NAZIR MOHAMED versus J. KAMALA AND ORS.

[2020] 7 S.C.R. 763

NAZIR MOHAMED

J. KAMALA AND ORS.

(Civil Appeal Nos. 2843-2844 of 2010)

AUGUST 27, 2020

[NAVIN SINHA AND INDIRA BANERJEE, JJ.]

Code of Civil Procedure, 1908:

s.100 – Second appeal – Nature and scope of – Held: rightto appeal is conferred by statute – If the statute confers limitedright of appeal, the Court cannot expand the scope of the appeal –s.100 restricts the right of second appeal only where substantialquestion of law is involved – In order to be substantial, the questionmust be debatable, not previously settled by the law of the land orany binding precedent, and must have material bearing on thedecision of the case and/ or rights of the parties, if answered eitherway – Whether question of law is substantial and whether suchquestion is involved in the case is to be determined on the facts andcircumstances of the case – finding of fact is not open to challengein second appeal even if the appreciation of evidence is palpablyerroneous and finding of fact is incorrect – An entirely new pointraised for the first time, before High Court is not question involved,unless it goes to the root of the matter – In the facts of the presentcase, no substantial questions was involved in the second appealsand hence High Court wrongly entertained the second appeals.

Adverse Possession:

Suit for declaration of ownership and for possession of thesuit premises – Alleging that the suit premises was let out to thedefendant – Written statement denying the tenancy and claimingabsolute ownership – Trial Court dismissed the suit – First AppellateCourt partly decreed the suit holding that the plaintiff was entitledto ownership of half portion of the suit property which his fatherhad purchased and not the other portion which was purchased byfather of the defendant – However, First Appellate Court denieddecree of possession to the plaintiff on the ground that the plaintifffailed to prove the tenancy and that the defendant was in occupation

Aof the premises for long time – Second appeal by both the parties– High Court dismissed the appeal of defendant and allowing theappeal of the plaintiff granted him relief of recovery of possession– Appeal to Supreme Court – Held: person in possession, in theassumed character of owner has perfectly good title against allbut the rightful owner – But if the rightful owner does not assert hisBright of possession, within limitation period, his right is extinguishedforever, and the possessory owner acquires an absolute title – Theconclusion of the First Appellate Court did not warrant interference– High Court could not have reversed the finding of First AppellateCourt and allowed relief of recovery of possession when theCdefendant was in complete possession of the suit premises, as ownerwith absolute rights for over 28 years.

Maxims:

‘Possession follows title’ – Applicability of – Held: The maximis limited in its application to property – The presumption thatDpossession must be deemed to follow title, arises only where there isno definite proof of possession by anyone else – person claimingdecree of possession needs to establish his entitlement to get suchpossession and also establish that his claim is not barred by law oflimitation.EWords and Phrases:

‘Mesne profit’ – Meaning of.

Allowing the appeals, the Court

HELD: 1.1 second appeal, or for that matter, any appealFis not matter of right. The right of appeal is conferred by statute.A second appeal only lies on substantial question of law. If statuteconfers limited right of appeal, the Court cannot expand thescope of the appeal. It was not open to the Respondent-Plaintiffto re-agitate facts or to call upon the High Court to reanalyze orre-appreciate evidence in Second Appeal. [Para 25][777-B-C]G

1.2 Section 100 of the CPC, as amended, restricts the rightof second appeal, to only those cases, where substantial questionof law is involved. The existence of “substantial question oflaw” is the sine qua non for the exercise of jurisdiction underSection 100 of the CPC. [Para 26][777-C-D]H

1.3 There was no question of law involved in either of thesecond appeals, far less any substantial question of law, to warrantinference of the High Court in the Second Appeal filed by thedefendant. [Para 28][777-F]

1.4 To be “substantial”, question of law must be debatable,not previously settled by the law of the land or any bindingprecedent, and must have material bearing on the decision ofthe case and/or the rights of the parties before it, if answeredeither way. To be question of law “involved in the case”, theremust be first, foundation for it laid in the pleadings, and thequestion should emerge from the sustainable findings of fact,arrived at by Courts of facts, and it must be necessary to decidethat question of law for just and proper decision of the case.Where no such question of law, nor even mixed question of lawand fact was urged before the Trial Court or the First AppellateCourt, as in the present case, second appeal cannot beentertained. [Paras 32-34][779-D-F]

Panchagopal Barua v. Vinesh Chandra Goswami AIR1997 SC 1047 – relied on.

1.5 Whether question of law is substantial one andwhether such question is involved in the case or not, would dependon the facts and circumstances of each case. The paramountoverall consideration is the need for striking judicious balancebetween the indispensable obligation to do justice at all stagesand the impelling necessity of avoiding prolongation in the life ofany lis. [Para 35][779-G; 780-A]

Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC179 : [2001] 1 SCR 948 – relied on.

1.6 In Second Appeal, the jurisdiction of the High Courtbeing confined to substantial question of law, finding of fact isnot open to challenge, even if the appreciation of evidence ispalpably erroneous and the finding of fact incorrect. An entirelynew point, raised for the first time, before the High Court, is nota question involved in the case, unless it goes to the root of thematter. [Para 36][780-B]

Ramchandra v. Ramalingam AIR 1963 SC 302 : [1963]3 SCR 604 – relied on.

