Gujarat High Court
Vaghela Dhulubha Narayanji vs Kankuben Bhojabhai Kod on 20 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 488 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 488 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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VAGHELA DHULUBHA NARAYANJI
Versus
KANKUBEN BHOJABHAI KOD & ORS.
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Appearance:
MR J G VAGHELA(3971) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/11/2025
ORAL JUDGMENT
1. This second appeal under Section 100 of the Code of Civil
Procedure, 1908 (for short 'the Code') challenges the judgment
and decree passed in Regular Civil Appeal No.9 of 2023 by the
3rd Additional District Judge, Kachchh at Bhachau, by which, the
learned Additional District Judge dismissed the first appeal and
confirmed the judgment and decree passed in Regular Civil
Suit No.18 of 2011 by the Additional Civil Judge, Rapar
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(Kachchh) whereby, suit of the plaintiff was partly allowed and
the counter claim preferred by the defendant under Order 8,
Rule 6(A) of the Code was rejected. By the judgment and
decree, learned Trial Court ordered that the defendants were
restrained by issuing a permanent injunction from interfering
with the plaintiff's possession over the land of Survey No.165/1
and Survey No.166 of Mouje : Momaymora, Taluka : Rapar,
District : Kachchh ('suit property') without following due
process of law. Further, the permanent injunction was issued
to the effect that the defendants have no right whatsoever to
sell or transfer the suit property without following due process
of law.
2. The factual aspects leading to filing of the present second
appeal are as under:
2.1 The suit property, particulars of which are stated in the
plaint, is in independent possession of the plaintiffs. By
Promulgation Entry No.93 (19.09.1971), the father of the
plaintiff obtained the possession of the suit property on
execution of usufructuary mortgage from the grandfather of
the defendants. The father of the plaintiff died 12 years back.
Upon inheritance, the plaintiff received possession of the suit
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property. The plaintiff apprehend that since he is in legal and
peaceful possession of the suit property, the defendants have
no right whatsoever to seek possession of the suit property
without following due process of law. The plaintiff further
apprehends that the defendants, in connivance with one Mr.
P.N. Sureva, an employee of E-dhara, may nullify the plaintiff's
possession over the disputed property, without redeeming
usufructuary mortgage. Some revenue proceedings took place
between the parties which ultimately led the plaintiff to file the
Civil Suit seeking the relief of permanent injunction restraining
the defendants from interfering with the plaintiff's possession
over the suit property and further restrain the defendants from
selling the suit property to any third party.
2.2 The process was served upon the defendants. By Exh.10,
the defendants have filed the written statement. The facts
pleaded by the plaintiff have been denied in the written
statement. It is further claimed that the grandfather of the
defendants had given the suit property under usufructuary
mortgage to the father of the plaintiff therefore, the
defendants are the owners of the suit property and the plaintiff
is only a tenant. No sale deed was ever executed. In the year
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1988, part redemption took place and some of the land was
resumed from the deceased - Nathabhai Panchabhai and since
then, the defendants are in possession of the land bearing
Survey No.165/1 admeasuring 1 Acre 2-10 Guntha.
2.3 The counter claim under Order 8 Rule 6A of the CPC was
preferred for the redemption of usufructuary mortgage qua the
land of Survey No.166. Reply to the counter-claim has been
filed at Exh.14 by the plaintiff denying that the defendants are
not the legal heirs of Ratansangji Ramsangji. The defendants
were put to strict proof of the said facts. It is further stated
that the defendants are required to prove that the land of
Survey No.166 admeasuring Acre 4-30 Gunthas has been
handed over to the ancestor of the plaintiff by way of
usufructuary mortgage.
2.4 In the background of the rival claim, the learned Trial
Court framed the issues at Exh.24. Both the side led evidence
which ultimately resulted as plaintiff's suit was decreed,
defendants' counter claim was rejected on the ground of
limitation.
2.5 Being aggrieved, Regular Civil Appeal No.9 of 2023 was
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preferred before the 3rd Additional District Judge, Kachchh at
Bhachau, by the defendants. Despite there being two decrees,
the appellant chose to prefer a single appeal, which was
dismissed by the learned Appellate Court.
