Umerkhan vs Bismillabi @ Babulal Shaikh & Ors

Umerkhan .... Appellant

Versus

Bismillabi @ Babulal Shaikh & Ors. ....Respondents

JUDGMENT

R.M. Lodha, J.

Leave granted.

2. This appeal, by special leave, has been preferred by the

original 1st defendant against the judgment of the High Court of

Judicature of Bombay, Aurangabad Bench whereby the learned

Single Judge of that Court reversed the judgment and decree passed

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in the appeal by the Additional District Judge, Osmanabad and

restored the judgment and decree of the trial court.

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. 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

suit 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 defendant') and her sister Aminabi (hereinafter

referred to as, `2nd defendant'). The plaintiff's 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.

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 as he has been holding hostile

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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. 4

being whether 1st defendant has proved that he has become 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 decree dated October 18, 1993

declared that plaintiff and 2nd defendant were entitled to 1/4th share

each and the 1st 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, 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

became owner of the suit property by adverse possession and,

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accordingly, allowed the first 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. 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

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 in mind while

hearing the second appeal. In para 7 of the judgment, the High

Court observed thus:

"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."

9. The High Court then proceeded to record the arguments

of the counsel for the 1st defendant (respondent no. 1 therein) in

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paragraph 8. Thereafter in paragraphs 9, 10 and 11 it was observed

and held as follows :

"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

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

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

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 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 and not considered by the trial court in the light 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

appellate Court failed to appreciate the evidence on the

point of demand of share by the plaintiff from the

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

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appellate Court does not sustain in law. The appeal

deserves to be allowed. The judgment and decree of the

learned trial Court is hereby upheld and appeal is allowed

with costs."

10. Section 100 of the Code reads as follows :

"S.-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 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."

11. Section 101 of the Code provides that no second appeal

shall lie except on the ground mentioned in Section 100.

6 12. Section 103 of the Code empowers High Court to

determine any issue necessary for disposal of the second appeal in

the circumstances stated therein. Section 103 reads 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 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

(b) which has been wrongly determined by such Court or

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

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 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

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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 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 law is involved at the time of hearing the

second appeal but 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 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 overlooked time and again. The

present appeal is unfortunately one of such matters where High Court

interfered with the judgment and decree of the first appellate court in

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total disregard of the above legal position.

14. In Ishwar Dass Jain (Dead) through LRs. v. Sohan Lal

(Dead) by LRs.1, 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

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.2, this Court reminded the High Courts, in para

7 (page 713) of the report, that the second appellate 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

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........".

1 (2000) 1 SCC 434

2 (2000) 3 SCC 708

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16. In Chadat Singh v. Bahadur Ram and Ors.3, this Court 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

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

Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors.4 and C.A.

Sulaiman and Ors. v. State Bank of Travancore, Alwayee and Ors.5

and this Court set aside the judgments of the High Court and the

matters were remanded to the High Court for disposal of second

appeal in accordance with law.

18. Recently, in the case of Municipal Committee, Hoshiarpur

v. Punjab State Electricity Board and Ors.6, the above legal

position has been restated. This Court stated in paragraph 16

(page 225) of the Report as under :

3 (2004) 6 SCC 359

4 (2005) 12 SCC 588

5 (2006) 6 SCC 392

6 (2010) 13 SCC 216

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".......The existence of a substantial question of law is a

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......"

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 accordance with law. No order

as to costs.

.........................J.

(Aftab Alam)

........................ J.

(R.M. Lodha)

NEW DELHI.

JULY 28, 2011.

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