IMPORTANT POINT
The very jurisdiction of High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law.

JUDGMENT

R.M. Lodha, J. —

Leave granted.

2. This appeal, by special leave, has been preferred by the original 1st defendant against the judgment of the High Court of Judicature of Bombay, Aurangabad Bench whereby the learned Single Judge of that Court reversed the judgment and decree passed in the appeal by the Additional District Judge, Osmanabad and restored the judgment and decree of the trial court.

3. Sardar Khan was the owner of a property bearing land Block No. 386 and House No. 206 situate at Mangrul, Taluqa Kallam, District Osmanabad. He died in 1948 leaving behind a son —Umerkhan and two daughters—Bismillabi and Aminabi. Both daughters were minor at the time of the death of their father. They got married later. Bismillabi (hereinafter referred to as, ‘plaintiff’) filed a suit for partition and separate possession to the extent of 1/4th share in the above property against her brother Umerkhan (hereinafter referred to as, ‘1st defendant’) and her sister Aminabi (hereinafter referred to as, ‘2nd defendant’). The plaintiff’s case in the plaint was that as per the Muhammadan Law, the 1st defendant has 1/2 share while the 2nd defendant like her has 1/4th share in the suit property.

4. The 1st defendant contested the suit on diverse grounds. Inter alia, a plea was taken by him that plaintiff has been ousted of her right, title and possession in 1967 and the suit having been brought in 1990 was not only barred by limitation but also he has acquired title by adverse possession as he has been holding hostile possession over the property to the knowledge of the plaintiff. The 2nd defendant did not file any written statement and the suit proceeded against her ex-parte.

5. The trial court framed as many as four issues; issue no. 4 being whether 1st defendant has proved that he has become owner of the suit property by adverse possession. The trial court recorded the evidence and after hearing the advocates for the plaintiff and the 1st defendant vide its judgment and decree dated October 18, 1993 declared that plaintiff and 2nd defendant were entitled to 1/4th share each and the 1st defendant was entitled to 1/2 share in the suit property. The trial court ordered for effecting partition by metes and bounds accordingly.

6. Against the judgment and decree of the trial court, the 1st defendant preferred first appeal before the District Court, Osmanabad which was transferred to the Court of Additional District Judge, Osmanabad for its disposal. The first appellate court reversed the finding of the trial court on issue no.4 and held that the 1st defendant became owner of the suit property by adverse possession and, accordingly, allowed the first appeal on August 1, 2001 and set aside the judgment and decree of the trial court.

7. The plaintiff challenged the judgment and decree of the first appellate court in the second appeal before the High Court. In the course of second appeal, 2nd defendant died and her legal representatives were brought on record. The High Court allowed the second appeal and, as noticed above, set aside the judgment and decree of the first appellate court.

8. Pertinently, the judgment of the High Court that runs into eight foolscap pages does not indicate that scope of second appeal as provided in Section 100 and Section 101 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) was kept in mind while hearing the second appeal. In para 7 of the judgment, the High Court observed thus:

“I have minutely gone through both the judgments of the Courts below only on the issue of adverse possession which is also a mixed question of law and fact.”

9. The High Court then proceeded to record the arguments of the counsel for the 1st defendant (respondent no. 1 therein) in paragraph 8. Thereafter in paragraphs 9, 10 and 11 it was observed and held as follows :

“9. The case of ouster is pleaded by Respondent No. 1 in the written statement stating that after two years of her marriage sometime in the year 1967 both the