Holding

A second appeal under Section 100 CPC must be heard on a substantial question of law that the High Court is required to formulate; a judgment rendered without such formulation is not sustainable.

Summary

The appellant, Smt. Ram Sakhi Devi, challenged a judgment of the Patna High Court that restored a trial court decree in a land title suit on a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court had decided the appeal without formally framing a substantial question of law as mandated by Section 100(3)‑(5). The Supreme Court held that the High Court’s procedure was defective because it neither framed nor heard the appeal on any substantial question of law. Consequently, the High Court’s judgment was set aside and the matter remitted to the High Court for disposal in accordance with the statutory requirements. The appeal was disposed of without any order as to costs.

Issues considered

Whether a second appeal under Section 100 CPC is valid when the High Court decides it without framing a substantial question of law as required by Section 100(3)‑(5).

Legislation cited

Code of Civil Procedure, 1908s. 100(3), s. 100(4), s. 100(5)

Subjects

Section 100 CPCsecond appealsubstantial question of lawframing of questionappellate jurisdictioncivil procedureremand

Judgment

\-

A SMT. RAM SAKHI DEVI
v.
CHHATRA DEVI AND ORS.

JULy 12, 2005

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appeal-Judgment
of High Court without framing substantial question of law-Held, not
C sustainable.

The question which arose for consideration in the present appeal is
whether judgment rendered by the High Court in second appeal without
framing a substantial question oflaw as required by S.100 CPC is sustainable.

·Remitting back the matter to the High Court, the Court
D
HELD: Sub-section (3) of Section 100 CPC requires the memorandum
of appeal to precisely state substantial question or questions of law involved
in the appeal. Where the High Court is satisfied that in any case any
substantial questicm of law is involved it shall formulate that question under
E sub-section (4) and-the second appeal has to be heard on- the question so
formulated as stated in sub-section (5) of Se_ctton 100. The judgment passed
by the High Court does not show that any substantial question of law has been
formulated or. t~at the second appeal was heard on the question, if any, so
formulated. That being so, the judgment cannot be maintained.
[545-H; 546-A, G].
F
Jshwar Dass Jain v. Sohan Lal, [2000) 1 SCC 434; Roop Singh(Dead)
Through LRs. v. Ram Singh (Dead)Through LRs., (2000] 3 SCC 708;
Kanhaiyalal and Ors. v. Anupkumar and Ors., JT (2002) 10 SC 98; R. Lakshmi
· Narayan v. Santhi, [2001) 4 SCC 688; MS V Raja and Anr. v. Seeni Thevar
and Ors., [2001) 6 SCC 652; R. VE. Venkatachala Gounder v. Arulmigu
G Viswesaraswami and VP. Temple and Anr., [2003) 8 SCC 752; Md. Mohammad
Ali (dead) by Lrs. v. Jagadish Kalita and Ors., [2004) 1 SCC 271; C~~dat
Singh v. Bahadur Ram and Ors:, JT [2004) 6 SC 296; Kishori Lal and Anr. v.
Madan Gopal(d) by Lrs. and Ors., JT (2094) 8 SC 422 and Mathakala
Krishnaiah v. V Rajagopal, [2004) 10 SCC 676, relied on.
H 544
RAM SAKHIDEVI v. CHHATRA DEVI [PASA YAT, J.] 545
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3608 of2005. ' A
From the Judgment and Order dated 31.10.2002 of the Patna High Coui:t
in S.A.No. 244 of 1988.

D.K. Thakur and Debasis Misra for the Appellant.
B
Krishna Prasad, Sanjay R. Hegde, S.K. Verma and N.S. Bisht for t~e
Respondents. ·

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Leave granted. c
Appellant calls in question legality of the judgment rendered by j a
learned Single Judge of the Patna High Court in Second Appeal in ten11s
of Section I 00 of the code of Civil Procedure, 1908 in short the 'code'. T~e
respondents are the legal heirs of the original plaintiff - lshraj Narayan Singh.
The original plaintiff filed a suit seeking declaration of his title over the s~it D
'land and declaration of want of title of Smt. Ram Sakhi Devi, the appellant
herein, the defendant No. 3 in the suit. The trial court had decreed the suit
but in appeal the First Appellate Court reversed it. The respondents filed ~he
second appeal before the Patna High Court. By the impugned judgment the
I
High Court restored the judgment and decree of the trial court and set aside E
the judgment and decree of the First Appellate Court.

