Narayana Gramani And Ors. vs Mariammal And Ors.

Narayana Gramani & Ors. ….Appellant(s)

VERSUS

Mariammal & Ors. …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the plaintiffs against the

final judgment and order dated 09.07.2007 passed by

the High Court of Judicature at Madras in Second

Appeal No.652 of 1995 whereby the Single Judge of

the High Court allowed the second appeal filed by

Signature Not Verified defendant Nos.2 to 5 and set aside the judgment and Digitally signed by ANITA MALHOTRA Date: 2018.09.11

decree dated 05.08.1994 passed by the Additional 17:44:37 IST Reason: 1 Subordinate Judge, Chingalpattu in A.S. No.72 of

1993 and dismissed the suit filed by the appellants

herein.

2. In order to appreciate the issues involved in the

appeal, which lie in a narrow compass, few facts need

mention hereinbelow.

3. Appellant Nos. 1 and 2 are the plaintiffs whereas

appellant No. 3 is the legal representative of third

plaintiff­Thirunavukkarasu, who died pending

litigation. The respondents are defendants in the civil

suit.

4. The three plaintiffs claiming to be the members of

one family filed a civil suit against the defendants for a

declaration and permanent injunction in relation to

the land situated at No. 294/1 Vembanur Village,

Kadapakkam Firka, (patta No. 491), Old Paimash No.

201/8 renumbered as S. No 399/4, Acs. 1.08

(hereinafter referred to as "suit land").

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5. The plaintiffs traced the title to the suit land

through their predecessor­in­title coupled with Patta

issued by the Estate Manager in relation to the suit

land. According to the plaintiffs, there had been a

family partition inter se the plaintiffs wherein the suit

land fell to their share. The plaintiffs alleged that they

have been in possession of the suit land, invested

money and paying revenue taxes. The plaintiffs alleged

that the defendants are trying to disturb their

possession over the suit land without any legal

authority and are also asserting their title over the suit

land, which they do not have in their favour and hence

there arise a need to file the civil suit and claim

declaration and permanent injunction in relation to

the suit land.

6. The defendants filed their written statement and

denied the plaintiffs’ claim over the suit land.

According to them, they are the owners of the suit

land having purchased the same vide sale deed dated

3 15.02.1967 for Rs.200/­ from one Muthu Mudaliar

and his son Rajaram Mudaliar who, according to the

defendants, were the owners of the suit land.

Defendant No. 1 also claimed to be in possession of

the suit land and cultivating the same.

7. The Trial Court framed two issues, viz., (1)

Whether the plaintiffs are entitled for seeking

declaration and permanent injunction; and (2) If so, for

what reliefs. Parties adduced their evidence (oral and

documentary). By Judgment and decree dated

23.11.1993, the Trial Court decreed the plaintiffs’ suit.

It was held that the plaintiffs are able to prove their

ownership over the suit land on the basis of the

documents filed by them; that the plaintiffs are in

possession of the suit land; that they are, therefore,

entitled to claim a declaration of their title over the

suit land as its owners so also are entitled to claim

permanent injunction against the defendants

4 restraining them from interfering in their (plaintiffs’)

peaceful possession over the suit land.

8. The defendants felt aggrieved and filed first

appeal before the Additional Sub­Judge (Appeal Suit

No. 72/1993). By Judgment dated 05.08.1994, the

Appellate Court dismissed the defendants’ appeal and

affirmed the judgment and decree passed by the Trial

Court.

9. The defendants pursued the matter further and

filed second appeal in the High Court at Madras. The

High Court admitted the second appeal on the

following substantial question of law:

“Whether the same judge can dismiss an appeal on the ground that he has already rejected the appellants’ case in an earlier appeal against different parties in the absence of pleadings of rejudicata or estoppel by judgment by neither of the parties, especially when the issue is pending for decision before the High Court by way of second appeal.”

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10. By impugned judgment, the High Court allowed

the appeal and set aside the judgment and decree of

the two courts below and, in consequence, dismissed

the suit giving rise to filing of the present appeal by

way of special leave in this Court by the plaintiffs.

11. The short question, which arises for

consideration in this appeal, is whether the High Court

was justified in allowing the defendants’ appeal and, in

consequence, dismissing the plaintiffs’ suit which was

decreed by the two Courts below.

12. Mr. MSM Asaithambi, learned counsel appeared

for the appellants. Despite notice, none appeared for

the respondents.

13. Having heard the learned counsel for the

appellants and on perusal of the record of the case, we

are inclined to allow the appeal and while setting aside

the impugned judgment remand the case to the High

Court for deciding the appeal afresh on merits in

6 accordance with law after framing appropriate

substantial question of law as indicated below.

14. Before we examine the facts of the case, it is

necessary to see the scope of Section 100 of the Code

of Civil Procedure, 1908 (hereinafter referred to as “the

Code”), which empowers the High Court to decide the

second appeals. Indeed, it is explained in several

decisions of this Court and thus remains no more res

integra.

15. Section 100 of the Code reads as under:

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“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 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 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 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 sub­section 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 formulated by it, if it is satisfied that the case involves such question.”

16. Sub­section (1) of Section 100 says that the

second appeal would be entertained by the High Court

only if the High Court is "satisfied" that the case

8 involves a "substantial question of law". Sub­ section

(3) makes it obligatory upon the appellant to precisely

state in memo of appeal the "substantial question of

law" involved in the appeal. Sub­section (4) provides

that where the High Court is satisfied that any

substantial question of law is involved in the case, it

shall formulate that question. In other words, once the

High Court is satisfied after hearing the appellant or

his counsel, as the case may be, that the appeal

involves a substantial question of law, it has to

formulate that question and then direct issuance of

notice to the respondent of the memo of appeal along

with the question of law framed by the High Court.

