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Wednesday, October 5, 2016

When there is a title dispute - internal arrangements/transactions between the set of one party is immaterial ,on their failure to prove adverse possession. No disputed question arose under sec.100 C.P.C. for high court to interfere = 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 - 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 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.= 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. 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 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. 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.

                                                                  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  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  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 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, 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.
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 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. 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 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  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 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 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.
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 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)

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, 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  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 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.

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


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 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?

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  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 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 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 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 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 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 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  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.
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.


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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