2.6 Hence, this Second Appeal under Section 100 of the Code
inter alia treating the following questions of law as substantial
questions of law:
"(A) Whether the mortgagor's right to redeem mortgaged property
gets extinguished after a period of thirty years (30) years, in case of an
Usufructuary mortgage. The learned trial Court and the first appellate
Court has committed substantial error of law in interpreting the
judgment of the Hon'ble Supreme Court in the case of Singh Ram (D)
Thr, L. Rs V. Sheo Ram and Ors. (2014 AIR SCW 4854).
(B) Whether a Civil Suit for permanent injunction simpliciter, without
a prayer for a declaration, is maintainable when there are disputed
questions of facts and the possession and title of the plaintiff are
disputed. The learned first appellate Court has committed a substantial
error of law in interpreting the judgement in case of Anathula
Sudhakar V. P.Buchi Reddy (2008) 4 SCC 594."
3. Mr. J.G. Vaghela, learned advocate appearing for the
appellant in order to admit this second appeal, referred to the
aforesaid substantial questions of law and submitted that the
learned Trial Court though believed transaction between the
party be a usufructuary mortgage but declined to grant the
decree in the counter claim on the ground that the counter
claim of the defendants is barred by principles of limitation. He
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would further submit that the learned Trial Court believed
Article 61(A) of the Limitation Act to be the limitation provision
for filing the redemption suit. However, the finding of the
learned Trial Court is contrary to the provisions of Section 60
and Section 62 of the Transfer of Property Act, 1882 ('TP Act').
He would further submit that for redemption of usufructuary
mortgage, there is no limitation. As per Section 62 of TP Act,
the usufructuary mortgage will continue till mortgage money is
paid. He would further submit that mere expiry of 30 years
from the date of mortgage does not extinguishes the right of
mortgagor under Section 62 of the Limitation Act. To buttress
the contention, he referred to the judgment in case of Singh
Ram (D) Through. L.Rs. V. Sheo Ram and Ors., reported in
2014 AIR SCW 4854. He would further submit that the
learned Trial Court committed serious error in reading the
provision of law, which is erroneously confirmed by the learned
Appellate Court, and in that facts and circumstances, the
judgment rendered by the learned Trial Court and confirmed
by the learned Appellate Court suffers from serious illegality.
Thus, he submitted that the substantial questions of law
framed by the appellant exist in the matter. He would further
submit that the plaintiff without seeking any declaration, filed
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the suit for permanent injunction simplicitor. The title of the
plaintiff was seriously disputed and therefore, the plaintiff was
required to seek the relief of declaration. He would further
submit that without seeking the relief of declaration, the suit
for permanent injunction simplicitor is not maintainable.
However, learned Court below erred in appreciating this
aspects.
In view of the above submissions, he would submit that
the second appeal be admitted on aforesaid substantial
question of law.
4. The plaintiff in Suit claims that he is in possession of the
suit property and the defendants have no right to disturb his
possession over the suit property without following due
process of law as plaintiff's ancestor in capacity of mortgagee
holds possession of the suit property. As against that, the
defendants filed the counter claim under Order 8, Rule 6(A) of
the Code claiming that since the land of survey No.166 is given
under usufructuary mortgage, defendants being mortgagor is
entitled to redeem by paying mortgage money. It was further a
case of the defendants that the expiry of period of 30 years
from the date of mortgage would not apply.
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4.1 In reply to counter claim, the plaintiff put the issue raised
by the defendants subject to strict proof as to whether the
forefather of the defendants have entered into usufructuary
mortgage and mortgaged the land of survey No.166 to the
ancestor of the plaintiff.
5. The learned Trial Court framed the following issues at
Exh.24: (true translation)
-:: Issues ::-
1. Whether the Plaintiff proves that, as per Revenue Entry No. 93
of Promulgation Entry No. 93 of the record, the Plaintiff's father held
occupancy rights with the right to redeem by paying the amount to the
Defendants' grandfather?
2. Whether the Plaintiff proves that the Defendants intend to
forcefully snatch away the possession of the suit property without
following the due process of law?
3. Whether the Defendant proves that the Plaintiff's suit is barred
by the provisions of the Limitation Act?
