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REPORTABLE

        IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL Nos. 2875-2879 OF 2010         

Syeda Rahimunnisa            …….Appellant(s)

VERSUS

Malan Bi (Dead) by L.Rs. & Anr. Etc.  …Respondent(s)

          J U D G M E N T

Abhay Manohar Sapre, J.

1. These appeals by special leave are filed by the

appellant-defendant against the common judgment

dated 21.08.2008 of the High Court of Judicature,

Andhra Pradesh at Hyderabad in  S.A. Nos. 1151 of

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1998, 76, 167, 168 and 169 of 1999 whereby the

learned Single Judge of the High Court allowed the

appeals  filed  by  the  respondents-plaintiffs,  in

consequence,  set  aside  the  decree  and  common

judgment  dated  15.10.1998  of  the  Court  of

Additional  District Judge, Kurnool  in A.S.  Nos.56,

57,  58  59  and  60  of  1997  dismissing  the  first

appeals filed by the respondents herein.

2. Facts of the case need mention, in brief, infra

to  appreciate  the  controversy  involved  in  the

appeals.

3. These appeals involve a short point. However,

in order to appreciate the point, it is necessary to

mention the relevant facts infra.

4. The two appellants – Smt. Syeda Rahimunnisa

and  Syed  Hyder  Hussaini  are  wife  and  husband

whereas the respondent no. 1(a) to 1(f) are the legal

heirs of one late Haji Mian being mother, wife, sons

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and daughters respectively.

5. The dispute  between the  two aforementioned

families relates to the ownership and possession of

portion  of  land  (which  is  a  part  of  entire  area

classified  as  Government  Burial  Poramboke)

situated  in  Kurnool  (AP)  bearing  S.No.35/5

renumbered as 35/5-C1/A-1 (hereinafter called “the

suit-land”).

6. The  appellants  filed  two  civil  suits  being

O.S.No. 77 of 1994 and O.S.No 65 of 1995 against

Haji Mian and others.  The present respondent nos.

1(a) to 1(f) who were later added as party defendants

are legal representatives of Haji Mian.

7. So far as O.S. No 77 of 94 is concerned, the

appellants (plaintiffs) claimed therein eviction of the

respondents from the suit-land.   It was alleged that

appellant no. 1 being the owner of the suit-land had

inducted respondent  no.1  (defendant  no.1)  as her

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tenant on a monthly rent of Rs.150/- for a period of

three  years  on  the  strength  of  lease  deed  dated

01.06.1982.  It  was  alleged  that  contrary  to  lease

conditions  and  without  appellants’  consent,  the

respondent  no.1  erected  four  huts  and  sublet  to

defendant nos.2 to 6 on monthly rent. It was also

alleged that respondents denied appellants’ title.

8. So far as O.S. no. 65 of 1995 is concerned, the

appellants (plaintiffs) claimed therein money decree

of  Rs.5400/-  towards  damages  for  use  and

occupation  of  the  suit-land  for  the  period

(01.07.1989  to  31.07.1992)  i.e.  36  months  and

further  at  the  rate  of  Rs.1507/-  per  month  for

preceding three years ending on 30.06.1992 against

the respondents.  

9. So far as the respondents are concerned, they

filed  three  civil  suits  being  O.S.  No.  53  of  1993,

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O.S.No. 69 of 1994 and O.S.No. 71 of 1994 against

the appellants in the Court of Principal Subordinate

Judge, Kurnool.

10. So far as O.S.No.53 of 1993 is concerned, the

respondents (plaintiffs) filed a suit against appellant

No.1  and  State  of  A.P.  for  a  declaration  that

respondents  are  the  owners  of  the  suit-land  and

also they are entitled to claim permanent injunction

against  the  appellants  from  interfering  in  their

possession over the suit-land. The respondents in

substance  claimed  title  over  the  suit-land  by

adverse possession against the Government alleging

that  their  predecessor  were  in  possession  of  the

suit-land for the last 100 years and on their death,

respondents  continued  to  remain  in  possession

throughout and has, therefore, perfected their title

by being in adverse possession to the exclusion of

all, including the Government as owners.