A1.7 An inference of fact from the recitals or contents of adocument is question of fact, but the legal effect of the terms ofa document is question of law. Construction of document,involving the application of any principle of law, is also questionof law. Therefore, when there is misconstruction of documentor wrong application of principle of law in construing document,Bit gives rise to question of law. The High Court should besatisfied that the case involves substantial question of law, andnot mere question of law. question of law having materialbearing on the decision of the case (that is, question, answer towhich affects the rights of parties to the suit) will be substantialCquestion of law, if it is not covered by any specific provisions oflaw or settled legal principle emerging from binding precedents,and, involves debatable legal issue. substantial question oflaw will also arise in contrary situation, where the legal positionis clear, either on account of express provisions of law or bindingprecedents, but the Court below has decided the matter, eitherDignoring or acting contrary to such legal principle. In the secondtype of cases, the substantial question of law arises not becausethe law is still debatable, but because the decision rendered on amaterial question, violates the settled position of law. The generalrule is, that High Court will not interfere with the concurrentEfindings of the Courts below. But it is not an absolute rule. Someof the well-recognised exceptions are where (i) the courts belowhave ignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts by applyingthe law erroneously; or (iii) the courts have wrongly cast theburden of proof. decision based on no evidence, does not referFonly to cases where there is total dearth of evidence, but alsorefers to case, where the evidence, taken as whole, is notreasonably capable of supporting the finding. [Para 37][780-C-G;781-A-B]

1.8 The condition precedent for entertaining and decidingGa second appeal being the existence of substantial question oflaw, whenever question is framed by the High Court, the HighCourt will have to show that the question is one of law and notjust question of facts, it also has to show that the question is asubstantial question of law. When no substantial question of lawHis formulated, but Second Appeal is decided by the High Court,

the judgment of the High Court is vitiated in law. [Paras 57 and59] [786-D-E; 788-B]

Kondiba Dagadu Kadam v. Savitribai Sopan Gujar(1999) 3 SCC 722 : [1999] 2 SCR 728; BiswanathGhosh v. Gobinda Ghose AIR 2014 SC 152 – reliedon.

1.9 Formulation of substantial question of law is mandatoryand the mere reference to the ground mentioned in Memorandumof Second Appeal can not satisfy the mandate of Section 100 ofthe CPC. [Para 59][788-C]

1.10 In the present case neither of the two questions framedby the High Court is question of law, far less substantialquestion of law. There was no controversy before the High Courtwith regard to interpretation or legal effect of any document norany wrong application of principle of law, in construing adocument, or otherwise, which might have given rise to questionof law. There was no debatable issue before the High Court whichwas not covered by settled principles of law and/or precedents.[Para 38][781-C-D]1.11 It is nobody’s case that the decision rendered by theFirst Appellate Court on any material question, violated anysettled question of law or was vitiated by perversity. It is nobody’scase that the evidence taken as whole does not reasonablysupport the finding of the First Appellate Court, or that the FirstAppellate Court interpreted the evidence on record in an absurdand/or capricious manner. It is also nobody’s case that the FirstAppellate Court arrived at its decision ignoring or acting contraryto any settled legal principle. [Para 39][781-E-F]

1.12 The finding by First Appellate Court is based on cogentand binding documents of title, including the registered deeds ofconveyance by which the respective predecessors-in-interest ofthe Appellant-Defendant and Respondent-Plaintiff had acquiredtitle over the suit premises. There was no erroneous inferencefrom any proved fact. Nor had the burden of proof erroneouslybeen shifted. [Para 40][781-G]

Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. &Mfg. Co. Ltd. AIR 1962 SC 1314 : [1962] Suppl. SCR549 – followed.

AHero Vinoth v. Seshammal (2006) 5 SCC 545 : [2006]2 Suppl. SCR 79 – relied on.

1.13 The conclusion of the First Appellate Court, of theentitlement of the Respondent Plaintiff to declaration in respectof his half share in the suit property does not warrant interferenceBin second appeal. [Para 41][782-B]

2.1 The first question framed by the High Court, that is,the question whether the Lower Court /Appellate Court was rightin refusing the Respondent Plaintiff relief of possession, whenthe Appellate Court had granted mesne profits to the RespondentCPlaintiff, is based on the erroneous factual premises that the FirstAppellate Court had granted mesne profits to the RespondentPlaintiff, which the First Appellate Court had not done. The firstquestion is not at all question of law, far less any substantialquestion of law involved in the case. [Paras 42-43][782-B-D]

D2.2 The High Court has patently erred in its conclusionthat there was contradiction in the findings of the First AppellateCourt, in that the First Appellate Court had declined theRespondent Plaintiff the relief of delivery of possession of thesuit property but had granted the Respondent Plaintiff mesneprofits for three years, prior to the institution of the suit. ‘MesneEprofits’ are profits which person in wrongful possession ofproperty might have derived, but would not include profits dueto improvements. There is no finding of the Appellant-Defendantbeing in wrongful possession of any part of the suit premiseseither by the Trial Court or by the First Appellate Court. TheFFirst Appellate Court has, nowhere used the expression ‘mesneprofit’. What the High Court granted to the Respondent-Plaintiffwas in the nature of reimbursement of profit derived by theAppellant by use, occupation and enjoyment of the Respondent-Plaintiff’s portion of the suit premises and/or in other wordsreimbursement of income from the said portion of the suitGpremises or charges for use, occupation and enjoyment thereof.[Paras 44-45][783-E-G]

3.1 decree of possession does not automatically follow adecree of declaration of title and ownership over property. Where

Plaintiff wants to establish that the Defendant’s originalpossession was permissive, it is for the Plaintiff to prove thisallegation and if he fails to do so, it may be presumed thatpossession was adverse, unless there is evidence to the contrary.The Appellant-Defendant has in his written statement in the suit,denied the title and ownership of the Respondent-Plaintiff to thesuit property. The Appellant-Defendant has asserted that theAppellant-Defendant is the owner of the suit property and hasbeen in possession and in occupation of the suit premises as ownerfrom the very inception. The High Court erred in law in proceedingto allow possession to the Respondent-Plaintiff on the groundthat the Appellant-Defendant had not taken the defence of adversepossession, ignoring the well established principle that thePlaintiff’s claim to reliefs is to be decided on the strength of thePlaintiff’s case and not the weakness, if any, in the opponent’scase. [Paras 46-48][783-H; 784-A-D]

Baba Kartar Singh v. Dayal Das AIR 1939 PC 201 –relied on.

