2001 (2) TMI 131 - SC - Income Tax

Whether a question of law raised in the case is a substantial one? Held that - Reverting to the facts of the case at hand, prima facie we find the first appellate court did not discharge the duty cast on it as a court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his defaults. That was not done. In cur opinion, the following substantial question of law does arise as involved in the case and is worth being heard by the High Court Whether on the pleadings and the material brought on record by the defendant, the first appellate court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial court ? The appeal is allowed. The case is remitted back to the High Court for hearing and deciding the second appeal afresh.

Summary

Issues Involved:
1. Declaration of title and recovery of possession.
2. Issuance of permanent preventive injunction.
3. Plea of adverse possession by the defendant.
4. Limitation period for filing the suit.
5. Substantial question of law in the second appeal.

Detailed Analysis:

1. Declaration of Title and Recovery of Possession:
The plaintiff-appellant filed a suit on March 4, 1983, seeking a declaration of title, recovery of possession, and a permanent injunction against the defendant regarding the suit property described as khasra No. 41/1, area 1.09 acres, situated in Village Patharia, District Damoh. The plaintiff alleged that the defendant had illegally dispossessed him from a portion of the property on August 20, 1981. The trial court found that the ownership of the suit property vested in the plaintiff and that the defendant had forcibly occupied the disputed area around 1980-81.

2. Issuance of Permanent Preventive Injunction:
The plaintiff sought a permanent preventive injunction to restrain the defendant from interfering with his possession of the suit property. The trial court decreed the suit in its entirety, including the issuance of the injunction. However, the first appellate court reversed this finding, stating that the plaintiff did not take any steps to dispossess the defendant and that the claim of forcible occupation on August 20, 1981, was untenable.

3. Plea of Adverse Possession by the Defendant:
The defendant claimed to have been in possession of the suit property since 1940-41 and raised a plea of adverse possession. The trial court rejected this plea, finding the defendant's evidence conflicting and unworthy of reliance. However, the first appellate court reversed this finding, holding that the defendant had made out a case of adverse possession.

4. Limitation Period for Filing the Suit:
The defendant argued that the suit was barred by limitation, as it was filed more than 12 years after the plaintiff's dispossession. The trial court held that the suit was within the limitation period. The first appellate court, however, found that the suit was barred by time under Article 65 of the Limitation Act, 1963, due to the defendant's adverse possession.

5. Substantial Question of Law in the Second Appeal:
The High Court dismissed the second appeal in limine, stating that the matter was concluded by findings of fact and no substantial question of law arose. The Supreme Court noted that Section 100 of the Code of Civil Procedure, 1908, restricts the jurisdiction of the High Court to hear a second appeal only on a "substantial question of law." The Supreme Court found that the High Court failed to formulate the substantial question of law and that the memorandum of the second appeal suffered from a serious infirmity. The Supreme Court framed the following substantial question of law: "Whether on the pleadings and the material brought on record by the defendant, the first appellate court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial court?"

Conclusion:
The Supreme Court allowed the appeal and remitted the case back to the High Court for hearing and deciding the second appeal afresh. The High Court was directed to decide the second appeal uninfluenced by the observations made by the Supreme Court, which were solely to support the opinion that the appeal did not merit a summary dismissal. The appeal was disposed of with no order as to costs.