3(A). Whether the Defendant proves that they are entitled to obtain
possession of the land bearing Survey No. 166, admeasuring 4 Acres
and 36 Gunthas, from the Plaintiff by paying the usufractuary
mortgage amount?
4. Whether the Plaintiff is entitled to get the relief as prayed for?
5. What Order and Decree?"
6. Issue Nos.1, 2 and 4 are answered in "Affirmative". Issue
No.3 and 3A are answered in "Negative". Ultimately, the
plaintiff's Suit is decreed in his favour issuing permanent
injunction as prayed however, defendants' counter claim was
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dismissed on the ground of limitation. While decreeing the
plaintiff's suit, the learned Trial Court believed that the
usufructuary mortgage at Exh.69 is a registered document and
it establish plaintiff's possession over suit property under
mortgage deed being legal and cannot be disturbed without
due process of law, however, redemption of usufructuary
mortgage qua land of survey No.165/1 was not believed as it is
claimed upon unregistered document. The defendants in order
to prove the Exh.93, the document produced to prove
redemption of mortgage examined witness at this document,
however, the defendants failed to prove the content thereof.
According to the learned Trial Court, witness deposed in regard
of only making signature on the document, except that, they
have not deposed anything more. Therefore, learned Trial
Court believed that no redemption for land of Survey No.165/1
took place. Plaintiffs are even in possession of the land bearing
Survey No.165/1, as mortgagee. Plaintiff's possession over
land of Survey No.166 is admitted by defendant as he has
asked for redemption of usufructuary mortgage by way of
counter claim.
7. Apposite to note that, the plaintiff's suit was limited to
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seeking permanent injunction on the basis of his possession
over the suit property. Plaintiff did not claim that he is a title
holder but, claim that he is in possession of the suit property
pursuant to the document namely, the usufructuary mortgage
executed in favour of the forefather of the plaintiff. It was the
suit for the injunction. The defendants filed the counter claim
under Order 8, Rule 6(A) of the Code claiming the redemption
of usufructuary mortgage only qua the land of Survey No.166.
The learned Trial Court dismissed the counter claim on the
ground that it is barred by law of limitation.
8. At this juncture, I may refer to Order 8, Rule 6(A) of the
Code, which reads as under:
"[6A. Counter-claim by defendant.-(1) A defendant in a suit may, in
addition to his right of pleading a set-off under rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the defendant against the
plaintiff either before or after the filing of the suit but before the
defendant has delivered his defence or before the time limited for
delivering his defence has expired, whether such counter-claim is in
the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits
of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as
to enable the Court to pronounce a final judgment in the same suit,
both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer
to the counter-claim of the defendant within such period as may be
fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the
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rules applicable to plaints.]"
9. The counter claim is maintainable against the plaintiff,
any right or claim in respect of the cause of action accruing to
the defendants against the plaintiff either before or after the
filing of the suit but before the time limited for delivery of
defence has expired. The counter-claim however, as such has
certain limits. The counter claim shall not exceed the
pecuniary limits of the jurisdiction of the Court. Ordinarily, it
should arise from the cause of action pleaded by the plaintiff.
10. At the cost of repetition, it is to be noticed that the
counter claim has been rejected by the learned Trial Court by
answering the issue No.3A in negative. Plaintiff's Suit is
allowed. Thus, two separate decrees comes into existence. The
defendants carries the judgment and decree passed by the
learned Trial Court to First Appeal under Order 41 Rule 1 of the
Code. The defendants have filed single appeal challenging two
separate decrees. The learned Appellate Court also decided
the First Appeal on the basis of judgment in case of Anathula
Sudhakar Vs. P.Buchi Reddy, (2008) 4 SCC 594 whereby,
the Hon'ble Supreme Court held that if the plaintiff is in lawful
or peaceful possession of the property and such possession is
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interfered or threatened by the defendants, a suit for
permanent injunction simpliciter will lie. A person has a right to
protect his possession against any person who does not prove
a better title by seeking a prohibitory injunction. The learned
Appellate Court re-evaluate the entire issue based upon the
possession of the plaintiff and decided the same accordingly,
which indicates that the argument of counter claim and
redemption of usufructuary mortgage was not advanced
before the learned Appellate Court and the learned Appellate
Court had no occasion to decide this issue. The learned
Appellate Court in paragraph 18 of the judgment referred that
since original mortgage deed is registered, the deed of
redemption must also to be registered. Thus, the defendants
cannot claim any right, title and interest until a proper
redemption of the usufructuary mortgage is proved.
