9911796707
TMI Blog2001 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant, 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. - C.A. 1117 OF 2001 - - - Dated:- 8-2-2001 - Judge(s) : A. S. ANAND., R. C. LAHOTI., BRIJESH KUMAR JUDGMENT The judgment of the court was delivered by R. C. LAHOTI J.-Leave granted. On March 4, 1983, the plaintiff-appellant filed a suit for declaration of title and recovery of possession and issuance of permanent preventive injunction restraining the defendant from interfering with the possession of the plaintiff over the suit property described as khasra No. 41/1, area 1.09 acres (0.441 hectares) situated in Village Patharia, District Damoh. According to the plaintiff, the defendant had illegally dispossessed the plaintiff from his possession over 110 x 80 ft. area of land out of the suit property on August 20, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the plaintiff-appellant setting out the substantial questions of law which in his submission arose in the case and on which the High Court ought to have heard the appeal. What is a substantial question of law involved in the case ? Section 100 of the Code of Civil Procedure, 1908 (hereinafter, "the Code", for short) as substituted by the Code of Civil Procedure Amendment Act, 1976 (104 of 1976) with effect from February 1, 1977, reads as under "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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. Even under the old section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However, the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with the second appeals, the courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the courts below. This was creating contusion in the minds of the public as to the legitimate scope of second appeal under section 100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial question of law. On the other band, 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 o-f the case it would not be a substantial question of law," and laid down the fallowing 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 genera] 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is therein open for rehearing both on questions of facts and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court ; an expression of general agreement with the reasons given by the court, the decision of which is under appeal, would ordinarily suffice (see Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, 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 findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