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11. So far as second suit being O.S.No. 69 of 1994

is concerned, it was filed by the respondents against

the appellant no.1 and APEB to challenge the notice

dated 07.06.1990 issued by APEB for disconnecting

the electric supply to the respondents’ structure. A

relief  of  permanent  injunction  restraining  the

defendants (APEB) from giving effect  to the notice

was also prayed.

12. So  far  as  the third  suit  being O.S.No.  71 of

1994 is concerned, the respondents filed this suit

against  the  Municipality  and  the  appellant  no.  1

challenging  therein  the  assessment  made  by  the

Municipality  by  which  appellants  names  were

entered in the register of Municipality in relation to

the  suit-land/structure.  According  to  the

respondents,  they having perfected their  title  over

the  suit-land  by  adverse  possession,  their  names

should have been entered in place of the appellants

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names in the records of the Municipality.

13. Since all the aforementioned five suits were in

relation to one suit-land and were between the same

parties pending in different courts, all the five civil

suits  were  clubbed  together  for  disposal  in

accordance  with  law.  Parties  adduced  common

evidence in all the five civil suits.

14. By  a  common  judgment  and  decree  dated

22.04.1997, the learned trial judge dismissed three

civil  suits being O.S.Nos.  53 of  1993, 69 of  1994

and 71 of 1994 filed by the respondents, whereas

decreed  the  appellants’  two  civil  suits  being

O.S.Nos. 77 of 1994 and 65 of 1995.  It was held

that  respondents  in  their  suits  failed  to  establish

their title over the suit-land. It was held that since

they failed to establish their title over the suit-land,

a  fortiori, they are not entitled to claim permanent

injunction against the appellants over the suit-land.

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So far as appellants’ two civil suits are concerned, it

was held that appellants were able to establish the

relationship  of  landlord  and  tenant  between

appellant No.1 and the respondent and hence they

are entitled to claim the eviction of the respondents

from the suit-land. It was also held that appellants

are  also  entitled  to  claim  the  money  by  way  of

damages  from  the  respondents  for  the  period  in

question for the use and occupation of the suit-land

as claimed in the suit.  

15. The  respondents  felt  aggrieved,  filed  five

appeals being S.A. No 56 of 1997, 57 of 1997, 58 of

1997,  59  of  1997  and  60  of  1997  before  the  II

Additional District Judge, Kurnool.  By five separate

judgments  dated  15.10.1998,  the  first  appellate

court dismissed all the five appeals and affirmed the

judgment and decree of the trial judge.

16. Felt  aggrieved,  the  respondents  filed  five

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Second  appeals  before  the  High  Court.  The  High

Court admitted the appeals and by impugned order

allowed the appeals and while setting aside the two

courts judgment/decree remanded the cases to the

trial court for fresh trial on merits by permitting the

parties to amend the pleadings, to frame additional

issues and to adduce the evidence.  The concluding

para of the High Court reads as under:-

“……in  the  light  of  the  respective stands taken by the parties,  without expressing  any  further  opinion relating  to  the  other  aspects,  this Court  is  inclined  to  set  aside  the Decrees and common judgment made by the Court of first instance and also the Decrees  and judgments  made  by the appellate  Court and remand these matters to the Court of first instance to record the evidence of P.W.4 in toto and also to permit the parties to let in further  evidence  relating  to  the identity of the property especially in the light  of  the  admissions  made by D.W.1  and  record  further  findings  if necessary  permitting   the  parties  to amend their respective pleadings and also setting additional  issues  as  well and further permitting the parties to it  in  further  evidence  on  such additional  pleadings  and  additional issues  as  well  which  may  arise  for

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consideration in the peculiar facts and circumstances of the case.”

17. Felt aggrieved, the appellants who are plaintiffs

in their two civil suits and defendants in three civil

suits  filed  by  the  respondents  herein  have  filed

these appeals by special leave.