3.2 From the pleadings filed by the Appellant-Defendant, itis patently clear that the Appellant-Defendant claimed the rightof ownership of the suit property on the basis of deed ofconveyance, executed over 75 years ago. The Appellant-Defendant has claimed continuous possession since the year 1966on the strength of deed of release executed by his father. Inother words, the Appellant-Defendant has claimed to be inpossession of the suit premises, as owner, for almost 28 yearsprior to the institution of suit. In the facts and circumstances ofthe case, where the Appellant-Defendant was owner of only aportion of the suit property but has admittedly been in possessionof the entire suit property, and the Appellant-Defendant has, inhis written statement, claimed to be in continuous possessionfor years as owner, the defence of the Appellant in his writtenstatement was, in effect and substance, of adverse possessioneven though ownership by adverse possession had not beenpleaded in so many words. It is, however not necessary for thisCourt to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession ornot. [Paras 49-50][784-D-G]

A3.3 person claiming decree of possession has to establishhis entitlement to get such possession and also establish that hisclaim is not barred by the laws of limitation. He must show thathe had possession before the alleged trespasser got possession.The maxim “possession follows title” is limited in its applicationto property, which having regard to its nature, does not admit toBactual and exclusive occupation, as in the case of open spacesaccessible to all. The presumption that possession must bedeemed to follow title, arises only where there is no definite proofof possession by anyone else. In the present case it is admittedthat the Appellant-Defendant is in possession and not theCRespondent-Plaintiff. [Paras 51-52][784-H; 785-A-B]

3.4 suit for recovery of possession of immovable propertyis governed by the Limitation Act, 1963. Section 3 of the LimitationAct bars the institution of any suit after expiry of the period oflimitation prescribed in the said Act. The Court is obliged toDdismiss suit filed after expiry of the period of limitation, eventhough the plea of limitation may not have been taken in defence.The period of limitation for suits for recovery of immovableproperty is prescribed in Part V of the Schedule to the LimitationAct, 1963, and in particular Articles 64 and 65 thereof.[Paras 53-54][785-B-D]E3.5 In the absence of any whisper in the plaint as to thedate on which the Appellant-Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absenceof any whisper to show that the relief of decree for possessionFwas within limitation, the High Court could not have reversedthe finding of the First Appellate Court, and allowed theRespondent-Plaintiff the relief of recovery of possession, moreso when the Appellant-Defendant had pleaded that he had beenin complete possession of the suit premises, as owner, withabsolute rights, ever since 1966, when his father had executed aGDeed of Release in his favour and/or in other words for over 28years as on the date of institution of the suit. [Para 55][785-G-H;786-A-B]

3.6 person in possession of land in the assumed characterof owner and exercising peaceably the ordinary rights of ownershipH

has perfectly good title against all the world but the rightfulowner and if the rightful owner does not come forward and asserthis right of possession by law, within the period prescribed bythe provisions of the statute of limitation applicable to the case,his right is forever distinguished, and the possessory owneracquires an absolute title. [Para 56][786-C-D]

Peri v. Chrishold (1907) PC 73 – relied on.

4. For the reasons discussed above, the appeals areallowed. The judgment and order of the High Court under appealis set aside to the extent Second Appeal No.558 of 2000 has beenallowed and the judgment and decree of the First Appellate Courtis restored. [Para 62][788-E-F]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2843-2844 of 2010.

From the Judgment and Order dated 06.11.2008 of the MaduraiBench of Madras High Court in S.A. (MD) Nos. 64 and 558 of 2000.

K. K. Mani, Mrs. T. Archana, Advs. for the Appellant.

S. Thananjayan, Adv. for the Respondents.

772SUPREME COURT REPORTS

[2020] 7 S.C.R.

AThe Judgment of the Court was delivered by

INDIRA BANERJEE, J.

1. These appeals are against common judgment and order dated06.11.2008 dismissing the Second Appeal being S.A. (MD) No.64 ofB2000, filed by the Appellant, but allowing the Second Appeal being S.A.(MD) No. 558 of 2000 filed by the Respondent, and setting aside thejudgment and decree dated 17.09.1999 of the First Appellate Court inA.S. No.16/1998, to the extent the First Appellate Court had declinedthe Respondent’s claim to decree of recovery of possession of the suitpremises. The High Court held that the Respondent, being the PlaintiffCin the suit was entitled to declaration of title in respect of half portionof the suit premises, recovery of possession of the said half portion ofthe suit premises and also to recovery of income from the said half ofthe suit property owned by the Respondent and/or charges for use,enjoyment and/or occupation thereof.

D2. The Appellant claims to be the owner of the suit premises,being the building and premises at Door No.4 in R.S. No.120/13 at MelaSenia Street, Aduthurai, Tamil Nadu.

3. According to the Appellant, the Appellant’s father purchasedthe suit premises for valuable consideration, by registered deed of saleEdated 17.2.1938. The Appellant claims to have been in possession of thesuit premises, as owner, from the inception and not as tenant.

4. In 1994, the Respondent, hereinafter referred to as the‘Respondent Plaintiff’, filed suit being O.S. No.169/1994 in the Courtof the District Munsif, Valaingaiman at Kumbhakonam, claimingFdeclaration of ownership of the suit premises, direction on the Appellant,being the Defendant, to deliver possession of the suit premises to theRespondent Plaintiff, decree for payment of Rs.900/- towards arrearsof rent/occupation charges in respect of the suit premises, and decreefor payment of future profits.

