No substantial Question no Appeal Section 100 of the Code of Civil procedure deals with “second appeal”. The provision reads as follows : “100 (1) Save as otherwise expressly provided in […]
Section 100 Code of Civil Procedure jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law
(1) Whether the trial court can pass a decree for declaration that the judgment and decree passed in Title Suit No. 138 of 1998 is null and void having passed against some of the co-sharers, […]
Substantial question of law While entertaining the second appeal it is to be kept in mind that the first appellate Court is the final Court of fact findings and pure findings of […]
Adverse Possession- “the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of […]
That construction of documents would be a substantial question of law is now a well settled proposition. This proposition has been settled as far back as the Judgment of the Privy Council in the case of AIR 1935 12 (Privy Council) It has since been re-affirmed by this Court in the case of Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, and the case of Neelu Narayani V/s. Lakshmanan, (1999) 9 SCC 237 .
Second Appeal-Adverse Possession-The petitioner-defendant failed to lead any cogent evidence of his being in possession of the suit property ever since 1970 and, Therefore, the trial court was fully justified in not […]
September 11, 2018-TITLE APPEAL-Keeping in view the scope and ambit of the powers of the High Court while deciding the second appeal when we advert to the facts of the case, we find that the High Court committed an error in allowing the defendants’ second appeal and further erred in dismissing the plaintiffs’ suit by answering the substantial question of law. This we say for more than one reason.
First, mere perusal of the impugned order would go to show that the High Court had admitted the second appeal by framing only one substantial question of law, namely, whether the first Appellate Court was justified in dismissing the defendants’ first appeal by taking into consideration one earlier litigation in relation to the suit land, which was not between the same parties. The High Court held that the first Appellate Court was not justified because the earlier litigation was not between the present plaintiffs and the defendants but it was between the different parties and, therefore, any decision rendered in such litigation would not operate as res judicata in the present litigation between the parties. This resulted in allowing of the appeal and dismissing the suit.
Second, the High Court committed another error when it failed to frame any substantial question of law on the issue of the plaintiffs’ ownership over the suit land. So long as no substantial question of law was framed, the High Court had no jurisdiction to examine the said issue in its second appellate jurisdiction. In other words, the High Court having framed only one question, which did not pertain to issue of ownership of the suit land, had no jurisdiction to examine the issue of ownership. It was not permissible in the light of Section 100 (5) of the Code, which empowers the High Court to decide the appeal only on the question framed and not beyond it.
Third, the High Court could invoke its powers under proviso to subsection (5) of Section 100 and frame one or two additional questions, as the case may be, even at the time of hearing of the second appeal. It would have enabled the High Court to examine the issue of ownership of the suit land in its correct perspective. It was, however, not done by the High Court.
Fourth, the High Court, while examining the question framed, also cursorily touched the ownership issue which, in our opinion, the High Court could not have done for want of framing of any substantial question of law on the ownership issue. That apart, the High Court also failed to see that the issue of res judicata and the issue of ownership were independent issues and the decision on one would not have 14 answered the other one. In other words, both the issues had to be examined independent of each other on their respective merits. It was, however, possible only after framing of substantial questions on both the issues as provided under Section 100(4) and (5) of the Code. This was, however, not done in this case.
23-10-2017-Civil Suit- SUPREME COURT OF INDIA permitting the respondents to argue beyond the facts admitted in the registered agreement to sell and the registered sale deeds and the admission deed as well […]