REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5057 OF 2009
Narayana Gramani & Ors. ….Appellant(s)
VERSUS
Mariammal & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the plaintiffs against the
final judgment and order dated 09.07.2007 passed by
the High Court of Judicature at Madras in Second
Appeal No.652 of 1995 whereby the Single Judge of
the High Court allowed the second appeal filed by
defendant Nos.2 to 5 and set aside the judgment and
decree dated 05.08.1994 passed by the Additional
1
Subordinate Judge, Chingalpattu in A.S. No.72 of
1993 and dismissed the suit filed by the appellants
herein.
2. In order to appreciate the issues involved in the
appeal, which lie in a narrow compass, few facts need
mention hereinbelow.
3. Appellant Nos. 1 and 2 are the plaintiffs whereas
appellant No. 3 is the legal representative of third
plaintiffThirunavukkarasu, who died pending
litigation. The respondents are defendants in the civil
suit.
4. The three plaintiffs claiming to be the members of
one family filed a civil suit against the defendants for a
declaration and permanent injunction in relation to
the land situated at No. 294/1 Vembanur Village,
Kadapakkam Firka, (patta No. 491), Old Paimash No.
201/8 renumbered as S. No 399/4, Acs. 1.08
(hereinafter referred to as "suit land").
2
5. The plaintiffs traced the title to the suit land
through their predecessorintitle coupled with Patta
issued by the Estate Manager in relation to the suit
land. According to the plaintiffs, there had been a
family partition inter se the plaintiffs wherein the suit
land fell to their share. The plaintiffs alleged that they
have been in possession of the suit land, invested
money and paying revenue taxes. The plaintiffs alleged
that the defendants are trying to disturb their
possession over the suit land without any legal
authority and are also asserting their title over the suit
land, which they do not have in their favour and hence
there arise a need to file the civil suit and claim
declaration and permanent injunction in relation to
the suit land.
6. The defendants filed their written statement and
denied the plaintiffs’ claim over the suit land.
According to them, they are the owners of the suit
land having purchased the same vide sale deed dated
3
15.02.1967 for Rs.200/ from one Muthu Mudaliar
and his son Rajaram Mudaliar who, according to the
defendants, were the owners of the suit land.
Defendant No. 1 also claimed to be in possession of
the suit land and cultivating the same.
7. The Trial Court framed two issues, viz., (1)
Whether the plaintiffs are entitled for seeking
declaration and permanent injunction; and (2) If so, for
what reliefs. Parties adduced their evidence (oral and
documentary). By Judgment and decree dated
23.11.1993, the Trial Court decreed the plaintiffs’ suit.
It was held that the plaintiffs are able to prove their
ownership over the suit land on the basis of the
documents filed by them; that the plaintiffs are in
possession of the suit land; that they are, therefore,
entitled to claim a declaration of their title over the
suit land as its owners so also are entitled to claim
permanent injunction against the defendants
4
restraining them from interfering in their (plaintiffs’)
peaceful possession over the suit land.
8. The defendants felt aggrieved and filed first
appeal before the Additional SubJudge (Appeal Suit
No. 72/1993). By Judgment dated 05.08.1994, the
Appellate Court dismissed the defendants’ appeal and
affirmed the judgment and decree passed by the Trial
Court.
9. The defendants pursued the matter further and
filed second appeal in the High Court at Madras. The
High Court admitted the second appeal on the
following substantial question of law:
“Whether the same judge can dismiss
an appeal on the ground that he has already
rejected the appellants’ case in an earlier
appeal against different parties in the
absence of pleadings of rejudicata or estoppel
by judgment by neither of the parties,
especially when the issue is pending for
decision before the High Court by way of
second appeal.”
5
10. By impugned judgment, the High Court allowed
the appeal and set aside the judgment and decree of
the two courts below and, in consequence, dismissed
the suit giving rise to filing of the present appeal by
way of special leave in this Court by the plaintiffs.
11. The short question, which arises for
consideration in this appeal, is whether the High Court
was justified in allowing the defendants’ appeal and, in
consequence, dismissing the plaintiffs’ suit which was
decreed by the two Courts below.
12. Mr. MSM Asaithambi, learned counsel appeared
for the appellants. Despite notice, none appeared for
the respondents.
13. Having heard the learned counsel for the
appellants and on perusal of the record of the case, we
are inclined to allow the appeal and while setting aside
the impugned judgment remand the case to the High
Court for deciding the appeal afresh on merits in
6
accordance with law after framing appropriate
substantial question of law as indicated below.