11. In a Civil Suit, the learned Additional Civil Judge, Rapar,
passed two different and distinct decrees; (i) partly allowing
the suit of the plaintiff and (ii) denying the counter claim of the
defendants. Only singular appeal has been preferred by the
appellant - defendants. The Appeal memo does not specify
that which decree is challenged, whether a decree passed by
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the learned Trial Court in favour of the plaintiff or against the
dismissal of the defendants' counter claim. But, from the body
and reasoning of the judgment and decree passed by the
learned Appellate Court, it appears that the issue of possession
of the plaintiff was raised and discussed by the learned
Appellate Court.
12. In case of Darayas Bamanshah Medhora Vs.
Nariman Bamansha Medhora, reported in 2002 (1) GLR
474, the Hon'ble Division Bench of this Court addressed the
issue that where two counter suits in respect of the same
subject matter are filed and decided by a common judgment
and the appeal is filed only against one decree and no appeal
is filed in the other matter, whether a bar of res-judicata would
apply and whether the appeal would be incompetent. Relevant
paragraphs extracted as under:
"7. Apart from the question as to whether one appeal can lie from
two decrees or not, which question being the centre of the controversy
will be considered hereinafter, certain factual aspects in the context of
this submission require to be noted and dealt with. The fact that the
memo of appeal contains grounds arising from the common judgement
and findings from the common issues in the two suits is irrelevant.
Whether the appellant has paid court fees on a composite valuation, as
if they were two appeals, and/or on a composite valuation of the two
suits, is again irrelevant. The fact remains that ground (vv) as
contained in the memo of appeal refers to only one decree as being the
subject matter of challenge. Similarly, the decree which forms the basis
of challenge in the appeal is only one, as can be seen from the decree
which is annexed to the memo of appeal. This decree is at Exh.146 in
Special Civil Suit No.700/2000. No other decree is annexed to the
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memo of appeal. Therefore, no matter what grounds may be urged in
support of the appeal, whether it is treated as an appeal from one
decree or an appeal from both the decrees, the fact remains that this
appeal cannot be treated factually to be an appeal challenging both
the decrees. This is irrespective of the question of law as to whether
one appeal could lie and/or be maintainable when the appeal
challenges only one of the decrees arising from the common
judgement.
8. Learned counsel for the appellant has sought to place reliance
upon numerous decisions, including decisions of various High Courts, in
support of his contention.
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9. In our opinion, it is not necessary to examine seriatim each of
these decisions inasmuch as they have been considered, evaluated,
discussed, noted, distinguished, approved or dissented from, by
several subsequent decisions of the Supreme Court which we shall
discuss hereinafter.
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10. However, we may note only in brief the distinction, and the
departure from the earlier point of view, created by subsequent
decisions of the Supreme Court, from the aforesaid decisions. The
controversy considered by the aforesaid decisions has been examined
mainly on whether the principles of res judicata as enshrined in section
11 of CPC would be applicable in such cases. It appears to us that the
line of reasoning first enunciated by the Full Bench in the case of Mt.
Lachhmi (AIR 1927 Lahore 289) and adopted by different High Courts in
India subsequently, appear to flow from a generalised principle laid
down by the Full Bench to the effect that the principle of res judicata
which created a bar to subsequent agitation of the same issue, is
created by the judgement and not by the decree.
10.1 In our opinion, it would be a loose generalisation to hold that the
bar of res judicata is created only by the judgement and not by the
decree. This generalisation would hold the field only if the question
under consideration was in respect of only, or merely, "issue estoppel",
and not in respect of a common judgement resulting in two decrees.
10.2 In this context we cannot overlook the fact that an appeal under
section 96, CPC lies only from a decree and not from a judgement. It
cannot be overlooked that these are not merely loose concepts, but
have a very specific meaning and connotation inasmuch as each of
these has been independantly defined under the CPC.
