pertinently, the judgment of the High Court that runs into
F
eight foolscap pages does not indicate that scope of second
appeal as provided in Section 100 and Section 101 of the
Code of Civil Procedure, 1908 (for short, 'the Code') was kept
i
in mind while hearing the second appeal. In para 7 of the
-..;'.)
judgment, the High Court observed thus: G

"I have minutely gone through both the judgments of the
Courts below only on the issue of adverse possession
which is also a mixed question of law and fact.".·
H
556 SUPREME COURT REPORTS [2011J 9 S.C.R.

A 9. The High Court then proceeded to record the
arguments of the counsel for the 1st defendant (respondent no.
--
1 therein) in paragraph 8. Thereafter in paragraphs 9, 10 and
11 it was observed and held as follows :

8 "9. The case of ouster is pleaded by Respondent No. 1 in • ~

the written statement stating that after two years of her ..
marriage sometime in the year 1967 both the sisters
asked for their share and it was denied to them.

10. Party when plead adverse possession it must be
c proved by the evidence. The suit property is immovable
property and there is no documentary evidence supporting
the case of the Respondent No. 1 that he is in exclusive
possession of the agricultural land and the same was held
by him in his exclusive possession after death of his father ..
D or from 1967. Only one document i.e. 7/12 extra of the year
1989-90 was filed by Respondent No. 1 showing his
possession and cultivation which is jointly in the name of
Respondent No. 1 and his wife. Crop statements are
prepared every year and 7/12 extract has a presumptive
E value for possession and cultivation of agricultural land~
Since there are no such crop statements of 7/12 extract
filed on record, adverse inference will have to be drawn
against the Respondent No. 1. His exclusive or continuous
possession is not established on record for a period of
~
F over 12 years preceding to the filing of the suit. No case
of ouster is made out. Oral evidence of Vishnu Baburao
Jadhav, witness No. 2, cannot be accepted as evidence
of possession for such long period and has been rightly
rejected qpd ·not considered by the trial court in the light
G
of the evidence of Respondents. So also case of adverse
possession was dismissed by learned trial Court after ' ,,.
going through the evidence of Respondent No. 1.
11. Mere refusal to give share will not give rise to claim
adverse possession and thus it is seen that learned
H appellate Court failed to appreciate the evidence on the
UMERKHAN v. BISMILLABI @ BABULAL SHAIKH & 557
ORS. [R.M. LODHA, J.]
~.·'f~ ... point of demand of share by the plaintiff from the
--.,.- A
Respondent No. 1 and further law on the point of adverse
possession in the light of the authorities referred above.
In that view of the matter, the impugned judgment of the
1st appellate Court does not sustain in law. The appeal
• ~
j
deserves to be allowed. The judgment and decree of the
learned trial Court is hereby upheld and appeal is allowed
B
with costs."

10. Section 100 of the Code reads as follows :

"S.-100. Second appeal.-(1) Save as otherwise expressly c
provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court
. subordinate to the High Court, if the High Court is satisfied
that the case involves a substantial question of law. D
•
(2) An appeal may Iie 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 E
involved in the appeal.

(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
' -t· .. that question. F
(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 :
G
.... ) Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it
is satisfied that the case involves such question." H
558 SUPREME COURT REPORTS [2011] 9 S.C.R.

A 11. Section 101 of the Code provides that no second
' .. '
appeal shall lie except on the ground mentioned in Section 100.

12. Section 103 of the Code empowers High Court to
determine any issue necessary for disposal of the second
4
appeal in the circumstances stated therein. Section 103 reads ~

B as under:- •

"S.103.- Power of High Court to determine issues of fact.
- In any second appeal, the High Court may, if the evidence
on the record is sufficient, determine any issue necessary
c for the disposal of the appeal, -

(a) which has not been determined by the lower Appellate
Court or both by the Court of first instance and the lower
Appellate Court, or •
D (b) which has been wrongly determined by such Court or Jo

Courts by reason of a decision on such question of law
as is referred to in section 100."

