NARAYANA GRAMANI & ORS. versus MARIAMMAL & ORS. on 11 September 2018

Issues

SUPREME COURT REPORTS

[2018] 9 S.C.R.

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NARAYANA GRAMANI & ORS.

v.

MARIAMMAL & ORS.

(Civil Appeal No. 5057 of 2009)

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SEPTEMBER 11, 2018

[ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]

Code of Civil Procedure, 1908: s. 100 – Second appeal –Power of the High Court while deciding the second appeal – ScopeCand ambit of – On facts, in second appeal, the High Court allowedthe defendants’ appeal and set aside the plaintiffs’ suit which wasdecreed by the courts below – On appeal, held: Order passed bythe High Court not legally sustainable – High Court admitted thesecond appeal by framing only one substantial question of law,that whether the first appellate court was justified in dismissing theDdefendants’ first appeal by taking into consideration one earlierlitigation in relation to the suit land, which was not between thesame parties – High Court failed to see that even if the said questionwas answered in defendants’ favour, yet the plaintiffs’ suit couldnot have been dismissed unless the High Court had further examinedEthe main issue of ownership of the plaintiff over the suit land, whichwas decided by the courts below in plaintiffs’ favour – High Courthaving failed to frame any substantial question of law on the issueof the plaintiffs’ ownership over the suit land, had no jurisdictionto examine the said issue in its second appellate jurisdiction, in thelight of s. 100(5) – Further, the High Court cursorily touched theFownership issue which, could not be done – Also both the issue ofres judicata and ownership had to be examined independent of eachother on their respective merits, which was not done – Thus, matterremanded to the High Court.

Allowing the appeal, the CourtG

HELD: 1.1 Keeping in view the scope and ambit of thepowers of the High Court while deciding the second appeal, theHigh Court committed an error in allowing the defendants’ second H

appeal and further erred in dismissing the plaintiffs’ suit byanswering the substantial question of law. [Para 17][437-F-G]

1.2 Mere perusal of the impugned order would go to showthat the High Court had admitted the second appeal by framingonly one substantial question of law, namely, whether the firstAppellate Court was justified in dismissing the defendants’ firstappeal by taking into consideration one earlier litigation in relationto the suit land, which was not between the same parties. TheHigh Court held that the first Appellate Court was not justifiedbecause the earlier litigation was not between the present plaintiffsand the defendants but it was between the different parties and,therefore, any decision rendered in such litigation would notoperate as res judicata in the present litigation between theparties. This resulted in allowing of the appeal and dismissingthe suit. The High Court (Single Judge), failed to see that even ifthe said question was answered in defendants’ favour, yet theplaintiffs’ suit could not have been dismissed much less in itsentirety unless the High Court had further examined the mainissue of ownership of the plaintiffs over the suit land, which wasdecided by the two Courts below in plaintiffs’ favour on merits.[Para 18-20] [431-H; 438-A-C]

1.3 It was necessary for the High Court to have proceededto examine the issue relating to the plaintiffs’ title over the suitland, which was decided by the two Courts in plaintiffs’ favourholding that the plaintiffs were able to prove their title over thesuit land on the basis of documentary evidence whereas thedefendants failed to prove their title though asserted.[Para 21] [438-D-E]

1.4 The High Court committed another error when it failedto frame any substantial question of law on the issue of theplaintiffs’ ownership over the suit land. So long as no substantialquestion of law was framed, the High Court had no jurisdiction toexamine the said issue in its second appellate jurisdiction. Inother words, the High Court having framed only one question,which did not pertain to issue of ownership of the suit land, had A

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Ano jurisdiction to examine the issue of ownership. It was notpermissible in the light of Section 100 (5) CPC, which empowersthe High Court to decide the appeal only on the question framedand not beyond it. [Para 22-23] [438-F-H]

1.5 The High Court could invoke its powers under provisoBto sub-section (5) of Section 100 and frame one or two additionalquestions, as the case may be, even at the time of hearing of thesecond appeal. It would have enabled the High Court to examinethe issue of ownership of the suit land in its correct perspective.It was, however, not done by the High Court. [Para 24]C[439-A-B]

1.6 The High Court, while examining the question framed,also cursorily touched the ownership issue which, the High Courtcould not have done for want of framing of any substantial questionof law on the ownership issue. That apart, the High Court alsoDfailed to see that the issue of res judicata and the issue ofownership were independent issues and the decision on one wouldnot have answered the other one. In other words, both the issueshad to be examined independent of each other on their respectivemerits. It was, however, possible only after framing of substantialEquestions on both the issues as provided under Section 100(4)and (5) CPC. This was, however, not done in this case.[Para 25] [439-B-D]