10.3 Section 2(9) defines a "judgement" as the statement given by
the Judge on the grounds of a decree or order. As against this, a
"decree" is defined by section 2(2) of CPC as the formal expression of
an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be either
preliminary or final. It is not necessary, in our opinion, to refer to
numerous authorities on the distinction between these two phrases and
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concepts, as used in law. The short substance of the distinction is that
the judgement constitutes the opinion of the Court, wherein it
encompasses the pleadings of the parties, the issues, the evidence led
by the respective parties, the interplay of different pieces of evidence
upon each other, the conclusions drawn and the findings of fact
recorded by the Court. In short, the judgement reflects merely the
justification of the court for passing the decree in question. On the
other hand, the decree is the crystallisation of the rights in controversy
between the parties, as declared by the court, on the basis of the
judgement. Consequently, in our opinion, a judgement and a decree
are not phrases or concepts which can be used in the alternative to
each other, neither do the two concepts overlap each other. In our
opinion, it is precisely for this reason that section 96 of CPC
contemplates an appeal only from a decree, and by necessary
implication, not from a judgement. Furthermore, when the rights of a
party crystallised in a decree are sought to be enforced by due process
of law, by execution proceedings under Order 21, CPC, such proceeding
would lie only on the basis of a decree, and not on the basis of a
judgement.
10.4 The entire controversy in law as to whether a single appeal
would lie from one of the decrees arising from a common judgement
has been considered in the various decisions aforesaid, only by testing
against and applying the principle of res judicata. In the context of
these decisions it is necessary to bear in mind that a reference to the
common judgement, and consequently a reference to a supposed
judgement resulting in one of the decrees, is only necessary to
ascertain whether "the question substantially in issue" was common in
both the suits.
11. While considering the aforesaid decisions, which, as aforesaid,
have also been considered by the subsequent decisions of the
Supreme Court, it also requires to be kept in mind that the principle of
res judicata is not the only principle upon which this legal controversy
can be reflected upon. Another principle which, in our opinion, would
have a bearing on this controversy is the principle of acquiescence
and/or estoppel. This principle would also apply to the controversy in
issue, inasmuch as it could be urged that when only one decree is
challenged in the singular appeal, the other decree which is not the
subject matter in appeal, is a decree which is acquiesced to. Ultimately
it makes no difference whether the same set of reasons and the same
set of findings justify both the decrees. This may perhaps appear to be
similar to calling a glass half full or also calling it half empty. It may be
that such a description carries different concepts, although the factual
result is the same. The distinction in law lies in the real and substantive
distinction between an appeal from a judgement and an appeal from a
decree. Once this distinction is established and kept in mind, it
becomes a simpler exercise to appreciate the view expressed by the
Supreme Court in the decisions hereinafter discussed.
12. In the case of Sheodan Singh Vs. Daryao Kunwar, reported in
AIR 1966 SC 1332, the Supreme Court specifically found that where
there were two suits having common issues, and the suits were
decided by the trial court on merits which resulted in two appeals
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therefrom, and one of the appeals was dismissed (although not on
merits), the decision of the appeal court will be res judicata. It is
pertinent to note that in the said decision, the Full Bench decision in
the case of Mt. Lachhmi (supra) has been specifically considered, as
also the supreme Court decision in the case of Narhari Vs. Shanker,
reported in AIR 1953 SC 419.
12.1 The aforesaid decision of the Supreme Court viz. Sheodan
Singh, has been referred to, considered and relied upon by the
Supreme Court in its subsequent decision in the case of Premier Tyres
Limited V. The Kerala State Road Transport Corporation, reported in
AIR 1993 SC 1201. This decision also takes into consideration the
earlier decision of the Supreme Court in the case of Ramagya Prasad
Vs. Murli Prasad, reported in AIR 1974 SC 1320, and distinguishes the
earlier decision of the Supreme Court in the case of Narhari Vs.
Shanker, reported in AIR 1953 SC 419.