14. Before we examine the facts of the case, it is
necessary to see the scope of Section 100 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “the
Code”), which empowers the High Court to decide the
second appeals. Indeed, it is explained in several
decisions of this Court and thus remains no more res
integra.
15. Section 100 of the Code reads as under:
7
“100. Second appeal. (1) Save as otherwise
expressly provided in the body of this Code or
by any other law for the time being in force, an
appeal shall lie to the High Court from every
decree passed in appeal by any Court
subordinate to the High Court, if the High
Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from
an appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state
the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question
so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that
the case does not involve such question:
Provided that nothing in this subsection 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 formulated by it, if it is
satisfied that the case involves such
question.”
16. Subsection (1) of Section 100 says that the
second appeal would be entertained by the High Court
only if the High Court is "satisfied" that the case
8
involves a "substantial question of law". Sub section
(3) makes it obligatory upon the appellant to precisely
state in memo of appeal the "substantial question of
law" involved in the appeal. Subsection (4) provides
that where the High Court is satisfied that any
substantial question of law is involved in the case, it
shall formulate that question. In other words, once the
High Court is satisfied after hearing the appellant or
his counsel, as the case may be, that the appeal
involves a substantial question of law, it has to
formulate that question and then direct issuance of
notice to the respondent of the memo of appeal along
with the question of law framed by the High Court.
Subsection (5) provides that the appeal shall be heard
only on the question formulated by the High Court
under subsection (4). In other words, the jurisdiction
of the High Court to decide the second appeal is
confined only to the question framed by the High
Court under subsection(4). The respondent, however,
9
at the time of hearing of the appeal is given a right
under subsection (5) to raise an objection that the
question framed by the High Court under subsection
(4) does not involve in the appeal. The reason for giving
this right to the respondent for raising such objection
at the time of hearing is because the High Court
frames the question at the admission stage which is
prior to issuance of the notice of appeal to the
respondent. In other words, the question is framed
behind the back of respondent and, therefore, subsection(5)
enables him to raise such objection at the
time of hearing that the question framed does not arise
in the appeal. The proviso to subsection (5), however,
also recognizes the power of the High Court to hear the
appeal on any other substantial question of law which
was not initially framed by the High Court under subsection
(4). However, this power can be exercised by
the High Court only after assigning the reasons for
framing such additional question of law at the time of
10
hearing of the appeal. (See Sanatosh Hazari vs.
Purushottam Tiwari [(2001) 3 SCC 179] and Surat
Singh vs. Siri Bhagwan & Ors. [(2018) 4 SCC 562]
17. Keeping in view the scope and ambit of the
powers of the High Court while deciding the second
appeal when we advert to the facts of the case, we find
that the High Court committed an error in allowing the
defendants’ second appeal and further erred in
dismissing the plaintiffs’ suit by answering the
substantial question of law. This we say for more than
one reason.
18. First, mere perusal of the impugned order would
go to show that the High Court had admitted the
second appeal by framing only one substantial
question of law, namely, whether the first Appellate
Court was justified in dismissing the defendants’ first
appeal by taking into consideration one earlier
11
litigation in relation to the suit land, which was not
between the same parties.
19. The High Court held that the first Appellate Court
was not justified because the earlier litigation was not
between the present plaintiffs and the defendants but
it was between the different parties and, therefore, any
decision rendered in such litigation would not operate
as res judicata in the present litigation between the
parties. This resulted in allowing of the appeal and
dismissing the suit.
20. The High Court (Single Judge), in our opinion,
failed to see that even if the said question was
answered in defendants’ favour, yet the plaintiffs’ suit
could not have been dismissed much less in its
entirety unless the High Court had further examined
the main issue of ownership of the plaintiffs over the
suit land, which was decided by the two Courts below
in plaintiffs’ favour on merits.
12
21. In other words, we are of the view that it was
necessary for the High Court to have proceeded to
examine the issue relating to the plaintiffs’ title over
the suit land, which was decided by the two Courts in
plaintiffs’ favour holding that the plaintiffs were able to
prove their title over the suit land on the basis of
documentary evidence whereas the defendants failed
to prove their title though asserted.
22. Second, the High Court committed another error
when it failed to frame any substantial question of law
on the issue of the plaintiffs’ ownership over the suit
land.
23. So long as no substantial question of law was
framed, the High Court had no jurisdiction to examine
the said issue in its second appellate jurisdiction. In
other words, the High Court having framed only one
question, which did not pertain to issue of ownership
of the suit land, had no jurisdiction to examine the
issue of ownership. It was not permissible in the light
13
of Section 100 (5) of the Code, which empowers the
High Court to decide the appeal only on the question
framed and not beyond it.