13. In our view, the very jurisdiction of the High Court in
E hearing a second appeal is founded on the formulation of a
substantial question of law. The judgment of the High Court is
rendered patently illegal, if a second appeal is heard and
judgment and decree appealed against is reversed without
formulating a substantial question of law. The second appellate ,.t
F jurisdiction of the High Court under Section 100 is not akin to
the appellate jurisdiction under Section 96 of the Code; it is
restricted to such substantial question or questions of law that
may arise from the judgment and decree appealed against. As ..
a matter of law, a second appeal is entertainable by the High
G Court only upon its satisfaction that a substantial question of
law is involved in the matter and its formulation thereof. Section ' ~

100 of the Code provides that the second appeal shall be heard
on the question so formulated. It is, however, open to the High
Court to reframe substantial question of law or frame substantial
question of law afresh or hold that no substantial question of
H
UMERKHAN v. BISMILLABI @ BABULAL SHAIKH & 559
ORS. [R.M. LODHA, J.]
--!...,
, law is involved at the time of hearing the second appeal but A
reversal of the judgment and decree passed in appeal by a
court subordinate to it in exercise of jurisdiction under Section

. '

)
100 of the Code is impermissible without formulating
substantial question of law and a decision on such question .
This Court has been bringing to the notice of the High Courts B
.
~

the constraints of Section 100 of the Code and the mandate
of the law contained in Section 101 that no second appeal shall
lie except on the ground mentioned in Section 100, yet it
appears that the fundamental legal position concerning
jurisdiction of the High Court in second appeal is ignored and c
overlooked time and again. The present appeal is unfortunately
..
I
one of such matters where High Court interfered with the
judgment and decree of the first appellate court in total
disregard of the above legal position .
...
14. In lshwar Dass Jain (Dead) through LRs. v. Sohan Lal D
• (Dead) by LRs. , in paragraph 10 (page 441) of the Report,
this Court stated :
"Now under Section 100 CPC, after the 1976 Amendment,
it is essential for the High Court to formulate a substantial
E
question of law and it is not permissible to reverse the
judgment of the first appellate court without doing so."
15. In Roop Singh (Dead) through L.Rs., v. Ram Singh
" (Dead) through L.Rs. , this Court reminded the High Courts,
....
-l
in para 7 (page 713) of the report, that the second appellate F
jurisdiction of High Court was confined to appeals involving
substantial question of law. This Court said :
"It is to be reiterated that under Section 100 CPC
jurisdiction of the High Court to entertain a second appeal
is confined only to such appeals which involve a substantial G
~
)
question of law and it does not confer any jurisdiction on
the High Court to interfere with pure questions of fact while
. exercising its jurisdiction under Section 100 CPC ........ ".
16. In Chadat Singh v. Bahadur Ram and Ors. , this Court
H
560 SUPREME COURT REPORTS [2011] 9 S.C.R.

A set aside the judgment of the High Court that was passed
without formulating the substantial question of law. In para 8
(page 361) of the Report, the Court said :
"A perusal of the impugned judgment passed by the High
Court does not show that any substantial question of law
B
has been formulated or that the second appeal was heard ~

on the question, if any, so formulated. That being so, the
judgment cannot be maintained."
17. The above three judgments have been relied upon in
c Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors. and
C.A. Sulaiman and Ors. v. State Bank of Travancore, Alwayee
and Ors. and this Court set aside the judgments of the High ,.
Cou1t and the matters were remanded to the High Court for
disposal of second appeal in accordance with law.
D 18. Recently, in the case of Municipal Committee,
Hoshiarpur v. Punjab State Electricity Board and Ors. , the •
above legal position has been restated. This Court stated in
paragraph 16 (page 225) of the Report as under :
"....... The existence of a substantial question of law is a
E
condition precedent for entertaining the second appeal; on
failure to do so, the judgment cannot be maintained. The
existence of a substantial question of law is a sine qua non
for the exercise of jurisdiction under the provisions of
Section 100 CPC ...... " ~
~

F
19. In light of the above, the appeal is allowed and
impugned judgment of the High Court is set aside. The second
appeal No. 528 of 2001, Bismillabi v. Umerkhan and Ors., is
restored to the file of the High Court for fresh consideration in ,_
G accordance with law. No order as to costs.
' •
N.J. Appeal allowed.