12.2 In the said decision (viz. Premier Tyres Ltd. (supra) there were
two suits which were connected and tried together inasmuch as the
nature of the dispute in both the suits were same. The issues framed
were also common. In this case, the appellant did not file any appeal
against the dismissal of the suit for part of its claim, but an appeal was
filed against the decree granted in favour of the respondent in the
appeal in the suit filed by it. The High Court of Kerala in its decision
dismissed the appeal of the appellant as barred by res judicata since
the finding recorded in the connected suit had become final inasmuch
as the same was not challenged in the appeal. In the appeal before the
Supreme Court it was urged, as is urged in the appeal before us, that
both the suits were connected and decided by common order, and
therefore the issues in neither suit can be said to have been decided in
a former suit, and consequently the basic ingredient of section 11 of
CPC would not be satisfied. This submission was sought to be
supported by the earlier decision of the Supreme Court in the case of
Narhari Vs. Shanker (supra). However, the Supreme Court observed
that the decision in the case of Narhari Vs. Shanker (supra) has been
distinguished in the case of Sheodan Singh (supra), inasmuch as it
related to only one suit and therefore the observations extracted
therefrom were not relevant in a case where more than one suit was
decided by a common order. The Supreme Court then observed that in
the present case before it, there were different suits from which
different appeals had to be filed. (emphasis supplied). In paragraph 4
of the said decision the Supreme Court therefore concluded that where
an appeal arising out of connected suits is dismissed on merits, the
other cannot be heard and has to be dismissed.
12.3 The question which was also considered by the Supreme Court
was as to what happens where no appeal is filed, as in the case before
the Supreme Court from the decree in the connected suit. The
Supreme Court specifically found that the effect of non-filing of an
appeal against a judgement or decree is that it becomes final. This
finality can be taken away only in accordance with law. The same
consequences follow when a judgement or decree in a connected suit
is not appealed from. These observations of the Supreme Court, which
were further fortified by the findings recorded by it in para 6 of the said
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decision, are as under:
"Thus, the finality of finding recorded in the connected suit, due
to non filing appeal, precluded the Court from proceeding with
appeal in other suit."
12.4 In the context of the observations made by the Supreme Court
in the said decision, and particularly the observations in paras 4 and 6
of the said decision, we are also of the view that the Supreme Court
has, to some extent, departed from the earlier principles of relying and
referring to only the principles of res judicata, by also considering and
incorporating the principles of acquiescence and issue estoppel. As
discussed hereinabove, the principle of acquiescence and issue
estoppel are also relevant and can be applied to the consideration of
examining the legality and validity of the contentions raised for and
against the maintainability of such an appeal.
13. The decision of the Supreme Court in the case of Ram Prakash
Vs. Charan Kaur, reported in AIR 1997 SC 3760 is also relevant and
pertinent.
13.1 This decision is based on facts which are identical to the facts
before us. The Supreme Court specifically held that where the findings
in one suit had been allowed to become final in the absence of an
appeal, an appeal filed against the findings in another suit would be
barred by principles of res judicata.
13.2 In para 2 of the said decision the Supreme Court observed as
under:
"2. It would be obvious that since the claims of the petitioner
and the respondents have arisen from the same cause of action
and the finding of the appellate Court that damages had
accrued to the respondents due to misfeasance or malfeasance
having been allowed to become final, the decree which is
subject matter of the special leave petition cannot be assailed.
The self-same question was directly in issue and was the subject
matter of both the suits. The same having been allowed to
become final, it cannot be gone into since the same had
attained finality, the petitioner having not filed any appeal
against the appeal dismissing the suit. In view of this situation,
the High Court was right in concluding that the decree of
dismissal of the suit against the petitioner would operate as res
judicata under section 11, CPC in the appeal against which the
petitioner has filed the second appeal."
13.3 We may also observe in passing that in the present decision the
Supreme Court has applied not only the principles of res judicata, but
has also decided the facts from the alternate perspective, by applying
the principles of acquiescence and issue estoppel.
13. In view of the above and applying the ratio to the case on
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hand, the Second Appeal is not maintainable. In the first
appeal challenge is made to one decree leaving other decree
to be perfected. First appeal can be filed against the decree
and not against multiple decrees. As observed herein above,
the appellant has filed only one appeal against one of the two
decrees passed in Civil Suit, one in favour of the plaintiff and
one against defendants on dismissal of counter claim, hence,
one decree became perfect and attained finality, on such the
decree which became final operates as res-judicata against the
other decree. Thus this legal impediment expanses
inadmissibility of second appeal.
13.1 The scope of second appeal under Section 100 of the CPC
against concurrent finding of facts is limited. This Court in
second appeal cannot address and evaluate evidence again as
sitting in third trial. The appellant to demonstrate substantial
questions of law.