1.7 Since the High Court failed to examine the issue ofownership of the plaintiffs on its merits for want of framing of theFsubstantial question(s) of law, the matter has to be remanded tothe High Court for deciding the question as to whether two Courtsbelow were right in their respective jurisdiction in holding thatthe plaintiffs were able to prove their title over the suit land onthe basis of evidence (oral/documentary) adduced by them and, ifso, whether such finding should be upheld or not.G[Para 27] [439-E-F]

1.8 The impugned order is not legally sustainable and isset aside. The case is remanded to the High Court for decidingthe second appeal afresh on merits in accordance with law byHproperly framing the substantial question(s) of law on the question of ownership of the plaintiffs over the suit land and examine as towhether the findings on the said question recorded by two Courtssuffer from any error or not. [Para 28] [439-G-H]

Sanatosh Hazari v. Purushottam Tiwari (2001) 3 SCC179 : [2001] 1 SCR 948 ; Surat Singh v. Siri Bhagwan& Ors. (2018) 4 SCC 562 – referred to.

Case Law Reference

[2001] 1 SCR 948referred to Para 16(2018) 4 SCC 562referred to Para 16

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5057of 2009.

From the Judgment and Order dated 09.07.2007 of the High Courtof Judicature at Madras in Second Appeal No. 632 of 1995.

MSM Asaithambi, V. Balaji, Rakesh K. Sharma, C. Kannan,Ms. Sripradha Krishnan, A.T.M. Sampath, Advs. for the Appellants.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by theplaintiffs against the final judgment and order dated 09.07.2007 passedby the High Court of Judicature at Madras in Second Appeal No.652 of1995 whereby the Single Judge of the High Court allowed the secondappeal filed by defendant Nos.2 to 5 and set aside the judgment anddecree dated 05.08.1994 passed by the Additional Subordinate Judge,Chingalpattu in A.S. No.72 of 1993 and dismissed the suit filed by theappellants herein.

2. In order to appreciate the issues involved in the appeal, whichlie in a narrow compass, few facts need mention hereinbelow.

3. Appellant Nos. 1 and 2 are the plaintiffs whereas appellantNo. 3 is the legal representative of third plaintiff-Thirunavukkarasu, whodied pending litigation. The respondents are defendants in the civil suit.

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4. The three plaintiffs claiming to be the members of one familyfiled a civil suit against the defendants for a declaration and permanentinjunction in relation to the land situated at No. 294/1 Vembanur Village,Kadapakkam Firka, (patta No. 491), Old Paimash No. 201/8 renumberedas S. No 399/4, Acs. 1.08 (hereinafter referred to as “suit land”).

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5. The plaintiffs traced the title to the suit land through theirpredecessor-in-title coupled with Patta issued by the Estate Manager inrelation to the suit land. According to the plaintiffs, there had been afamily partition inter se the plaintiffs wherein the suit land fell to theirshare. The plaintiffs alleged that they have been in possession of the suitCland, invested money and paying revenue taxes. The plaintiffs allegedthat the defendants are trying to disturb their possession over the suitland without any legal authority and are also asserting their title over thesuit land, which they do not have in their favour and hence there arise aneed to file the civil suit and claim declaration and permanent injunctionin relation to the suit land.D

6. The defendants filed their written statement and denied theplaintiffs’ claim over the suit land. According to them, they are theowners of the suit land having purchased the same vide sale deed dated15.02.1967 for Rs.200/- from one Muthu Mudaliar and his son RajaramEMudaliar who, according to the defendants, were the owners of the suitland. Defendant No. 1 also claimed to be in possession of the suit landand cultivating the same.

7. The Trial Court framed two issues, viz., (1) Whether theplaintiffs are entitled for seeking declaration and permanent injunction;Fand (2) If so, for what reliefs. Parties adduced their evidence (oral anddocumentary). By Judgment and decree dated 23.11.1993, the Trial Courtdecreed the plaintiffs’ suit. It was held that the plaintiffs are able toprove their ownership over the suit land on the basis of the documentsfiled by them; that the plaintiffs are in possession of the suit land; thatthey are, therefore, entitled to claim a declaration of their title over theGsuit land as its owners so also are entitled to claim permanent injunctionagainst the defendants restraining them from interfering in their(plaintiffs’) peaceful possession over the suit land.