G5. In the plaint filed in the said suit, it has been alleged that thesaid premises, which had been purchased by the Respondent Plaintiff’sfather, by registered sale deed dated 17.9.1940, had originally been letout to the Appellant’s father M. Abdul Aziz. After the death ofM. Abdul Aziz, the tenancy was attorned in the name of the Appellant,who agreed to pay rent of Rs.25/- per month, and also the requisiteHPanchayat Tax.

6. Alleging that the Appellant had been trying to set up title inrespect of the said premises, by applying for ‘Patta’ to the TahsildarNatham, and further alleging that the Appellant was in arrears of rent tothe tune of Rs.1225/- up to February, 1994, the Respondent Plaintifffiled the aforesaid suit.

7. In the suit, the Respondent Plaintiff inter alia claimed decreeof Rs.900/- towards rent and/or occupation charges. The Respondent-Plaintiff restricted his claim to arrears of rent and/or occupation chargesto three years, as the claim to rent and/or occupation charges for theearlier period, had become barred by limitation, there being noacknowledgement of liability by the Appellant-Defendant.

8. The Appellant-Defendant filed his written statement in the Suit,denying title and/or ownership of the Respondent Plaintiff to the suitpremises and also contending that the Appellant-Defendant was not atenant. The Appellant-Defendant claimed absolute ownership of the suitpremises, which he claimed had been purchased by his father, by aregistered sale deed dated 17.2.1938, for valuable consideration.

9. The Appellant-Defendant further contended that the suitpremises had all along, been assessed to tax in the name of the Appellant-Defendant’s father, Abdul Aziz, and not in the name of the RespondentPlaintiff or his father. The Appellant-Defendant claimed to have got thesuit premises from his father, under registered Deed of Releasedated 14.3.1966. According to the Appellant-Defendant, he has, since1966, owned and enjoyed the suit premises, with absolute rights.

10. The learned District Munsif (Trial Court) framed the followingthree issues for adjudication in the said suit :-

(i) Whether the Respondent Plaintiff was entitled to declarationof title to the suit property and recovery of possession of thesuit property from the Defendant (the Appellant in this Appeal)

(ii) Whether the Defendant (the Appellant herein) was tenantat the suit property or not;

(iii) To what other relief was the Respondent Plaintiff entitled.

11. By judgment and decree dated 22.1.1998, the Trial Courtdismissed the said suit, holding that the Respondent Plaintiff had failedto prove that the suit property had been purchased by his father. All thethree issues were decided against the Respondent Plaintiff.

12. The Trial Court found that the Respondent Plaintiff had notbeen able to produce any rent agreement, rent receipts or any other oralor documentary evidence to establish that the Appellant was tenant atthe said premises. The Trial Court held that the Respondent Plaintiffwas not entitled to any relief in the said suit.

13. Being aggrieved by the said judgment and decreedated 22.1.1998 passed by the Trial Court, the Respondent Plaintiffappealed to the Subordinate Court at Kumbhakonam, hereinafter referredto as the ‘First Appellate Court’.

14. By judgment and order dated 17.9.1999, the First AppellateCCourt allowed the said appeal, and set aside the said judgment and orderdated 22.1.1998 of the Trial Court , holding that the Respondent Plaintiffwas entitled to declaration of title over half portion of the suit premisesand also to recovery of income, if any, from the said half portion of thesuit premises owned by the Respondent Plaintiff and/or charges for use,occupation and/or enjoyment thereof, but not to recovery of possession.D

15. The claim of the Respondent Plaintiff in the suit was based onthe assertion that one Rajagopala Pattar, who had purchased the suitpremises in Court Auction, had sold the said premises to the RespondentPlaintiff’s father in 1940.

E16. The First Appellate Court analyzed the oral evidence adducedon behalf of the parties, scrutinized and examined the documentaryevidence on record, including in particular the registered deed ofconveyance by which the Respondent Plaintiff’s father had purchasedhis portion of the suit premises from Rajagopala Pattar (Exhibit P1), theregistered documents by which Rajagopala Pattar had acquired the suitFpremises in Court Auction (Exhibits P2 and P3) and the registereddeed of conveyance executed on 17.02.1938 being Exhibit D1 by whichthe Appellant-Defendant’s father M. Abdul Aziz had purchased his portionof the suit premises, examined the extent of the rights of the respectivevendors of the Appellant-Defendant’s father and the Respondent-GPlaintiff’s father and/or their predecessors-in-interest, and concludedthat the Appellant-Defendant’s father had only purchased portion ofthe suit premises, not the entire suit premises, and the other portion hadbeen purchased by the Respondent-Plaintiff’s father. The First AppellateCourt, therefore, held that the Respondent-Plaintiff was entitled to adeclaration in respect of the said portion of the suit premises, purchasedHby his father.

17. The First Appellate Court also took note of the fact that theAppellant-Defendant’s family had been residing in the suit property since1940, and that the Respondent-Plaintiff had not produced any rentagreement or receipts or any tax receipts in respect of the suit premisesto show that the Respondent-Plaintiff or his father or any other familymember had ever paid any taxes in respect of the suit premises.

18. The First Appellate Court concurred with the finding of theTrial Court, that the Respondent-Plaintiff had failed to establish that thesaid premises had been rented out to M. Abdul Aziz father of theAppellant-Defendant. On the other hand, the Appellant had been inpossession of and had been enjoying the suit premises for long time.The First Appellate Court thus found the Appellant liable to pay “backageincome” in respect of the portion of the suit property, of which theRespondent Plaintiff was the owner.