14. In Narayananan Rajendran v/s. Lekshmy Sarojini
[(2009) 5 SCC 264], the Hon'ble Apex Court has examined
scope of Second Appeal prior to amendment and post
amendment in Section 100. After referring catena of
judgments, in para 38 to 42, the Hon'ble Apex Court has held
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as under :-
"38.... "66.The primary cause of the accumulation of arrears of second
appeal in the High Court is the laxity with which second appeals are
admitted without serious scrutiny of the provisions of Section 100
C.P.C. It is the bounden duty of the High Court to entertain second
appeal within the ambit and scope of Section 100 C.P.C.
67. The question which is often asked is why should a litigant
have the right of two appeals even on questions of law? The
answer to this query is that in every State there are number of
District Courts and courts in the District cannot be final arbiters
on questions of law. If the law is to be uniformly interpreted and
applied, questions of law must be decided by the highest Court
in the State whose decisions are binding on all subordinate
courts."
Rationale behind permitting second appeal on question of law:
39......"68. The rationale behind allowing a second appeal on a question
of law is, that there ought to be some tribunal having a jurisdiction that
will enable it to maintain, and, where necessary, re-establish,
uniformity throughout the State on important legal issues, so that
within the area of the State, the law, in so far as it is not enacted law,
should be laid down, or capable of being laid down, by one court whose
rulings will be binding on all courts, tribunals and authorities within the
area over which it has jurisdiction. This is implicit in any legal system
where the higher courts have authority to make binding decisions on
question of law.
69. The analysis of cases decided by the Privy Council and this
court prior to 1976 clearly indicated the scope of interference
under Section 100 C.P.C. by this Court. Even prior to
amendment, the consistent position has been that the courts
should not interfere with the concurrent findings of facts.
70. Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High Courts
would have jurisdiction of interfering under Section 100 C.P.C.
only in a case where substantial questions of law are involved
and those questions have been clearly formulated in the
memorandum of appeal. At the time of admission of the second
appeal, it is the bounden duty and obligation of the High Court
to formulate substantial questions of law and then only the High
Court is permitted to proceed with the case to decide those
questions of law. The language used in the amended section
specifically incorporates the words as "substantial question of
law" which is indicative of the legislative intention. It must be
clearly understood that the legislative intention was very clear
that legislature never wanted second appeal to become "third
trial on facts" or "one more dice in the gamble". The effect of
the amendment mainly, according to the amended section, was:
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(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard
only on that question.
71. The fact that, in a series of cases, this court was compelled
to interfere was because the true legislative intendment and
scope of Section 100 C.P.C. have neither been appreciated nor
applied. A class of judges while administering law honestly
believe that, if they are satisfied that, in any second appeal
brought before them evidence has been grossly misappreciated
either by the lower appellate court or by both the courts below,
it is their duty to interfere, because they seem to feel that a
decree following upon a gross misappreciation of evidence
involves injustice and it is the duty of the High Court to redress
such injustice. We would like to reiterate that the justice has to
be administered in accordance with law.
72. When Section 100 C.P.C. is critically examined then,
according to the legislative mandate, the interference by the
High Court is permissible only in cases involving substantial
questions of law.
73. The Judicial Committee of the Privy Council as early as in
1890 stated that there is no jurisdiction to entertain a second
appeal on the ground of an erroneous finding of fact, however,
gross or inexcusable the error may seem to be and they added a
note of warning that no Court in India has power to add to, or
enlarge, the grounds specified in Section 100.
74. The High Court seriously erred in interfering with the
findings of facts arrived at by the trial court and affirmed by the
first appellate court.
40. The scope of interference by the High Court in second appeal under
section 100 CPC after 1976 Amendment is strictly confined to cases
involving substantial questions of law. The High Court would not be
justified in dealing with any second appeal without first formulating
substantial question of law. The High Court would not be justified in
dealing with any second appeal without first formulating substantial
question of law. The legislative intention has been clearly spelt out in a
series of cases of this court.
41. In Gurdev Kaur (supra), this court exhaustively dealt with the
cases before and after 1976 Amendment of CPC. This court clearly
observed that the scope and ambit of Section 100 CPC has been
drastically changed after the amendment.