24. Third, the High Court could invoke its powers
under proviso to subsection (5) of Section 100 and
frame one or two additional questions, as the case may
be, even at the time of hearing of the second appeal. It
would have enabled the High Court to examine the
issue of ownership of the suit land in its correct
perspective. It was, however, not done by the High
Court.
25. Fourth, the High Court, while examining the
question framed, also cursorily touched the ownership
issue which, in our opinion, the High Court could not
have done for want of framing of any substantial
question of law on the ownership issue. That apart,
the High Court also failed to see that the issue of res
judicata and the issue of ownership were independent
issues and the decision on one would not have
14
answered the other one. In other words, both the
issues had to be examined independent of each other
on their respective merits. It was, however, possible
only after framing of substantial questions on both the
issues as provided under Section 100(4) and (5) of the
Code. This was, however, not done in this case.
26. In the light of aforementioned four reasons, we
are of the considered opinion that the impugned
judgment is not legally sustainable and, therefore, it
has to be set aside.
27. Since the High Court failed to examine the issue
of ownership of the plaintiffs on its merits for want of
framing of the substantial question(s) of law, the
matter has to be remanded to the High Court for
deciding the question as to whether two Courts below
were right in their respective jurisdiction in holding
that the plaintiffs were able to prove their title over the
suit land on the basis of evidence (oral/documentary)
15
adduced by them and, if so, whether such finding
should be upheld or not.
28. In view of the foregoing discussion, the appeal
succeeds and is allowed. Impugned order is set aside.
The case is remanded to the High Court for deciding
the second appeal afresh on merits in accordance with
law by properly framing the substantial question(s) of
law on the question of ownership of the plaintiffs over
the suit land and then to examine as to whether the
findings on the said question recorded by two Courts
suffer from any error(s) or not.
29. We, however, make it clear that we have not
applied our mind on the merits of the controversy
having formed an opinion to remand the case to the
High Court for deciding the appeal afresh as observed
above and, therefore, the High Court will decide the
appeal strictly in accordance with law uninfluenced by
any of our observations.
16
30. Since the matter is quite old, we request the High
Court to decide the appeal as expeditiously as possible
preferably within 6 months from the date of this
judgment.
………...................................J.
[ABHAY MANOHAR SAPRE]
...……..................................J.
[VINEET SARAN]
New Delhi;
September 11, 2018
17
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5057 OF 2009
Narayana Gramani & Ors. ….Appellant(s)
VERSUS
Mariammal & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the plaintiffs against the
final judgment and order dated 09.07.2007 passed by
the High Court of Judicature at Madras in Second
Appeal No.652 of 1995 whereby the Single Judge of
the High Court allowed the second appeal filed by
defendant Nos.2 to 5 and set aside the judgment and
decree dated 05.08.1994 passed by the Additional
1
Subordinate Judge, Chingalpattu in A.S. No.72 of
1993 and dismissed the suit filed by the appellants
herein.
2. In order to appreciate the issues involved in the
appeal, which lie in a narrow compass, few facts need
mention hereinbelow.
3. Appellant Nos. 1 and 2 are the plaintiffs whereas
appellant No. 3 is the legal representative of third
plaintiffThirunavukkarasu, who died pending
litigation. The respondents are defendants in the civil
suit.
4. The three plaintiffs claiming to be the members of
one family filed a civil suit against the defendants for a
declaration and permanent injunction in relation to
the land situated at No. 294/1 Vembanur Village,
Kadapakkam Firka, (patta No. 491), Old Paimash No.
201/8 renumbered as S. No 399/4, Acs. 1.08
(hereinafter referred to as "suit land").
2
5. The plaintiffs traced the title to the suit land
through their predecessorintitle coupled with Patta
issued by the Estate Manager in relation to the suit
land. According to the plaintiffs, there had been a
family partition inter se the plaintiffs wherein the suit
land fell to their share. The plaintiffs alleged that they
have been in possession of the suit land, invested
money and paying revenue taxes. The plaintiffs alleged
that the defendants are trying to disturb their
possession over the suit land without any legal
authority and are also asserting their title over the suit
land, which they do not have in their favour and hence
there arise a need to file the civil suit and claim
declaration and permanent injunction in relation to
the suit land.
6. The defendants filed their written statement and
denied the plaintiffs’ claim over the suit land.
According to them, they are the owners of the suit
land having purchased the same vide sale deed dated
3
15.02.1967 for Rs.200/ from one Muthu Mudaliar
and his son Rajaram Mudaliar who, according to the
defendants, were the owners of the suit land.
Defendant No. 1 also claimed to be in possession of
the suit land and cultivating the same.