18.  Learned  counsel  for  the  appellants  while

assailing  the  legality  and  correctness  of  the

impugned judgment urged four submissions.

19. Firstly, the learned counsel contended that the

High Court erred in admitting the second appeals

on questions, which according to him did not arise

out  of  the  case  and  in  any  case,  the  questions

framed were  not  the  substantial  questions  of  law

within the meaning of Section 100 of Code of Civil

Procedure. Secondly, his contention was that High

Court erred in setting aside the concurrent findings

of facts recorded by the two courts below. It was his

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submission that these findings were binding on the

High  Court  while  hearing  the  second  appeal.

Thirdly, his contention was that there was no case

made out by the respondents (who were appellants

before the High Court in second appeals) before the

High  Court  for  remanding  the  cases  to  the  trial

court for  de novo trial  in the suits.   It was urged

that firstly it  was nobody's case much less of  the

appellants before the High Court that the trial in the

suits  was  unsatisfactory  or/and  that  the  parties

were not afforded full opportunity to present their

case; secondly, this objection was neither raised by

the appellants before the first appellate court and

nor before the High Court;  thirdly, no question of

law was framed by the High Court on the issue of

remanding  the  cases  to  the  trial  court.  In  these

circumstances, the remand order is wholly without

jurisdiction and fourthly, learned counsel contended

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that both trial court and the first appellate court on

proper appreciation of evidence having rightly held

that  the  respondents  failed to  establish their  title

over  the  suit-land  on  their  plea  of  adverse

possession,  whereas  the  appellants  were  able  to

establish  the  existence  of  relationship  of  landlord

and  tenant  between  the  appellants  and  the

respondents, therefore, these findings were binding

on the High Court.  

20. Per  contra,  learned  counsel  for  the

respondents  supported  the  reasoning  and  the

conclusion arrived at by the High Court and urged

for its upholding.

21. Having  heard  the  learned  counsel  for  the

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

are inclined to accept the submissions urged by the

learned counsel for the appellants, as in our view, it

has force.

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22. The questions which arise for consideration in

these appeals are (i) whether the second appeal filed

by  the  respondents  involved  any  substantial

question of law within the meaning of Section 100 of

the Code of  Civil  Procedure Code, 1908 (for  short

“CPC”) : (ii) whether the High Court was justified in

admitting  the  respondents’  second  appeal  on  the

questions framed and if  so whether the questions

framed can be regarded as substantial questions of

law arising out of the case; (iii)  whether the High

Court  was  justified  in  remanding  the  case  to  the

trial court for de novo trial in all the five civil suits

and (iv) whether the respondents were able to prove

their  title  over  the  suit-land  so  also  whether  the

appellants  were  able  to  prove  the  existence  of

relationship  of  landlord  and  tenant  between  the

appellants and the respondents.  

23. The scope of Section 100 of CPC while deciding

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the second appeal by the High Court has been the

subject matter of several decisions of this Court and

thus remains no more res integra. A reference to the

two cases on this question would suffice.  

24.  A three-judge Bench of this Court   in the case

of  Santosh  Hazari vs.  Purushottam  Tiwari

(Deceased) by LRs. reported in (2001) 3 SCC 179

speaking  through  R.C.  Lahoti  J  (as  His  Lordship

then was) examined the scope of Section 100 of CPC

in detail and laid down the following propositions in

paragraphs 9, 10, 12 and  14 as under:

 “9. The  High  Court  cannot  proceed to  hear  a second  appeal  without  formulating  the substantial  question  of  law  involved  in  the appeal and if it does so it acts illegally and in abnegation  or  abdication  of  the  duty  cast  on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the  Code.  (See  Kshitish  Chandra  Purkait v. Santosh  Kumar  Purkait  (1997)  5  SCC  438, Panchugopal Barua v.  Umesh Chandra Goswami (1997) 4 SCC 413  and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722)