42. It is a matter of common experience in this court that despite clear
enunciation of law in a catena of cases of this court, a large number of
cases are brought to our notice where the High Court under section
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100 of CPC are disturbing the concurrent findings of fact without
formulating the substantial question of law. "
15. Useful reference is also made to the case of Hero Vinoth
v/s. Seshammal [(2006) 5 SCC 545], wherein, the Hon'ble
Apex Court explained phrase "substantial question of law" as
occurring in Section 100, as under:
"21. The phrase "substantial question of law", as occurring in the
amended Section 100 CPC is not defined in the Code. The word
substantial, as qualifying "question of law", means of having
substance, essential, real, of sound worth, important or 4 AIR 1962 SC
1314 5 AIR 1951 Mad 969 6 (2006) 5 SCC 545 considerable. It is to be
understood as something in contradistinction with technical, of no
substance or consequence, or academic merely. However, it is clear
that the legislature has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general importance" as has
been done in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of law on
which a second appeal shall be heard need not necessarily be a
substantial question of law of general importance. In Guran Ditta v.
Ram Ditta [AIR 1928 PC 172] the phrase "substantial question of law"
as it was employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial question
of law which was involved in the case. In Sir Chunilal case [1962 Supp
(3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed
agreement with the following view taken by a Full Bench of the Madras
High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad
969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR
549 : AIR 1962 SC 1314] , SCR p. 557)
"[W]hen a question of law is fairly arguable, where there is room for
difference of opinion on it or where the Court thought it necessary to
deal with that question at some length and discuss alternative views,
then the question would be a substantial question of law. On the other
hand if the question was practically covered by the decision of the
highest court or if the general principles to be applied in determining
the question are well settled and the only question was of applying
those principles to the particular fact of the case it would not be a
substantial question of law."
16. At this juncture, it is to be noticed that Section 62 of the
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TP Act gives a usufructuary mortgagor right to redeem the
mortgage till the mortgage money is paid. Mere expiry of
period of 30 years from the date of mortgage, does not
extinguish the right of the mortgagor under Section 62 of the
Act as held by the Hon'ble Supreme Court in case of Singh
Ram (D) Thr. Lrs. (Supra). If we go through the present
case, it is the case of the defendants that under the
usufructuary mortgage two parcels of land have been given to
the ancestor of the plaintiff. It was pleaded that the
redemption in regards to the one parcel of land was made,
further the defendant - appellant by way of a counter claim
intends to redeem the usufructuary mortgage in regards to the
other parcels of land. The learned Trial Court believed that no
legal redemption in regards to Survey No.165/1 ever took
place.
16.1 In the aforesaid circumstances, the right of the
appellant/defendants survives to file appropriate
proceedings/suit to redeem the usufructuary mortgage as
recognized under Section 62 of the TP Act for both the parcel
of land i.e. land of survey Nos.165/1 and 166. Mere expiry of
period of 30 years from the date of mortgage, would not
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extinguish the right of the mortgagor under Section 62 of the
TP Act. Defective counter claim of the defendant would not
take away his statutory right to redeem usufructuary
mortgage. Further, judgment and decree of learned Trial Court
confirmed up to this Court establish that plaintiff's possession
over both the parcel of land is in capacity of mortgagee. The
right under Section 62 of the TP Act gives a continuous cause
of action to the mortgagor of usufructuary mortgage provided
that he is ready to pay mortgage money recited in the
mortgage deed and therefore, he can file a suit for redemption
of the both the parcel of land of Survey Nos.165/1 and 166,
which is mortgaged to the ancestor of the plaintiff.
17. With the aforesaid observations, this Second Appeal
stands dismissed at the admission stage as no substantial
question of law arise. It is made clear that if the mortgagor
files the suit for redemption of the usufructuary mortgage
against the plaintiff, the findings arrived at by the learned Trial
Court as well as the learned Appellate Court in the present
matter, shall not come in the way and shall not be operated as
res-judicata.
Since the Second Appeal is dismissed, the connected Civil
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Application (For Stay) No.1 of 2025 does not survive and
stands disposed of accordingly.
(J. C. DOSHI,J)
NEHA
