“The Respondent’s claim is to be decided on the strength of his own his own case and not on the weakness of the Appellant’s”
The Supreme Court recently dealt with an appeal by special leave against the judgement whereby the Madras High Court, in Second Appeal had overturned the decision of First Appellate Court which declined the present Respondent’s claim to a decree of recovery of possession of the suit premises.
Facts:
The immovable property in question in Tamil Nadu was claimed by the present Appellant being the absolute owner of the property having owned and enjoyed the same since he got the property under a registered sale deed from his father, who was the original owner. The present respondent, however also claimed the property in his own name having got the same property from his father and declaring that the present Appellant’s father was a tenant in the suit property and after his death, the tenancy was attorned in the name of the present Appellant himself. It was ascertained from the findings of the court that the present Appellant only owned half of the suit premises while the other half was owned by the present Respondent although it was the present Appellant who could had continuous possession over the whole property that lasted for more than 20 years. The present Respondent filed a suit in the Court of District Munsif claiming declaration of ownership against the present Appellant with a direction to deliver possession of the suit premises combined with arrears of occupation. A decree for payment of future profits was also sought for.
Decision of Trial Court and First Appellate Court:
The Trial Court held that the present respondent was not entitled to any kind of relief in the said suit for the reason that he could not prove the alleged fact that his father had purchased the suit property. Also, the respondent could not procure any rent receipt, rent agreement or any other oral documentary evidence proving his claim over the suit property.
In the first appeal filed by the respondent before the Subordinate Court, the decision of the Trial Court was overturned to the extent that the appellant was liable to pay only a “backage income” in respect of the portion of the suit property, of which the respondent was the owner. The First Appellate Court concurred with the Trial Court on the point that the respondent was not entitled to possession of suit premises.
Decision of the High Court:
The High Court partially overruled the decision of the First Appellate Court by deciding that the Respondent will be entitled to the recovery of possession of half of the suit premises i.e. the portion that was owned by the Respondent’s father. The other findings of the First Appellate Court were concurred upon by the High Court in Second Appeal.
Aggrieved by the same, the Appellant filed an appeal in the Supreme Court.
Supreme Court’s Observations:
The Supreme Court observed that Section 100 of Civil Procedure Code, 1908 grants the power of second appeal to only those cases which have a ‘substantial question of law’ involved. In other words, the existence of a substantial question of law is essential for the exercise of jurisdiction under Section 100 of the CPC.
The Court further stated,
“A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.”
In the case of ‘Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.’, the Constitutional Bench of Supreme Court enunciated the principles when a question of law becomes a substantial question of law.
The tests to determine whether a question of law qualified enough to be substantial were summarised in the case of ‘Hero Vinoth v. Seshammal’ by the same Court.
Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained. This was decided by the Supreme Court in ‘Panchagopal Barua v. Vinesh Chandra Goswami’.
It was held in the case of ‘Ramchandra v. Ramalingam’ that in a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact is incorrect.
The Supreme Court while concluding the appeal, summarised the principles relevant to Section 100, CPC for clearer interpretation of the said section in the final judgement as:
- An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
- The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
- A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settles position of law.
- The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
According to the Supreme Court, the High Court erred in law by giving the possession of the suit premises on the ground that the Appellant had never taken the defence of adverse possession as it is not the Respondent’s claim is to be decided on the strength of his own his own case and not on the weakness of the Appellant’s. This was propounded by the Privy Council in the case of ‘Baba Kartar Singh v. Dayal Das’.
The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, it will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.
The Appellant has shown that he has had continuous possession of the suit premises, that includes both the portions – that belonged to the Appellant and the rest of the portion that belonged to the Respondent. SC also pronounced, “The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.” This case also falls under the bar of limitation in the favour of the Appellant.
Finally, the Supreme Court by quoting the case law of “Biswanath Ghosh v. Gobinda Ghose”, concluded the judgement by stating that when no substantial question of law is formulated, but a second appeal is decided by the High Court, the judgement of the High Court is vitiated in law. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.
Supreme Court held:
Setting aside the judgment and order of the High Court, the Apex Court allowed the appeal and restored the judgement and decree of the First Appellate Court.
Bench: Justice Indira Banerjee, Justice Navin Sinha
Case Title: Nazir Mohammed v. J. Kamala Harris & Ors.
Case Details: Civil Appeal No’s 2843-2844 of 2010
Read the Judgement:
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