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10. At the very outset we may point out that the memo  of  second  appeal  filed  by  the plaintiff-appellant  before  the  High  Court suffered from a serious infirmity. Section 100 of the  Code,  as  amended  in  1976,  restricts  the jurisdiction of the High Court to hear a second appeal  only  on  “substantial  question  of  law involved in the case”. An obligation is cast on the  appellant  to  precisely  state  in  the memorandum of appeal the substantial question of  law  involved  in  the  appeal  and  which  the appellant  proposes  to  urge  before  the  High Court. The High Court must be satisfied that a substantial  question  of  law  is  involved  in  the case  and  such  question  has  then  to  be formulated by the High Court. Such questions or question  may  be  the  one  proposed  by  the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the  case  and  is  substantial  in  nature.  At  the hearing of  the appeal,  the scope of  hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial  question  of  law  determining  the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law,  not earlier  formulated by it,  is  not taken away  subject  to  the  twin  conditions  being satisfied: (i) the High Court feels satisfied that the  case  involves  such  question,  and  (ii)  the High  Court  records  reasons  for  its  such satisfaction.

12. The phrase “substantial question of law”, as occurring  in  the  amended  Section  100  is  not defined  in  the  Code.  The  word  substantial,  as qualifying “question of law”, means — of having substance,  essential,  real,  of  sound  worth,

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important or considerable. It is to be understood as  something  in  contradistinction  with  — technical,  of  no substance  or  consequence,  or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The  substantial  question  of  law  on  which  a second  appeal  shall  be  heard  need  not necessarily be a substantial  question of law of general  importance.  In  Guran Ditta  v.  T.  Ram Ditta (AIR 1928 PC 172), the phrase “substantial question of law” as it was employed in the last clause  of  the  then  existing  Section  110  CPC (since  omitted  by  the  Amendment  Act,  1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of  law  which  was  involved  in  the  case  as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962  SC  1314)  the  Constitution  Bench expressed  agreement  with  the  following  view taken by a Full Bench of the Madras High Court in  Rimmalapudi  Subba  Rao  v.  Noony  Veeraju (AIR 1951 Mad 969):

“When  a  question  of  law  is  fairly arguable,  where  there  is  room  for difference  of  opinion  on  it  or  where the Court thought it necessary to deal with that question at some length and discuss  alternative  views,  then  the question  would  be  a  substantial question of law. On the other hand if the  question  was  practically  covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of

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applying  those  principles  to  the particular  facts  of  the  case  it  would not be a substantial question of law.”

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

“The  proper  test  for  determining  whether  a question of law raised in the case is substantial would, in our opinion, be whether it is of general public  importance  or  whether  it  directly  and substantially  affects  the  rights  of  the  parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is  settled by the highest  court  or  the general principles  to  be  applied  in  determining  the question  are  well  settled  and there  is  a  mere question of applying those principles or that the plea  raised  is  palpably  absurd  the  question would not be a substantial question of law.”

14.  A  point  of  law  which  admits  of  no  two opinions may be a proposition of law but cannot be  a  substantial  question  of  law.  To  be “substantial”  a  question  of  law  must  be debatable, not previously settled by law of the land or a binding precedent,  and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question  should  emerge  from  the  sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely  new  point  raised  for  the  first  time

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before the High Court is not a question involved in  the  case  unless  it  goes  to  the  root  of  the matter.  It  will,  therefore,  depend on the facts and  circumstance  of  each  case  whether  a question of law is a substantial one and involved in  the  case,  or  not;  the  paramount  overall consideration  being  the  need  for  striking  a judicious  balance  between  the  indispensable obligation  to  do  justice  at  all  stages  and impelling necessity of avoiding prolongation in the life of any lis”.

25. Again in the case of Thiagarajan  And Others

vs.   Sri  Venugopalaswamy  B.  Koil  And  Others

reported in 2004 (5) SCC 762, a two Judge Bench of

this  Court  in  paragraphs  17,  24,  25  and  26

observed as under:  

 “17. Sub-section (5) of Section 100 CPC says

that 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 a question. The proviso states 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. In the instant case, the High Court at the time of final hearing formulated five more questions of  law  as  extracted  above  after  hearing  the counsel for both sides having miserably failed to record  the  reasons  for  formulating  the  other substantial questions of law.