19. The First Appellate Court, in effect, held that the Appellantwas liable to make over to the Respondent Plaintiff, income if any, derivedfrom the said portion of the suit premises which was owned by theRespondent Plaintiff and/or pay charges for use, occupation andenjoyment of the portion of the suit premises owned by the RespondentPlaintiff.

20. The First Appellate Court, however, held that the RespondentPlaintiff was not entitled to recovery of possession since the RespondentPlaintiff had failed to establish landlord-tenant relationship between theRespondent Plaintiff and the Appellant defendant, and that in any casethe Appellant had been in possession of the suit premises for long time.

21. The First Appellate Court passed fair and just order, holdingthat the Respondent-plaintiff, being the owner of portion of the saidpremises, was entitled to declaration of title in respect of the said portionof the suit property owned by him, but not to recovery of possession,since the defendant being the Appellant herein had been enjoying thesuit property for long time. In effect and substance, the First AppellateCourt found that the relief of recovery of possession was barred bydelay and/or in other words the laws of limitation, although this has notclearly been stated in the judgment and order of the First Appellate Court.

22. Being purportedly aggrieved by the reversal of the judgmentand decree of the Trial Court, dismissing the said suit, the Appellant-Defendant filed Second Appeal being S.A. No. 64/2000 in the Madras

AHigh Court, against the judgment of the First Appellate Court. TheRespondent Plaintiff also filed Second Appeal No.558 of 2000 in theMadras High Court, against the same judgment and decree dated17.9.1999, to the extent the Respondent Plaintiff had been denied therelief of delivery of possession in respect of his half share in the suitpremises.B

23. By the judgment and order of the High Court under appealbefore this Court, the Second Appeal No. 64 of 2000 filed by theAppellant-Defendant has been dismissed, the Second Appeal No.559 of2000 filed by the Respondent Plaintiff has been allowed and the judgmentand decree of the First Appellate Court set aside, to the extent theCRespondent Plaintiff had been denied the relief of recovery of possessionin respect of half of the suit premises. The High Court held that theRespondent Plaintiff was entitled to recovery of half of the plaintscheduled property, after identifying the same with the help of anAdvocate Commissioner, at the time of the execution of the decree. InDall other respects, the decree of the First Appellate Court was confirmed.

24. Section 100 of the Civil Procedure Code (CPC) which providesfor Second Appeal, as amended by the Civil Procedure Code(Amendment) Act, 104 of 1976, with effect from 1.2.1977,provides asfollows:-E“100. Second Appeal. - (1) Save as otherwise expressly providedin the body of this Code or by any other law for the time being inforce, an appeal shall lie to the High Court from every decreepassed in appeal by any Court subordinate to the High Court, ifthe High Court is satisfied that the case involves substantialFquestion of law.(2) An appeal may lie under this section from an appellate decreepassed ex parte.

(3) In an appeal under this section, the memorandum of appealshall precisely state the substantial question of law involved in theGappeal.

(4) Where the High Court is satisfied that substantial questionof law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated andthe respondent shall, at the hearing of the appeal, be allowed toHargue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to takeaway or abridge the power of the Court to hear, for reasons to berecorded, the appeal on any other substantial question of law, notformulated by it, if it is satisfied that the case involves suchquestion.]”

25. second appeal, or for that matter, any appeal is not matterof right. The right of appeal is conferred by statute. second appealonly lies on substantial question of law. If statute confers limited rightof appeal, the Court cannot expand the scope of the appeal. It was notopen to the Respondent-Plaintiff to re-agitate facts or to call upon theHigh Court to reanalyze or re-appreciate evidence in Second Appeal.

26. Section 100 of the CPC, as amended, restricts the right ofsecond appeal, to only those cases, where substantial question of lawis involved. The existence of “substantial question of law” is the sinequa non for the exercise of jurisdiction under Section 100 of the CPC.

27. The High Court framed the following Questions of law:-

“1. Whether the Lower Appellate Court is right in refusing therelief of possession especially when the Lower Appellate Courtgranted relief of mesne profits till delivery of possession.?

2. Whether the Lower Appellate Court is right in holding that theplaintiff is entitled to declaration in respect of half of the suitEproperty overlooking the pleadings and the documents of titlein the instant case?”

28. On behalf of the Appellant-Defendant, it has strenuously beencontended, and in our view, with considerable force, that there was noquestion of law involved in either of the second appeals, far less anysubstantial question of law, to warrant inference of the High Court inSecond Appeal No. 64 of 2000.

29. The principles for deciding when question of law becomes asubstantial question of law, have been enunciated by Constitution Benchof this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. &Mfg. Co. Ltd.[1], where this Court held:-

“The proper test for determining whether question of lawraised in the case is substantial would, in our opinion, bewhether it is of general public importance or whether it directly

1 AIR 1962 SC 1314

Aand substantially affects the rights of the parties and if sowhether it is either an open question in the sense that it is notfinally settled by this Court or by the Privy Council or by theFederal Court or is not free from difficulty or calls fordiscussion of alternative views. If the question is settled bythe highest court or the general principles to be applied inBdetermining the question are well settled and there is merequestion of applying those principles or that the plea raisedis palpably absurd the question would not be substantialquestion of law.”

C30. In Hero Vinoth v. Seshammal[2], this Court referred to andrelied upon Chunilal v. Mehta and Sons (supra) and other judgmentsand summarised the tests to find out whether given set of questions oflaw were mere questions of law or substantial questions of law.

