Holding

A second appeal under Section 100 CPC is invalid unless the High Court formulates a substantial question of law; the High Court’s judgment was set aside for failing to do so.

Summary

The appellant, a Saunjidar, obtained a decree for possession of land from the trial court and the first appellate court. The High Court, on a second appeal under Section 100 of the CPC, set aside those decrees, holding that only the Collector under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 could determine Saunjidar rights and that civil courts lacked jurisdiction. The appellant contended that the High Court disposed of the appeal without formulating any substantial question of law, as required by Section 100, while the respondents relied on the proviso to sub‑section (5) to justify the decision. The Supreme Court held that the High Court had indeed failed to formulate a substantial question of law and therefore could not sustain its judgment; the proviso applies only when a question has already been formulated. Consequently, the impugned judgment was set aside and the matter remitted to the High Court for proper disposal. The appeal was disposed of with no order as to costs.

Issues considered

The High Court must formulate a substantial question of law before hearing a second appeal under Section 100 CPC.
Whether the proviso to sub‑section (5) of Section 100 CPC permits the High Court to decide a second appeal without first formulating a substantial question of law.

Legislation cited

Subjects

Second appealSubstantial question of lawSection 100 CPCCivil court jurisdictionSaunjidar rightsPunjab Village Common Lands ActCollector jurisdictionProcedural law

Judgment

GIAN DASS A
v.
THE GRAM PANCHAYAT, VILLAGE SUNNER KALAN AND ORS.

JULY 21, 2006

[ARIJITPASA YAT AND LOKESHWARSINGH PANTA, JJ.] B

Code of Civil Procedure, 1908-Section JOO-Second appeal-
Jurisdiction of High Court-ls confined to appeals involving substantial
questions of law-Impugned judgment passed by High Court does not show C
that any substantial question of law has been formulated or that the second
appeal was heard on the question, if any, so formulated-Such judgment
cannot be maintained-Land Laws-Punjab Village Common Lands
(Regulation) Act, 1961-Section I I.

A suit for possession in respect of the land in dispute was decreed by D
...,I both the Trial Court and the First Appellate Court on the ground that the
plaintiff (appellant) is Saunjidar of the land and he had been dispossessed
forcibly and illegally. High Court in second appeal, however, held that only
the Collector under Section 11 of the Punjab Village Common Lands
(Regulation) Act, 1961 can adjudicate on the issue of Saunjidar rights and
the Civil Court has no jurisdiction upon the matter. Accordingly the appeal E
was allowed and the judgment and decree passed by the Courts below set aside.

In appeal before this Court it was urged by the Appellant that the High
Court erred in disposing of the second appeal without formulating the
substantial question or questions of law, as mandated by Section 100 CPC. F
Respondent pleaded that though no substantial question oflaw was formulated
before the second appeal was adjudicated, yet that is permissible, because
proviso to sub Section (5) of Section 100 permits the High Court to decide a
second appeal on a different substantial question of law subject to recording
of reasons.
G
. ,· Remitting back the matter to High Court, the Court

HELD: 1. 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. That
781 II

,4
782 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.
1 '
A being so, the judgment cannot be maintained. (784-C-D]
lshwar Dass Jain v. Sohan Lal, (2000] I SCC 434; Roop Singh v. Ram
Singh, [2000] 3 SCC 708; Kanhaiyalal v. Anupkumar, [2003] I SCC 430;
Chadat Singh v. Bahadur Ram and Ors., (2004] 6 SCC 359; Joseph Severane
and Ors. v. Benny Mathew and Ors., [2005) 7 SCC 667 and Sasikumar and
B Ors. v. Kunnath Chellapan Nair and Ors., [2005] 12 SCC 588, relied on.

2. The plea about proviso to sub-section (5) of Section 100 instead of
supporting the stand of the respondent rather goes against them. The proviso
is applicable only when any substantial question of law has already been ~ •
C formulated and it empowers the High Court to hear, for reasons to be recorded,
the appeal on any other substantial question of law. The expression "on any
other substantial question of law" clearly shows that there must be some
substantial question of law already formulated and then only another
substantial question oflaw which was not formulated earlier can be taken up
by the High Court for reasons to be recorded, if it is of the view that the case
D involves such question. [785-G-H; 786-A[
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3086 of2006.

From the Judgment and Order dated 15.9.2004 of the High Court of
Punjab and Haryana at Chandigarh, in R.S.A. No. 895/1984.
E
S.K. Bagga, Seeraj Bagga and Sureshta Bagga for the Appellant.

lshwar Singh, Vimal, Dinesh Verma and A.P. Mohanty for the
Respondents.