7. The Trial Court framed two issues, viz., (1)
Whether the plaintiffs are entitled for seeking
declaration and permanent injunction; and (2) If so, for
what reliefs. Parties adduced their evidence (oral and
documentary). By Judgment and decree dated
23.11.1993, the Trial Court decreed the plaintiffs’ suit.
It was held that the plaintiffs are able to prove their
ownership over the suit land on the basis of the
documents filed by them; that the plaintiffs are in
possession of the suit land; that they are, therefore,
entitled to claim a declaration of their title over the
suit land as its owners so also are entitled to claim
permanent injunction against the defendants
4
restraining them from interfering in their (plaintiffs’)
peaceful possession over the suit land.
8. The defendants felt aggrieved and filed first
appeal before the Additional SubJudge (Appeal Suit
No. 72/1993). By Judgment dated 05.08.1994, the
Appellate Court dismissed the defendants’ appeal and
affirmed the judgment and decree passed by the Trial
Court.
9. The defendants pursued the matter further and
filed second appeal in the High Court at Madras. The
High Court admitted the second appeal on the
following substantial question of law:
“Whether the same judge can dismiss
an appeal on the ground that he has already
rejected the appellants’ case in an earlier
appeal against different parties in the
absence of pleadings of rejudicata or estoppel
by judgment by neither of the parties,
especially when the issue is pending for
decision before the High Court by way of
second appeal.”
5
10. By impugned judgment, the High Court allowed
the appeal and set aside the judgment and decree of
the two courts below and, in consequence, dismissed
the suit giving rise to filing of the present appeal by
way of special leave in this Court by the plaintiffs.
11. The short question, which arises for
consideration in this appeal, is whether the High Court
was justified in allowing the defendants’ appeal and, in
consequence, dismissing the plaintiffs’ suit which was
decreed by the two Courts below.
12. Mr. MSM Asaithambi, learned counsel appeared
for the appellants. Despite notice, none appeared for
the respondents.
13. Having heard the learned counsel for the
appellants and on perusal of the record of the case, we
are inclined to allow the appeal and while setting aside
the impugned judgment remand the case to the High
Court for deciding the appeal afresh on merits in
6
accordance with law after framing appropriate
substantial question of law as indicated below.
14. Before we examine the facts of the case, it is
necessary to see the scope of Section 100 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “the
Code”), which empowers the High Court to decide the
second appeals. Indeed, it is explained in several
decisions of this Court and thus remains no more res
integra.
15. Section 100 of the Code reads as under:
7
“100. Second appeal. (1) Save as otherwise
expressly provided in the body of this Code or
by any other law for the time being in force, an
appeal shall lie to the High Court from every
decree passed in appeal by any Court
subordinate to the High Court, if the High
Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from
an appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state
the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question
so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that
the case does not involve such question:
Provided that nothing in this subsection 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 formulated by it, if it is
satisfied that the case involves such
question.”
16. Subsection (1) of Section 100 says that the
second appeal would be entertained by the High Court
only if the High Court is "satisfied" that the case
8
involves a "substantial question of law". Sub section
(3) makes it obligatory upon the appellant to precisely
state in memo of appeal the "substantial question of
law" involved in the appeal. Subsection (4) provides
that where the High Court is satisfied that any
substantial question of law is involved in the case, it
shall formulate that question. In other words, once the
High Court is satisfied after hearing the appellant or
his counsel, as the case may be, that the appeal
involves a substantial question of law, it has to
formulate that question and then direct issuance of
notice to the respondent of the memo of appeal along
with the question of law framed by the High Court.
Subsection (5) provides that the appeal shall be heard
only on the question formulated by the High Court
under subsection (4). In other words, the jurisdiction
of the High Court to decide the second appeal is
confined only to the question framed by the High
Court under subsection(4). The respondent, however,
9
at the time of hearing of the appeal is given a right
under subsection (5) to raise an objection that the
question framed by the High Court under subsection
(4) does not involve in the appeal. The reason for giving
this right to the respondent for raising such objection
at the time of hearing is because the High Court
frames the question at the admission stage which is
prior to issuance of the notice of appeal to the
respondent. In other words, the question is framed
behind the back of respondent and, therefore, subsection(5)
enables him to raise such objection at the
time of hearing that the question framed does not arise
in the appeal. The proviso to subsection (5), however,
also recognizes the power of the High Court to hear the
appeal on any other substantial question of law which
was not initially framed by the High Court under subsection
(4). However, this power can be exercised by
the High Court only after assigning the reasons for
framing such additional question of law at the time of
10
hearing of the appeal. (See Sanatosh Hazari vs.