31. The relevant paragraphs of the judgment of this Court in HeroVinoth (supra) are set out hereinbelow:-D

“21. The phrase “substantial question of law”, as occurringin the amended Section 100 CPC is not defined in the Code.The word substantial, as qualifying “question of law”, meansof having substance, essential, real, of sound worth, importantor considerable. It is to be understood as something inEcontradistinction with-technical, of no substance orconsequence, or academic merely. However, it is clear thatthe legislature has chosen not to qualify the scope of“substantial question of law” by suffixing the words “ofgeneral importance” as has been done in many otherFprovisions such as Section 109 of the Code or Article 133(1)(a)of the Constitution. The substantial question of law on whicha second appeal shall be heard need not necessarily be asubstantial question of law of general importance. In GuranDitta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172]the phrase substantial question of law as it was employed inGthe last clause of the then existing Section 100 CPC (sinceomitted by the Amendment Act, 1973) came up forconsideration and their Lordships held that it did not mean asubstantial question of general importance but substantial

question of law which was involved in the case. In Sir Chunilalcase [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] theConstitution Bench expressed agreement with the followingview taken by Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)

“When question of law is fairly arguable, where there isroom for difference of opinion on it or where the Court thoughtit necessary to deal with that question at some length anddiscuss alternative views, then the question would be asubstantial question of law. On the other hand if the questionwas practically covered by the decision of the highest courtor if the general principles to be applied in determining thequestion are well settled and the only question was of applyingthose principles to the particular fact of the case it would notbe substantial question of law.”

32. To be “substantial”, question of law must be debatable, notpreviously settled by the law of the land or any binding precedent, andmust have material bearing on the decision of the case and/or therights of the parties before it, if answered either way.

33. To be question of law “involved in the case”, there must befirst, foundation for it laid in the pleadings, and the question shouldemerge from the sustainable findings of fact, arrived at by Courts offacts, and it must be necessary to decide that question of law for justand proper decision of the case.

34. Where no such question of law, nor even mixed question oflaw and fact was urged before the Trial Court or the First AppellateCourt, as in this case, second appeal cannot be entertained, as held bythis Court in Panchagopal Barua v. Vinesh Chandra Goswami[3].

35. Whether question of law is substantial one and whethersuch question is involved in the case or not, would depend on the factsand circumstances of each case. The paramount overall considerationis the need for striking judicious balance between the indispensableobligation to do justice at all stages and the impelling necessity of avoiding

Aprolongation in the life of any lis. This proposition finds support fromSantosh Hazari v. Purushottam Tiwari[4].

36. In Second Appeal, the jurisdiction of the High Court beingconfined to substantial question of law, finding of fact is not open tochallenge in second appeal, even if the appreciation of evidence isBpalpably erroneous and the finding of fact incorrect as held inRamchandra v. Ramalingam[5]. An entirely new point, raised for thefirst time, before the High Court, is not question involved in the case,unless it goes to the root of the matter.

37. The principles relating to Section 100 CPC relevant for thisCcase may be summarised thus :

(i)An inference of fact from the recitals or contents of adocument is question of fact, but the legal effect of theterms of document is question of law. Construction of adocument, involving the application of any principle of law, isDalso question of law. Therefore, when there ismisconstruction of document or wrong application of aprinciple of law in construing document, it gives rise to aquestion of law.

(ii)The High Court should be satisfied that the case involves aEsubstantial question of law, and not mere question of law.A question of law having material bearing on the decisionof the case (that is, question, answer to which affects therights of parties to the suit) will be substantial question oflaw, if it is not covered by any specific provisions of law orsettled legal principle emerging from binding precedents, and,Finvolves debatable legal issue.

(iii) substantial question of law will also arise in contrarysituation, where the legal position is clear, either on accountof express provisions of law or binding precedents, but theCourt below has decided the matter, either ignoring or actingGcontrary to such legal principle. In the second type of cases,the substantial question of law arises not because the law isstill debatable, but because the decision rendered on materialquestion, violates the settled position of law.

4 (2001) 3 SCC 179H5 AIR 1963 SC 302

(iv) The general rule is, that High Court will not interfere withthe concurrent findings of the Courts below. But it is not anabsolute rule. Some of the well-recognised exceptions arewhere (i) the courts below have ignored material evidenceor acted on no evidence; (ii) the courts have drawn wronginferences from proved facts by applying the law erroneously;or (iii) the courts have wrongly cast the burden of proof. Adecision based on no evidence, does not refer only to caseswhere there is total dearth of evidence, but also refers tocase, where the evidence, taken as whole, is not reasonablycapable of supporting the finding.

38. With the greatest of respect to the High Court, neither of thetwo questions framed by the High Court is question of law, far less asubstantial question of law. There was no controversy before the HighCourt with regard to interpretation or legal effect of any document norany wrong application of principle of law, in construing document, orotherwise, which might have given rise to question of law. There wasno debatable issue before the High Court which was not covered bysettled principles of law and/or precedents.

39. It is nobody’s case that the decision rendered by the FirstAppellate Court on any material question, violated any settled questionof law or was vitiated by perversity. It is nobody’s case that the evidencetaken as whole does not reasonably support the finding of the FirstAppellate Court, or that the First Appellate Court interpreted the evidenceon record in an absurd and/or capricious manner. It is also nobody’scase that the First Appellate Court arrived at its decision ignoring oracting contrary to any settled legal principle.

40. The First Appellate Court examined the evidence on record atlength, and arrived at reasoned conclusion, that the Appellant-Defendantwas owner of part of the suit premises and the Respondent-Plaintiffwas owner of the other part of the suit premises. This finding is basedon cogent and binding documents of title, including the registered deedsof conveyance by which the respective predecessors-in-interest of theAppellant-Defendant and Respondent-Plaintiff had acquired title overthe suit premises. There was no erroneous inference from any provedfact. Nor had the burden of proof erroneously been shifted.