F The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Leave granted.
..
The appeal relates to a judgment delivered by a learned Single Judge
of the Punjab and Haryana High Court in Regular Second Appeal No. 895 of
G 1984. The Second Appeal was filed by the defendants, in a suit for possession.
The suit had been decreed by both the trial court and the first appellate court
on the ground that the plaintiff (appellant) herein is the Saunjidar of the land
in dispute and he had been dispossessed forcibly ·and illegally. The High
Court held that when a person is claiming a title, right or interest in the
property in dispute either being a owner or a saunjidar or tenant, then the
H jurisdiction of the civil court is barred. Saunjidar right is an interest claimed
GIAN DASS v. THEGRAMPANCHA YAT, VILLAGESUNNERKALAN [PASA YAT,J.] 783

by the plaintiff-the appellant herein. Therefore, the civil court cannot adjudicate A
upon the matter. It is only the Collector under Section 11 of the Punjab Village
Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 'Act')
who can decide whether the plaintiff had any saunjidar rights in the property
in dispute. Accordingly the appeal was allowed, judgment and decree passed
by the courts below were set aside and the suit of the plaintiff-appellant
herein were dismissed.
B

Though several points were urged in support of the appeal, the basic
issue which was urged was that the Second Appeal in terms of Section I00
' of the Code of Civil Procedure, I 908 (in short the 'Code') has been disposed
of without formulating substantial question of law by the High Court. It is,
therefore, not necessary to deal with the factual aspects in detail.
c
Learned counsel for the appellant submitted that the High Court was
not justified in disposing of the second appeal without formulating the
substantial question or questions of law, as mandated by Section I00 of the
Code. D
Learned counsel for the respondents submitted that though the High
•.
Court has not formulated the questions of law as required, yet on analyzing
the evidence, it concluded that the views expressed by the courts below were
not tenable in law, and the civil court had no jurisdiction to deal with the suit.
E
It is further submitted that though no substantial question of law was
formulated before the Second Appeal was adjudicated, yet that is permissible,
because proviso to sub Section (5) of Section 100 permits the High Court to
decide a second appeal on a different substantial question of law subject to
recording of reasons.
,. F
Section I00 of the Code deals with "second appeal". The provision
reads as follows:

"I 00 (I) Save as otherwise expressly provided in the body of this
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 G
subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree
passed ex-parte.
H
784 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.
(

A (3) In an appeal under this section, the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the
B respondent shall, at th~ hearing of the appeal, be allowed to argue
that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take
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
c formulated by it, if it is satisfied that the case involves such question."

A perusal of the impugned judgment passed by the High Court does
not show that any substantial question of law has been formulated or that
the second appeal was heard on the question, if any, so formulated. That
D being so, the judgment cannot be maintained.
In Ishwar Dass Jain v. Sohan Lal, [2000) 1 SCC 434 this Court in para
10 has stated thus:

"l 0. Now under Section 100 CPC, after the 1976 amendment, it is
essential for the High Court to formulate a substantial question of law
E
and it is not permissible to reverse the judgment of the first appellate
court without doing so."

Yet again in Roop Singh v. Ram Singh, [2000) 3 SCC 708 this Court has
expressed that the jurisdiction of a High Court is confined to appeals involving
p substantial question of law. Para 7 of the said judgment reads:
"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 involve a substantial question of law and it does not
confer any jurisdiction on the High Court to interfere with pure
G questions of fact while 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 judgrnent. Further, the fact finding courts after appreciating
the evidence held that the defendant entered into the possession of
H
GIANDASSv. THEGRAMPANCHAYAT, VILLAGESUNNERKALAN[PASAYAT,J.] 785

the premises as a batai, that is to say, as a tenant and his possession A
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 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 pennissive possession B
it is for him to establish by cogent and convincing evidence to show
hostile animus Page 1532 and possession adverse to the knowledge
of the real owner. Mere possession for a long time does not result in
converting permissive possession into adverse possession (Thakur
Kishan Singh v. Arvind Kumar) [1994] 6 SCC 591. Hence the High C
Court ought not to have interfered with the findings of fact recorded
by both the courts below.

The position has been reiterated in Kanhaiyalal v. Anupkumar, [2003]
1 SCC430.
D
In Chadat Singh v. Bahadur Ram and Ors., [2004] 6 SCC 359, it was
observed thus:

"6. In view of Section 100 of the Code the memorandum of appeal shall
precisely state substantial question or questions involved in the appeal
as required under Sub-section (3) of SectionlOO. Where the High E
Court is satisfied that in any case any substantial question of law is
involved, it shall fonnulate that question under Sub-section (4) and
the second appeal has to be heard on the question so fonnulated as
stated in Sub-section (5) of Section I 00."

The position was highlighted by this Court in Joseph Severane and Ors. v. F
Benny Mathew and Ors., [2005] 7 SCC 667 and Sasikumar and Ors. v. Kunnath
Chellappan Nair and Ors., [2005] 12 SCC 588.

The plea about proviso to sub-section (5) of Section IOO instead of
supporting the stand of the respondent rather goes against them. The proviso
is applicable only when any substantial question of law has already been G
fonnulated and it empowers the High Court to hear, for reasons to be recorded,
the appeal on any other substantial question of law. The expression "on any
other substantial question of law" clearly shows that there must be some
substantial question of law already formulated and then only another
substantial question of law which was not formulated earlier can be taken up H
786 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A by the High Court for reasons to be recorded, if it is of the view that the case {

involves such question.

Under the circumstances the impugned judgment is set aside, we remit
the matter to the High Court so far as it relates to Second Appeal No. 895
of 1984 for disposal in accordance with law. The appeal is disposed of on the
B aforesaid terms with no order as to costs.
B.B.B. Appeal disposed of.