8. The defendants felt aggrieved and filed first appeal before theAdditional Sub-Judge (Appeal Suit No. 72/1993). By Judgment dated05.08.1994, the Appellate Court dismissed the defendants’ appeal andaffirmed the judgment and decree passed by the Trial Court.

9. The defendants pursued the matter further and filed secondappeal in the High Court at Madras. The High Court admitted the secondappeal on the following substantial question of law:

“Whether the same judge can dismiss an appeal onthe ground that he has already rejected the appellants’ casein an earlier appeal against different parties in the absenceof pleadings of rejudicata or estoppel by judgment by neitherof the parties, especially when the issue is pending fordecision before the High Court by way of second appeal.”

10. By impugned judgment, the High Court allowed the appealand set aside the judgment and decree of the two courts below and, inconsequence, dismissed the suit giving rise to filing of the present appealby way of special leave in this Court by the plaintiffs.

11. The short question, which arises for consideration in this appeal,is whether the High Court was justified in allowing the defendants’ appealand, in consequence, dismissing the plaintiffs’ suit which was decreedby the two Courts below.

12. Mr. MSM Asaithambi, learned counsel appeared for theappellants. Despite notice, none appeared for the respondents.

13. Having heard the learned counsel for the appellants and onperusal of the record of the case, we are inclined to allow the appeal andwhile setting aside the impugned judgment remand the case to the HighCourt for deciding the appeal afresh on merits in accordance with lawafter framing appropriate substantial question of law as indicated below.

14. Before we examine the facts of the case, it is necessary tosee the scope of Section 100 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”), which empowers the High Court A

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Ato decide the second appeals. Indeed, it is explained in several decisionsof this Court and thus remains no more res integra.

15. Section 100 of the Code reads as under:

“100. Second appeal.- (1) Save as otherwise expresslyBprovided in the body of this Code or by any other law forthe time being in force, an appeal shall lie to the High Courtfrom every decree passed in appeal by any Courtsubordinate to the High Court, if the High Court is satisfiedthat the case involves a substantial question of law.

C(2) An appeal may lie under this section from an appellatedecree passed ex parte.

(3) In an appeal under this section, the memorandum ofappeal shall precisely state the substantial question of lawDinvolved in the appeal.

(4) Where the High Court is satisfied that a substantialquestion of law is involved in any case, it shall formulatethat question.

E(5) The appeal shall be heard on the question so formulatedand the respondent shall, at the hearing of the appeal, beallowed to argue that the case does not involve suchquestion:

Provided that nothing in this sub-section shall be deemedFto take away or abridge the power of the court to hear, forreasons to be recorded, the appeal on any other substantialquestion of law formulated by it, if it is satisfied that thecase involves such question.”

G16. Sub-section (1) of Section 100 says that the second appealwould be entertained by the High Court only if the High Court is “satisfied”that the case involves a “substantial question of law”. Sub- section (3)makes it obligatory upon the appellant to precisely state in memo ofappeal the “substantial question of law” involved in the appeal. Sub- H

section (4) provides that where the High Court is satisfied that anysubstantial question of law is involved in the case, it shall formulate thatquestion. In other words, once the High Court is satisfied after hearingthe appellant or his counsel, as the case may be, that the appeal involvesa substantial question of law, it has to formulate that question and thendirect issuance of notice to the respondent of the memo of appeal alongwith the question of law framed by the High Court. Sub-section (5)provides that the appeal shall be heard only on the question formulatedby the High Court under sub-section (4). In other words, the jurisdictionof the High Court to decide the second appeal is confined only to thequestion framed by the High Court under sub-section(4). The respondent,however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the HighCourt under sub-section (4) does not involve in the appeal. The reasonfor giving this right to the respondent for raising such objection at thetime of hearing is because the High Court frames the question at theadmission stage which is prior to issuance of the notice of appeal to therespondent. In other words, the question is framed behind the back ofrespondent and, therefore, sub-section(5) enables him to raise suchobjection at the time of hearing that the question framed does not arisein the appeal. The proviso to sub-section (5), however, also recognizesthe power of the High Court to hear the appeal on any other substantialquestion of law which was not initially framed by the High Court undersub-section (4). However, this power can be exercised by the HighCourt only after assigning the reasons for framing such additional questionof law at the time of hearing of the appeal. (See Sanatosh Hazari vs.Purushottam Tiwari [(2001) 3 SCC 179] and Surat Singh vs. SiriBhagwan & Ors. [(2018) 4 SCC 562]

17. Keeping in view the scope and ambit of the powers of theHigh Court while deciding the second appeal when we advert to thefacts of the case, we find that the High Court committed an error inallowing the defendants’ second appeal and further erred in dismissingthe plaintiffs’ suit by answering the substantial question of law. This wesay for more than one reason.