Though many points were urged in support of the appeal, the piv~tal
plea was that the High Court could not have interfered with the judgment and
I
d~cree of the First Appellate court without framing a substantial question of
law as enjo!!l_t:d by Section 100 of the Code. The High Court can dnly F
exercise its jurisdiction under Section 100 of the code in Second Appeal on 1

1 the basis of substantial question of law framed at the time of admitting appeal
A Second Appeal can be heard and decided only on the basis of substantial
question of law , if any. The judgment rendered by the High Court in Secpnd
appeal without following the aforesaid procedure is not sustainable in law.I

G
Learned counsel for the respondents on the other hand submitted that 1

the question of law is self evident and on a technical plea that a question of
law has not been framed, the well reasoned judgment should not be set aside.
I

As mandated by sub-section 3 of Section 100 of the Code,: the
memorandum of appeal shall precisely state substantial question or questions H
"'

546 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A of law involved in the appeal. Where the High 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
I
so formulated as stated in sub-section 5 of Section 100. '
'
Section 100 of the Code deals with "Section Appeal". The provision
B reads as follows:
"Section 100 - ( 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, ifthe High Court is satisfied that
c 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 appeal shall
D precisely state the substanteal question of law is invol 1ed in the
appeal.

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

E (5) The appeal shall be heard on the question so fonnulated an4 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 to take
away or abridge the power of the Court to hear, for reasons to be
F recorded, the appeal on any other substantial question of law, not
fonnulated 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
G being so, the judgment cannot be maintained.

In lshwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434 this Court in para
10, has stated thus:

"10. Now under Section 100 CPC, after the 1976 Amendment, it is
H essential for the High Court to fonnulate a substantial question of law
RAM SAKHIDEVI v. CHHATRA DEVI [PASA YAT, J.] 547
and it is not permissible to reverse the judgment of the first appellate A .
Court without doing so."

Yet again in Roop Singh (Dead) Through LRS. v. Ram Singh (dead)
'# Through Lrs., [2000] 3 SCC 703, this court has expressed that the jurisdiction
of a High Court.is confined to appeals involving substantial question of law.
Para 7 of the said judgment reads: B
"7. It is to be reiterated that under section l 00 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 of the High Court to interfere with pure questions
of fact while interfere with pure questions of fact while exercising its C
jurisdiction under section l 00 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
findings c.ourts after appreciating the evidence held that the defendant D
entered into the possession of the premises as a batai, that is to say,
a
as. tenant and his possession was permissive and there was no
pleading or proof as to when it became adverse and hostile. There
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, It the defendant E
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 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 F
adverse possession Thakur Kishan Singh v. Arvind Kumar, [1994] 6
SCC 591. Hence the High Court ought not to have interfered with
the findings of fact recorded by both the courts be low."

The position has been reiterated in Kanhalyalaland Ors. v. Anupkumar
and Ors., JT (2002) l 0 SC 98. G
Reference may also be made to R. Lakshmi Narayan v. Santhi, [2001]
4 SCC 688, MS. V. Raja and Anr. v. Seeni Thevar and Ors., [2001] 6 SCC 652,
R. V.E. ~enkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple
and Anr., [2003] 8 SCC 752, Md. Mohammad Ali (dead) by Lrs. v. Jagadish
Kalita and Ors., (2004) 1 SCC 271, Chadat Singh v. Bahadur Ram and Ors., H

-1I
548 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A JT (2004) 6 SC 296, Kishori Lal and Anr. v. Madan Gopal (d) by Lrs. and
On, JT (2004) 8 SC 422 and Mathakala Krishnaiah v. V Rajagopal, [2004]
10 SCC676.

In the circumstances, the impugned judgment is set aside. We remit the
matter to the High Court for disposal in accordance with law. The appeal is
B disposed of in the aforesaid tenns with no order as to costs.

D.G. Appeal disposed of.