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
-----------------------
32
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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32