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24. In our opinion, the High Court has erred in  holding  that  the  appellants  have  failed  to establish  their  title  to  the  suit  property evidently without appreciating the evidence on record in its proper perspective by making only reference to  portions  of  evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead  of  only  a  portion  thereof  especially while deciding to look into and reappreciate the evidence  despite  the  limited  scope  under Section 100 CPC. In our view, the learned Single Judge  of  the  High  Court  has  exceeded  his jurisdiction  in  reassessing,  reappreciating  and making  a  roving  enquiry  by  entering  into  the factual arena of the case which is not the one contemplated  under  the  limited  scope  of jurisdiction  of  a  second  appeal  under  Section 100 CPC.

25. In the present case, the lower appellate court  fairly  appreciated  the  evidence  and arrived at a conclusion that the appellants’ suit was to be decreed and that the appellants are entitled  to  the  relief  as  prayed  for.  Even assuming  that  another  view  is  possible  on  a reappreciation  of  the  same  evidence,  that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.

26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court  in a catena of decisions held  that  where  findings  of  fact  by  the  lower appellate court are based on evidence, the High Court  in  second  appeal  cannot  substitute  its

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own  findings  on  reappreciation  of  evidence merely  on  the  ground  that  another  view  was possible”.

26. Reverting to the facts of the case at hand

and keeping in view the aforesaid principles of law in

mind, we find that  the High Court while admitting

the  second  appeal  had  formulated  the  following

questions:

1) Whether  the  finding  of  the  Court  below, that the suit site on O.S.No.53/93 in S.No.35/5, Ex.C.I  AI  and  the  leased  site,  surrendered  by P.W.6  in  S.No.35/5  CI  A  19  arc  one  and  the same, is vitiated by its failure to consider the admissions  of  D.W.I  and  the  relevant documentary  evidence,  which  establish  that there was a sub-division of S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a Government poramboke land and the site of  the defendant classified  as  a  “Darga Burial  Ground Mosque”, each  distinct  and  different  from  the  other? Admissions of D.W.I:-

20 Whether the Court below have failed to see that  Ex.A.2  (Gift  deed being  a  thirty  year  old document, the presumption under Section 90 of Evidence  Act  applies,  both  with  regard  to execution  and  attestation,  and  as  such  the opinion of the trial Court that it is suspicious document,  is  untenable  and  unsustainable  in law?

3) Whether the lower appellate Court erred in

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law  in  not  framing  proper  points  for consideration, on the validity of Ex.A.2 gift deed and the sub-division of suit property S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C. and as such the Judgment of the lower appellate Court  as  a  final  Court  of  fact  is  vitiated  by errors of law?

4) Whether  the  lower  appellate  Court  has erred in law, in holding that Ex.A2 gift deed is invalid,  because  the  property  gifted  is poramboke, when the Government itself (second defendant)  has  not  disputed  either  the  long possession or possessory title of the plaintiff of the suit property?

5) Whether  the  lower  appellate  Court  has erred in law on the question of title, merely by adverting  to  Ex.A.3,  Ex.A.4,  Ex.A.5  –  tax receipts,  and the entire reasoning is  based on mere  guess  work  ignoring  the  relevant  and clinching documentary evidence?

6) Whether the finding of the lower appellate Court that P.W.6 (plaintiff’s son) did not vacate the site even after the lease period of the site S.No.35/5  C1A19  of  D.I  is  not  based  on  any evidence except the word of D.W.2 (no witnesses wee examined) and the conclusion reached by it that the suit site in O.S.No.53/93 and the leased site are the same, is contrary to the evidence on record?

7) Whether  the  lower  appellate  Court  has erred  in  law  in  its  failure  to  consider  the admission  of  D.W.2  himself  that  his  father encroached  into  the  plaintiff’s  site  and  was issued  B-Memos  and  paid  the  penalty,  which conclusively establishes that the two sites are different and not one and the same?

