REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.    6034   OF 2011 (Arising out of SLP (Civil) No. 18923 of 2010)

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.  

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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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