Purushottam Tiwari [(2001) 3 SCC 179] and Surat
Singh vs. Siri Bhagwan & Ors. [(2018) 4 SCC 562]
17. Keeping in view the scope and ambit of the
powers of the High Court while deciding the second
appeal when we advert to the facts of the case, we find
that the High Court committed an error in allowing the
defendants’ second appeal and further erred in
dismissing the plaintiffs’ suit by answering the
substantial question of law. This we say for more than
one reason.
18. First, mere perusal of the impugned order would
go to show that the High Court had admitted the
second appeal by framing only one substantial
question of law, namely, whether the first Appellate
Court was justified in dismissing the defendants’ first
appeal by taking into consideration one earlier
11
litigation in relation to the suit land, which was not
between the same parties.
19. The High Court held that the first Appellate Court
was not justified because the earlier litigation was not
between the present plaintiffs and the defendants but
it was between the different parties and, therefore, any
decision rendered in such litigation would not operate
as res judicata in the present litigation between the
parties. This resulted in allowing of the appeal and
dismissing the suit.
20. The High Court (Single Judge), in our opinion,
failed to see that even if the said question was
answered in defendants’ favour, yet the plaintiffs’ suit
could not have been dismissed much less in its
entirety unless the High Court had further examined
the main issue of ownership of the plaintiffs over the
suit land, which was decided by the two Courts below
in plaintiffs’ favour on merits.
12
21. In other words, we are of the view that it was
necessary for the High Court to have proceeded to
examine the issue relating to the plaintiffs’ title over
the suit land, which was decided by the two Courts in
plaintiffs’ favour holding that the plaintiffs were able to
prove their title over the suit land on the basis of
documentary evidence whereas the defendants failed
to prove their title though asserted.
22. Second, the High Court committed another error
when it failed to frame any substantial question of law
on the issue of the plaintiffs’ ownership over the suit
land.
23. So long as no substantial question of law was
framed, the High Court had no jurisdiction to examine
the said issue in its second appellate jurisdiction. In
other words, the High Court having framed only one
question, which did not pertain to issue of ownership
of the suit land, had no jurisdiction to examine the
issue of ownership. It was not permissible in the light
13
of Section 100 (5) of the Code, which empowers the
High Court to decide the appeal only on the question
framed and not beyond it.
24. Third, the High Court could invoke its powers
under proviso to subsection (5) of Section 100 and
frame one or two additional questions, as the case may
be, even at the time of hearing of the second appeal. It
would have enabled the High Court to examine the
issue of ownership of the suit land in its correct
perspective. It was, however, not done by the High
Court.
25. Fourth, the High Court, while examining the
question framed, also cursorily touched the ownership
issue which, in our opinion, the High Court could not
have done for want of framing of any substantial
question of law on the ownership issue. That apart,
the High Court also failed to see that the issue of res
judicata and the issue of ownership were independent
issues and the decision on one would not have
14
answered the other one. In other words, both the
issues had to be examined independent of each other
on their respective merits. It was, however, possible
only after framing of substantial questions on both the
issues as provided under Section 100(4) and (5) of the
Code. This was, however, not done in this case.
26. In the light of aforementioned four reasons, we
are of the considered opinion that the impugned
judgment is not legally sustainable and, therefore, it
has to be set aside.
27. Since the High Court failed to examine the issue
of ownership of the plaintiffs on its merits for want of
framing of the substantial question(s) of law, the
matter has to be remanded to the High Court for
deciding the question as to whether two Courts below
were right in their respective jurisdiction in holding
that the plaintiffs were able to prove their title over the
suit land on the basis of evidence (oral/documentary)
15
adduced by them and, if so, whether such finding
should be upheld or not.
28. In view of the foregoing discussion, the appeal
succeeds and is allowed. Impugned order is set aside.
The case is remanded to the High Court for deciding
the second appeal afresh on merits in accordance with
law by properly framing the substantial question(s) of
law on the question of ownership of the plaintiffs over
the suit land and then to examine as to whether the
findings on the said question recorded by two Courts
suffer from any error(s) or not.
29. We, however, make it clear that we have not
applied our mind on the merits of the controversy
having formed an opinion to remand the case to the
High Court for deciding the appeal afresh as observed
above and, therefore, the High Court will decide the
appeal strictly in accordance with law uninfluenced by
any of our observations.
16
30. Since the matter is quite old, we request the High
Court to decide the appeal as expeditiously as possible
preferably within 6 months from the date of this
judgment.
………...................................J.
[ABHAY MANOHAR SAPRE]
...……..................................J.
[VINEET SARAN]
New Delhi;
September 11, 2018
17