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8) Whether  the  very  approach  of  the  lower appellate Court is essentially erroneous and its findings are liable to be set aside (AIR 1992 S.C., 1604)?

27.  In our considered opinion, the aforementioned

questions cannot be regarded as satisfying the test

of being a "substantial questions of law" within the

meaning of Section 100 of CPC. These questions, in

our view, are essentially  questions of  fact.  In any

event,  the  second  appeal  did  not  involve  any

substantial questions of law as contemplated under

Section 100 of CPC and lastly no case was made out

by  the  respondents  before  the  High  Court  for

remanding of the case to the trial court for de novo

trial in all the civil suits. This we say for following

reasons.

28. Firstly,  when  the  trial  court  and  the  first

appellate  court  on  appreciation  of  evidence

concurrently  held  in  three  civil  suits  filed  by  the

respondents that they failed to prove their title over

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the suit-land and further in two civil suits filed by

the appellants that they were able to establish their

relationship of landlord and tenant in relation to the

suit-land,  such  findings,  in  our  opinion,  were

binding  on  the  High  Court  being  concurrent  in

nature.  

29. Secondly,  none  of  the  findings  of  the  two

courts  below were  perverse  to  the  extent  that  no

judicial person could ever come to such conclusion

and that these findings were not in conflict with any

provision of  law governing the issue and that  the

findings  were  also  not  against  the  pleadings  or

evidence.  In this  view of  the  matter,  in  our  view,

these findings were not capable of being set aside by

the High Court in exercise of  its second appellate

jurisdiction  under  Section  100  CPC,  rather  they

were binding on the High Court.  

30. Thirdly,  apart  from  what  is  held  above,  the

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questions  formulated  were  neither  debatable  nor

arguable and nor did they involve any question of

law which  could  be  said  to  arise  in  the  case.  In

other words, sine qua non for admitting the second

appeal was existence of  "substantial question of law

in  the  case"  and  therefore  unless  the  questions

framed  were  debatable,  or/and  arguable  or/and

involving any legal question, the High Court had no

jurisdiction  to  formulate  such  questions  treating

them to be substantial question of law. Indeed the

High Court had the jurisdiction under sub-Section

(5) of Section 100 of CPC to examine at the time of

hearing  as  to  whether  the  questions  framed were

substantial  questions  of  law  or  not  and  whether

they arose out of the case, but the High Court failed

to do so.  

31. Fourthly,  having  formulated  the  questions

(though wrongly), the High Court went on to discuss

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all the issues in 59 pages as if it was hearing first

appeals and instead of answering the questions, set

aside the judgment/decree of the two courts below

and proceeded to remand the cases to the trial court

for de novo trial in all civil suits. In our opinion, the

High Court had no jurisdiction to remand the case

to  the  trial  court  inasmuch  as  no  party  to  the

appeal had even raised this ground before the first

appellate court or/and the High Court as to why the

remand of the case to the trial Court is called for

and  nor  there  was  any  finding  recorded  on  this

question by the first appellate court.  

32. We  also  find  that  no  party  to  the  appeals

complained at any stage of the proceedings that the

trial in the suits was unsatisfactory which caused

prejudice to them requiring remand of the cases to

the  trial  court  to  enable  them  to  lead  additional

evidence. In any event, we find that  the High Court

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also did not frame any substantial question of law

on the question as to whether any case for remand

of the case  to the trial court has been made out and

if so on what grounds?  

33. Section 100 empowers the High court to decide

the second appeal only on the questions framed.  In

other words, the jurisdiction of High Curt to decide

the  second  appeal  is  confined  only  to  questions

framed.  When the High Court did not frame any

question  on  the  question  of  remand,  to  the  trial

court  a  fortiori it  had no jurisdiction to deal  with

such question much less to answer in respondent’s

favour.

34. The High Court, in our view, further failed to

see that if the first appellate court could decide the

appeal on merits without there being any objection

raised for remanding of the case to the trial court,

we  are  unable  to  appreciate  as  to  why  the  High

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Court  could not  decide the  appeal  on merits  and

instead raised the issue of remand of its own and

passed the order to that effect.  

