2020 Supreme(SC) 507

SUPREME COURT OF INDIA
NAVIN SINHA, INDIRA BANERJEE, JJ.
Nazir Mohamed – Appellant
Versus
J. Kamala and Ors. – Respondents
Civil Appeal Nos. 2843-2844 of 2010
Decided On : 27-08-2020

IMPORTANT POINT
(1) A second appeal or any appeal is not a matter of right. Right of appeal is conferred by statute. Second appeal only lies on a substantial question of law.
(2) A decree of possession does not automatically follow a decree of declaration of title and ownership over property.
(3) If rightful owner does not come forward and assert his right of possession by law, within period prescribed by provisions of statute of limitation applicable to case, his right is forever distinguished and possessory owner acquires an absolute title.
(4) Court is obliged to dismiss a suit filed after expiry of period of limitation, even though plea of limitation may not have been taken in defence.

Headnote:

(A) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Existence of a substantial question of law is sine qua non for exercise of jurisdiction under Section 100 of CPC – A second appeal or any appeal is not a matter of right – Right of appeal is conferred by statute – Second appeal only lies on a substantial question of law – If statute confers a limited right of appeal, Court cannot expand scope of appeal – It was not open to Respondent-Plaintiff to re-agitate facts or to call upon High Court to reanalyze or re-appreciate evidence in a Second Appeal – Section 100 of CPC, as amended, restricts right of second appeal, to only those cases, where a substantial question of law is involved (Paras 25 and 26)

(B) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Substantial question of law – To be a question of law involved in the case, there must be first, a foundation for it laid in pleadings, and question should emerge from sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case – To be “substantial”, a question of law must be debatable, not previously settled by law of land or any binding precedent and must have a material bearing on decision of case and/or rights of parties before it, if answered either way – Where no such question of law, nor even a mixed question of law and fact was urged before Trial Court or First Appellate Court, second appeal cannot be entertained – Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on facts and circumstances of each case – Paramount overall consideration is need for striking judicious balance between indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in life of any lis – In a Second Appeal, jurisdiction of High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal even if appreciation of evidence is palpably erroneous and finding of fact incorrect – An entirely new point raised first time, before High Court, is not a question involved in the case, unless it goes to root of matter. (Paras 32 to 36)

(C) Civil Procedure Code, 1908 – Section 100 – Second Appeal – An inference of fact from recitals or contents of a document is a question of fact, but legal effect of terms of a document is a question of law – Construction of a document, involving application of any principle of law, is also a question of law – 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 – High Court should be satisfied that case involves a substantial question of law and not a mere question of law – A question of law having a material bearing on decision of case (that is, a question, answer to which affects rights of parties to 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 legal position is clear, either on account of express provisions of law or binding precedents but Court below has decided the matter, either ignoring or acting contrary to such legal principle – In second type of cases, substantial question of law arises not because law is still debatable, but because decision rendered on a material question, violates settled position of law – General rule is, that High Court will not interfere with concurrent findings of Courts below – But it is not an absolute rule – 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 evidence, taken as a whole, is not reasonably capable of supporting the finding – When no substantial question of law is formulated, but a Second Appeal is decided by High Court, judgment of High Court is vitiated in law – Formulation of substantial question of law is mandatory and mere reference to ground mentioned in Memorandum of Second Appeal cannot satisfy mandate of Section 100 of CPC. (Paras 37 and 59)

(D) Property Law – Possession – A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by laws of limitation – He must show that he had possession before alleged trespasser got possession – A decree of possession does not automatically follow a decree of declaration of title and ownership over property – Where a Plaintiff wants to establish that Defendant’s original possession was permissive, it is for Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary – Plaintiff’s claim to reliefs is to be decided on strength of Plaintiff’s case and not weakness in opponent’s case – Maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in case of open spaces accessible to all – Presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. (Paras 46, 48, 51 and 52)

(E) Adverse Possession – Acquisition of Possessory Title – A person in possession of land in assumed character of owner and exercising peaceably ordinary rights of ownership has a perfectly good title against all world but rightful owner – If rightful owner does not come forward and assert his right of possession by law, within period prescribed by provisions of statute of limitation applicable to case, his right is forever distinguished and possessory owner acquires an absolute title. [Limitation Act, 1963 – Article 65] (Para 56)

(F) Limitation Act, 1963 – Section 3 – A suit for recovery of possession of immovable property is governed by Limitation Act, 1963 – Section 3 of Limitation Act bars institution of any suit after expiry of period of limitation prescribed in the Act – Court is obliged to dismiss a suit filed after expiry of period of limitation, even though plea of limitation may not have been taken in defence. (Para 53)

Facts of the case:

Present appeals are against a common judgment and order dismissing Second Appeal filed by the Appellant, but allowing the Second Appeal filed by Respondent, and setting aside the judgment and decree of First Appellate Court in A.S, to the extent First Appellate Court had declined the Respondent’s claim to a decree of recovery of possession of the suit premises. High Court held that the Respondent, being the Plaintiff in the suit was entitled to a declaration of title in respect of half portion of suit premises, recovery of possession of the said half portion of the suit premises and also to recovery of income from the said half of the suit property owned by the Respondent and/or charges for use, enjoyment and/or occupation thereof.

Findings of Court:

Just as this Court has time and again deprecated practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, High Court cannot also allow a second appeal, without discussing the question of law, which High Court has done.

Result : Appeals allowed