18. First, mere perusal of the impugned order would go to showthat the High Court had admitted the second appeal by framing only one A

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Asubstantial question of law, namely, whether the first Appellate Courtwas justified in dismissing the defendants’ first appeal by taking intoconsideration one earlier litigation in relation to the suit land, which wasnot between the same parties.

19. The High Court held that the first Appellate Court was notBjustified because the earlier litigation was not between the presentplaintiffs and the defendants but it was between the different partiesand, therefore, any decision rendered in such litigation would not operateas res judicata in the present litigation between the parties. This resultedin allowing of the appeal and dismissing the suit.

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20. The High Court (Single Judge), in our opinion, failed to seethat even if the said question was answered in defendants’ favour, yetthe plaintiffs’ suit could not have been dismissed much less in its entiretyunless the High Court had further examined the main issue of ownershipof the plaintiffs over the suit land, which was decided by the two CourtsDbelow in plaintiffs’ favour on merits.

21. In other words, we are of the view that it was necessary forthe High Court to have proceeded to examine the issue relating to theplaintiffs’ title over the suit land, which was decided by the two Courts inplaintiffs’ favour holding that the plaintiffs were able to prove their titleEover the suit land on the basis of documentary evidence whereas thedefendants failed to prove their title though asserted.

22. Second, the High Court committed another error when it failedto frame any substantial question of law on the issue of the plaintiffs’Fownership over the suit land.

23. So long as no substantial question of law was framed, theHigh Court had no jurisdiction to examine the said issue in its secondappellate jurisdiction. In other words, the High Court having framed onlyone question, which did not pertain to issue of ownership of the suit land,Ghad no jurisdiction to examine the issue of ownership. It was notpermissible in the light of Section 100 (5) of the Code, which empowersthe High Court to decide the appeal only on the question framed and notbeyond it.

24. Third, the High Court could invoke its powers under provisoto sub-section (5) of Section 100 and frame one or two additionalquestions, as the case may be, even at the time of hearing of the secondappeal. It would have enabled the High Court to examine the issue ofownership of the suit land in its correct perspective. It was, however,not done by the High Court.

25. Fourth, the High Court, while examining the question framed,also cursorily touched the ownership issue which, in our opinion, theHigh Court could not have done for want of framing of any substantialquestion of law on the ownership issue. That apart, the High Court alsofailed to see that the issue of res judicata and the issue of ownershipwere independent issues and the decision on one would not haveanswered the other one. In other words, both the issues had to beexamined independent of each other on their respective merits. It was,however, possible only after framing of substantial questions on both theissues as provided under Section 100(4) and (5) of the Code. This was,however, not done in this case.

26. In the light of aforementioned four reasons, we are of theconsidered opinion that the impugned judgment is not legally sustainableand, therefore, it has to be set aside.

27. Since the High Court failed to examine the issue of ownershipof the plaintiffs on its merits for want of framing of the substantialquestion(s) of law, the matter has to be remanded to the High Court fordeciding the question as to whether two Courts below were right in theirrespective jurisdiction in holding that the plaintiffs were able to provetheir title over the suit land on the basis of evidence (oral/documentary)adduced by them and, if so, whether such finding should be upheld ornot.

28. In view of the foregoing discussion, the appeal succeeds andis allowed. Impugned order is set aside. The case is remanded to theHigh Court for deciding the second appeal afresh on merits in accordancewith law by properly framing the substantial question(s) of law on thequestion of ownership of the plaintiffs over the suit land and then toexamine as to whether the findings on the said question recorded by twoCourts suffer from any error(s) or not.

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[2018] 9 S.C.R.

A29. We, however, make it clear that we have not applied our mindon the merits of the controversy having formed an opinion to remand thecase to the High Court for deciding the appeal afresh as observed aboveand, therefore, the High Court will decide the appeal strictly in accordancewith law uninfluenced by any of our observations.

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30. Since the matter is quite old, we request the High Court todecide the appeal as expeditiously as possible preferably within 6 monthsfrom the date of this judgment.

CNidhi Jain

Appeal allowed.

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