41. The second question of law, that is, the question of whetherthe First Appellate Court was right in holding that the plaintiff was entitled

Ato declaration of title in respect of half of the suit property, has, asobserved above, been decided in favour of the Respondent Plaintiff,based on pleadings and evidence. The conclusion of the First AppellateCourt, of the entitlement of the Respondent Plaintiff to declaration inrespect of his half share in the suit property does not warrant interferencein second appeal.B

42. The first question framed by the High Court, that is, the questionof whether the Lower Court /Appellate Court was right in refusing theRespondent Plaintiff relief of possession, when the Appellate Court hadgranted mesne profits to the Respondent Plaintiff, is based on theerroneous factual premises that the First Appellate Court had grantedCmesne profits to the Respondent Plaintiff, which the First Appellate Courthad not done.

43. The first question is not at all question of law, far less anysubstantial question of law involved in the case. The High Court held:-

D“8. Substantial Question of law No. 1:-

After declaring one half right in respect of the plaint scheduleproperty, the learned first appellate Judge has refused therelief for recovery of possession on the ground that thedefendants have produced the documents to show that theyEare in possession and enjoyment of the property (Ex.B9 toB.32). There is no pleadings in the written statement filed bythe defendant that he has prescribed title by way of adversepossession in respect of the entire plaint schedule property.The learned first appellate Judge at one place has rejectedthe relief of delivery of recovery of possession in respect ofFthe suit property has granted mesne profit for three yearsprior to the institution of the suit. Both the above said findingsare diametrically opposite to each other. Once the recoveryof possession is denied, then there is no question of grantingany mesne profit arises. After declaring one half right in theGplaint schedule property in favour of the plaintiff, the learnedappellate Judge ought to have granted recovery of possessionalso in respect of one half share in the plaint scheduleproperty. Both the courts below have concurrently held thatthere is not landlord-tenancy relationship between the plaintiffand the defendant. Under such circumstances, there is noHquestion of mesne profit arises in this case. So far as the

refusal of the relief of recovery of possession in respect ofthe half of the plaint schedule property by the learned firstappellate Judge, warrants interference from this Court.Substantial Question of Law No.1 is answered accordingly.

9. In fine, the Second Appeal No.558 of 2000 is allowed andthe decree and judgment of the learned first appellate Judgein A.S. No.16/1998 on the file of the Court of SubordinateJudge, Kumbakonam is set aside in respect of dismissal ofthe suit for recovery of possession in respect of half of theplaint schedule property. The plaintiff is entitled to recoverhalf of the plaint schedule property after identifying the samewith the help of an Advocate Commission at the time ofexecution of the decree In other respects, the decree of thelearned first appellate Judge in A.S. No.16/1998 on the fileof the Court of Subordinate Judge, Kumbakonam is herebyconfirmed. Second Appeal No. 64 of 2000 is dismissed. Nocosts. Consequently, connected miscellaneous petition isclosed.”

44. The High Court, with greatest of respect, has patently erredin its conclusion that there was contradiction in the findings of the FirstAppellate Court, in that the First Appellate Court had declined theRespondent Plaintiff the relief of delivery of possession of the suit propertybut had granted the Respondent Plaintiff mesne profits for three years,prior to the institution of the suit.

45. ‘Mesne profits’ are profits which person in wrongfulpossession of property might have derived, but would not include profitsdue to improvements. There is no finding of the Appellant-Defendantbeing in wrongful possession of any part of the suit premises either bythe Trial Court or by the First Appellate Court. The First Appellate Courthas, nowhere used the expression ‘mesne profit’. What the High Courtgranted to the Respondent-Plaintiff was in the nature of reimbursementof profit derived by the Appellant by use, occupation and enjoyment ofthe Respondent-Plaintiff’s portion of the suit premises and/or in otherwords reimbursement of income from the said portion of the suit premisesor charges for use, occupation and enjoyment thereof.

46. decree of possession does not automatically follow decreeof declaration of title and ownership over property. It is well settled that,where Plaintiff wants to establish that the Defendant’s original

ABCD

Apossession was permissive, it is for the Plaintiff to prove this allegationand if he fails to do so, it may be presumed that possession was adverse,unless there is evidence to the contrary.

47. The Appellant-Defendant has in his written statement in thesuit, denied the title and ownership of the Respondent-Plaintiff to theBsuit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possessionand in occupation of the suit premises as owner from the very inception.

48. In our considered opinion, the High Court erred in law inproceeding to allow possession to the Respondent-Plaintiff on the groundCthat the Appellant-Defendant had not taken the defence of adversepossession, ignoring the well established principle that the Plaintiff’s claimto reliefs is to be decided on the strength of the Plaintiff’s case and notthe weakness, if any, in the opponent’s case, as propounded by the PrivyCouncil in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC201.D

49. From the pleadings filed by the Appellant-Defendant, it ispatently clear that the Appellant-Defendant claimed the right of ownershipof the suit property on the basis of deed of conveyance, executed over75 years ago. The Appellant-Defendant has claimed continuouspossession since the year 1966 on the strength of deed of releaseEexecuted by his father. In other words, the Appellant-Defendant hasclaimed to be in possession of the suit premises, as owner, for almost 28years prior to the institution of suit.

50. In the facts and circumstances of this case, where theAppellant-Defendant was owner of only portion of the suit propertyFbut has admittedly been in possession of the entire suit property, and theAppellant-Defendant has, in his written statement, claimed to be incontinuous possession for years as owner, the defence of the Appellantin his written statement was, in effect and substance, of adversepossession even though ownership by adverse possession had not beenGpleaded in so many words. It is, however not necessary for this Court toexamine the question of whether the Appellant-Defendant was entitledto claim title by adverse possession or not.

51. person claiming decree of possession has to establish hisentitlement to get such possession and also establish that his claim is notbarred by the laws of limitation. He must show that he had possessionHbefore the alleged trespasser got possession.