Sub­section (5) provides that the appeal shall be heard

only on the question formulated by the High Court

under sub­section (4). In other words, the jurisdiction

of the High Court to decide the second appeal is

confined only to the question framed by the High

Court under sub­section(4). The respondent, however,

9 at the time of hearing of the appeal is given a right

under sub­section (5) to raise an objection that the

question framed by the High Court under sub­section

(4) does not involve in the appeal. The reason for giving

this right to the respondent for raising such objection

at the time of hearing is because the High Court

frames the question at the admission stage which is

prior to issuance of the notice of appeal to the

respondent. In other words, the question is framed

behind the back of respondent and, therefore, sub­

section(5) enables him to raise such objection at the

time of hearing that the question framed does not arise

in the appeal. The proviso to sub­section (5), however,

also recognizes the power of the High Court to hear the

appeal on any other substantial question of law which

was not initially framed by the High Court under sub­

section (4). However, this power can be exercised by

the High Court only after assigning the reasons for

framing such additional question of law at the time of

10 hearing of the appeal. (See Sanatosh Hazari vs.

Purushottam Tiwari [(2001) 3 SCC 179] and Surat

Singh vs. Siri Bhagwan & Ors. [(2018) 4 SCC 562]

17. Keeping in view the scope and ambit of the

powers of the High Court while deciding the second

appeal when we advert to the facts of the case, we find

that the High Court committed an error in allowing the

defendants’ second appeal and further erred in

dismissing the plaintiffs’ suit by answering the

substantial question of law. This we say for more than

one reason.

18. First, mere perusal of the impugned order would

go to show that the High Court had admitted the

second appeal by framing only one substantial

question of law, namely, whether the first Appellate

Court was justified in dismissing the defendants’ first

appeal by taking into consideration one earlier

11 litigation in relation to the suit land, which was not

between the same parties.

19. The High Court held that the first Appellate Court

was not justified because the earlier litigation was not

between the present plaintiffs and the defendants but

it was between the different parties and, therefore, any

decision rendered in such litigation would not operate

as res judicata in the present litigation between the

parties. This resulted in allowing of the appeal and

dismissing the suit.

20. The High Court (Single Judge), in our opinion,

failed to see that even if the said question was

answered in defendants’ favour, yet the plaintiffs’ suit

could not have been dismissed much less in its

entirety unless the High Court had further examined

the main issue of ownership of the plaintiffs over the

suit land, which was decided by the two Courts below

in plaintiffs’ favour on merits.

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21. In other words, we are of the view that it was

necessary for the High Court to have proceeded to

examine the issue relating to the plaintiffs’ title over

the suit land, which was decided by the two Courts in

plaintiffs’ favour holding that the plaintiffs were able to

prove their title over the suit land on the basis of

documentary evidence whereas the defendants failed

to prove their title though asserted.

22. Second, the High Court committed another error

when it failed to frame any substantial question of law

on the issue of the plaintiffs’ ownership over the suit

land.

23. So long as no substantial question of law was

framed, the High Court had no jurisdiction to examine

the said issue in its second appellate jurisdiction. In

other words, the High Court having framed only one

question, which did not pertain to issue of ownership

of the suit land, had no jurisdiction to examine the

issue of ownership. It was not permissible in the light

13 of Section 100 (5) of the Code, which empowers the

High Court to decide the appeal only on the question

framed and not beyond it.

24. Third, the High Court could invoke its powers

under proviso to sub­section (5) of Section 100 and

frame one or two additional questions, as the case may

be, even at the time of hearing of the second appeal. It

would have enabled the High Court to examine the

issue of ownership of the suit land in its correct

perspective. It was, however, not done by the High

Court.

25. Fourth, the High Court, while examining the

question framed, also cursorily touched the ownership

issue which, in our opinion, the High Court could not

have done for want of framing of any substantial

question of law on the ownership issue. That apart,

the High Court also failed to see that the issue of res

judicata and the issue of ownership were independent

issues and the decision on one would not have

14 answered the other one. In other words, both the

issues had to be examined independent of each other

on their respective merits. It was, however, possible

only after framing of substantial questions on both the

issues as provided under Section 100(4) and (5) of the

Code. This was, however, not done in this case.

26. In the light of aforementioned four reasons, we

are of the considered opinion that the impugned

judgment is not legally sustainable and, therefore, it

has to be set aside.

27. Since the High Court failed to examine the issue

of ownership of the plaintiffs on its merits for want of

framing of the substantial question(s) of law, the

matter has to be remanded to the High Court for

deciding the question as to whether two Courts below

were right in their respective jurisdiction in holding

that the plaintiffs were able to prove their title over the

suit land on the basis of evidence (oral/documentary)

15 adduced by them and, if so, whether such finding

should be upheld or not.

28. In view of the foregoing discussion, the appeal

succeeds and is allowed. Impugned order is set aside.

The case is remanded to the High Court for deciding

the second appeal afresh on merits in accordance with

law by properly framing the substantial question(s) of

law on the question of ownership of the plaintiffs over

the suit land and then to examine as to whether the

findings on the said question recorded by two Courts

suffer from any error(s) or not.

29. We, however, make it clear that we have not

applied our mind on the merits of the controversy

having formed an opinion to remand the case to the

High Court for deciding the appeal afresh as observed

above and, therefore, the High Court will decide the

appeal strictly in accordance with law uninfluenced by

any of our observations.

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30. Since the matter is quite old, we request the High

Court to decide the appeal as expeditiously as possible

preferably within 6 months from the date of this

judgment.

………...................................J. [ABHAY MANOHAR SAPRE] ...……..................................J. [VINEET SARAN]

New Delhi;

September 11, 2018

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