IMPORTANT POINT
Judgment in second appeal by High Court without any substantial question of law formulated could not be sustained.

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. The appeal relates to a judgment delivered by a learned Single Judge of the Punjab and Haryana High Court in Regular Second Appeal No. 895 of 1984. The Second Appeal was filed by the defendants, in a suit for possession. The suit had been decreed by both the trial court and the first appellate court on the ground that the plaintiff (appellant) herein is the Saunjidar of the land in dispute and he had been dispossessed forcibly and illegally. The High Court held that when a person is claiming a title, right or interest in the property in dispute either being a owner or a saunjidar or tenant, then the jurisdiction of the civil court is barred. Saunjidar right is an interest claimed by the plaintiff-the appellant herein. Therefore, the civil court cannot adjudicate upon the matter. It is only the Collector under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) who can decide whether the plaintiff had any saunjidar rights in the property in dispute. Accordingly the appeal was allowed, judgment and decree passed by the courts below were set aside and the suit of the plaintiff-appellant herein were dismissed.

3. Though several points were urged in support of the appeal, the basic issue which was urged was that the Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the Code) has been disposed of without formulating substantial question of law by the High Court. It is, therefore, not necessary to deal with the factual aspects in detail.

4. Learned counsel for the appellant submitted that the High Court was not justified in disposing of the second appeal without formulating the substantial question or questions of law, as mandated by Section 100 of the Code.

5. Learned counsel for the respondents submitted that though the High Court has not formulated the questions of law as required, yet on analyzing the evidence, it concluded that the views expressed by the courts below were not tenable in law, and the civil court had no jurisdiction to deal with the suit.

6. It is further submitted that though no substantial question of law was formulated before the Second Appeal was adjudicated, yet that is permissible, because proviso to sub Section (5) of Section 100 permits the High Court to decide a second appeal on a different substantial question of law subject to recording of reasons.

7. Section 100 of the Code deals with "second appeal". The provision reads as follows:

"100 (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 on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

8. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.

9. In Ishwar Dass Jain v. Sohan Lal [2000 (1) SCC 434] this Court in para 10 has