52. The maxim “possession follows title” is limited in its applicationto property, which having regard to its nature, does not admit to actualand exclusive occupation, as in the case of open spaces accessible toall. The presumption that possession must be deemed to follow title,arises only where there is no definite proof of possession by anyoneelse. In this case it is admitted that the Appellant-Defendant is in possessionand not the Respondent Plaintiff.

53. suit for recovery of possession of immovable property isgoverned by the Limitation Act, 1963. Section 3 of the Limitation Actbars the institution of any suit after expiry of the period of limitationprescribed in the said Act. The Court is obliged to dismiss suit filedafter expiry of the period of limitation, even though the plea of limitationmay not have been taken in defence.

54. The period of limitation for suits for recovery of immovableproperty is prescribed in Part V of the Schedule to the Limitation Act,1963, and in particular Articles 64 and 65 thereof set out hereinbelow forconvenience:-

55. In the absence of any whisper in the plaint as to the date onwhich the Appellant-Defendant and/or his Predecessor-in-interest tookpossession of the suit property and in the absence of any whisper toshow that the relief of decree for possession was within limitation, the

AHigh Court could not have reversed the finding of the First AppellateCourt, and allowed the Respondent-Plaintiff the relief of recovery ofpossession, more so when the Appellant-Defendant had pleaded that hehad been in complete possession of the suit premises, as owner, withabsolute rights, ever since 1966, when his father had executed Deedof Release in his favour and/or in other words for over 28 years as onBthe date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported in(1907) PC 73, it cannot be disputed that person in possession of land inthe assumed character of owner and exercising peaceably the ordinaryrights of ownership has perfectly good title against all the world but theCrightful owner...and if the rightful owner does not come forward andassert his right of possession by law, within the period prescribed by theprovisions of the statute of limitation applicable to the case, his right isforever distinguished, and the possessory owner acquires an absolutetitle.D

57. The condition precedent for entertaining and deciding secondappeal being the existence of substantial question of law, whenever aquestion is framed by the High Court, the High Court will have to showthat the question is one of law and not just question of facts, it also hasto show that the question is substantial question of law.E58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar[6],this Court held:

“After the amendment second appeal can be filed only if asubstantial question of law is involved in the case. Thememorandum of appeal must precisely state the substantialFquestion of law involved and the High Court is obliged tosatisfy itself regarding the existence of such question. Ifsatisfied, the High Court has to formulate the substantialquestion of law involved in the case. The appeal is requiredto be heard on the question so formulated. However, theGrespondent at the time of the hearing of the appeal has aright to argue that the case in the court did not involve anysubstantial question of law. The proviso to the sectionacknowledges the powers of the High Court to hear the appealon substantial point of law, though not formulated by it

with the object of ensuring that no injustice is done to thelitigant where such question was not formulated at the timeof admission either by mistake or by inadvertence”

“It has been noticed time and again that without insistingfor the statement of such substantial question of law in thememorandum of appeal and formulating the same at the timeof admission, the High Courts have been issuing notices andgenerally deciding the second appeals without adhering tothe procedure prescribed under Section 100 of the Code ofCivil Procedure. It has further been found in number ofcases that no efforts are made to distinguish between questionof law and substantial question of law. In exercise of thepowers under this section the findings of fact of the firstappellate court are found to have been disturbed. It has to bekept in mind that the right of appeal is neither natural noran inherent right attached to the litigation. Being substantivestatutory right, it has to be regulated in accordance with lawin force at the relevant time. The conditions mentioned in thesection must be strictly fulfilled before second appeal canbe maintained and no court has the power to add to or enlargethose grounds. The second appeal cannot be decided onmerely equitable grounds. The concurrent findings of factshowsoever erroneous cannot be disturbed by the High Courtin exercise of the powers under this section. The substantialquestion of law has to be distinguished from substantialquestion of fact.”

“If the question of law termed as substantial question standsalready decided by larger Bench of the High Courtconcerned or by the Privy Council or by the Federal Courtor by the Supreme Court, its merely wrong application on thefacts of the case would not be termed to be substantialquestion of law. Where point of law has not been pleadedor is found to be arising between the parties in the absenceof any factual format, litigant should not be allowed toraise that question as substantial question of law in secondappeal. The mere appreciation of the facts, the documentaryevidence or the meaning of entries and the contents of thedocument cannot be held to be raising substantial question

ABC

Aof law. But where it is found that the first appellate court hasassumed jurisdiction which did not vest in it, the same can beadjudicated in the second appeal, treating it as substantialquestion of law. Where the first appellate court is shown tohave exercised its discretion in judicial manner, it cannotbe termed to be an error either of law or of procedure requiringBinterference in second appeal.”

59. When no substantial question of law is formulated, but SecondAppeal is decided by the High Court, the judgment of the High Court isvitiated in law, as held by this Court in Biswanath Ghosh v. GobindaGhose[7]. Formulation of substantial question of law is mandatory and theCmere reference to the ground mentioned in Memorandum of SecondAppeal can not satisfy the mandate of Section 100 of the CPC.

60. The judgment and order of the High Court under appeal doesnot discuss or decide any question of law involved in the case, not tospeak of substantial question of law.

61. Just as this Court has time and again deprecated the practiceof dismissing second appeal with non-speaking order only recordingthat the case did not involve any substantial question of law, the HighCourt cannot also allow second appeal, without discussing the questionof law, which the High Court has done.

62. For the reasons discussed above, the appeals are allowed.The judgment and order of the High Court under appeal is set aside tothe extent Second Appeal No.558 of 2000 has been allowed and thejudgment and decree of the First Appellate Court is restored.

Kalpana K. Tripathy

Appeals allowed.

H7 AIR 2014 SC 152