35. It is a settled principle of law that in order to

claim remand of  the  case  to  the  trial  court,  it  is

necessary for the appellant to first raise such plea

and then make out a case of remand on facts. The

power of the appellate court to remand the case to

subordinate court is contained in order XLI Rule 23,

23-A  and  25  of  CPC.   It  is,  therefore,  obligatory

upon the appellant to bring the case under any of

these  provisions  before  claiming  a  remand.  The

appellate court is required to record reasons as to

why it  has  taken recourse  to  any one  out  of  the

three Rules of Order XLI of CPC for remanding the

case to the trial court. In the absence of any ground

taken by the respondents (appellants before the first

appellate  court  and  High  Court)  before  the  first

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appellate court and the High Court as to why the

remand order in these cases is called for and if so

under which Rule of Order XLI of CPC and further

in  the  absence  of  any  finding,  there  was  no

justification on the part of the High Court to remand

the case to the trial court. The High Court instead

should  have  decided  the  appeals  on  merits.  We,

however, do not consider proper to remand the case

to  High Court  for  deciding  the  appeals  on  merits

and instead examine the merits of the case in these

appeals.     

36.  We, however, find no error in the judgment of

the first appellate court, which in our view rightly

upheld the judgment and decree of the trial court.

37.  Indeed, it  is  clear from mere reading of  the

pleadings. The main case set up by the respondents

for  claiming  title  over  the  suit-land  was  founded

only on the plea of adverse possession against the

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State.  In  other  words,  the  respondents’  case  was

that  they  acquired title  over  the  suit-land on  the

strength of their adverse possession in the suit-land

through their predecessors who were in continuous

possession over the suit-land for the last 100 years

qua state. The respondents did not claim title on the

strength of  any grant or Lease Deed or Patta etc.

issued by the State in their favour.   

38. The only question which,  therefore,  arose for

consideration before the courts below was whether

the respondents were able to establish their adverse

possession over the suit-land as against the State so

as to entitle them to claim title in their favour over

the suit-land.

39. The respondents having set up this plea were

required  to  prove  it  with  the  aid  of  satisfactory

evidence as the burden of proof lay on them being

the plaintiffs. As observed (supra), both the courts

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held  on  appreciation  of  evidence  that  the

respondents  were failed to  establish their  adverse

possession over the suit-land qua State for want of

adequate  evidence.  It  being  a  question  of  fact,  a

finding on this question was binding on the High

Court unless any error of law in such finding had

been pointed out. It was not so pointed out.  

40. We also find that the High Court had framed

one  question  on  the  validity  of  one  gift.  This

question  in  our  view  was  of  no  significance  for

deciding the main question involved in this case.  It

is for the reason that the dispute in this case was

between the respondents on the one hand and the

State  on the other  relating to the title  which was

claimed by  the  respondents  on  the  basis  of  their

adverse  possession  and  to  decide  this  question,

execution  of  gift  inter  se two  members  of

respondents’ family was of no relevance.

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41.  In  these  circumstances,  the  alleged  gift

whether  executed  between  the  two  members  of

respondents’ family or not and if so whether it was

valid or not, did not arise out of the case. It is apart

from  the  fact  that  it  did  not  constitute  any

substantial  question of law within the meaning of

Section 100 of CPC.     

42. In the light of foregoing discussion, we are of

the considered opinion that the reasoning and the

conclusion  arrived  at  by  the  High  Court  is  not

legally sustainable and is accordingly liable to be set

aside.

43. As a consequence, these appeals succeed and

are hereby allowed. The impugned judgment is set

aside and the judgment/decree of the first appellate

court and that of the trial court are hereby restored.

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44. The respondent no.1 to pay costs quantified at

Rs.10,000/- to the appellants.

                  ………...................................J.          [J. CHELAMESWAR]

                             …...……..................................J.

    [ABHAY MANOHAR SAPRE] New Delhi; October 03, 2016   

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