Case Note & Summary
The case involves a property dispute between Nazir Mohamed (appellant) and J. Kamala (respondent) over a building and premises in Aduthurai, Tamil Nadu. The appellant claimed ownership through a 1938 sale deed in his father's name, while the respondent claimed ownership through a 1940 sale deed in his father's name and alleged that the appellant was a tenant. The respondent filed a suit in 1994 seeking declaration of title, possession, and arrears of rent. The trial court dismissed the suit, holding that the respondent failed to prove his father's purchase. The first appellate court partly allowed the appeal, granting a declaration of title over half the property and mesne profits, but denied possession on the ground that the appellant had been in possession for a long time, implying the claim was barred by limitation. Both parties filed second appeals in the Madras High Court. The High Court dismissed the appellant's appeal and allowed the respondent's appeal, granting recovery of possession without framing any substantial question of law. The Supreme Court held that the High Court's judgment was patently illegal and without jurisdiction because it failed to comply with the mandatory requirement under Section 100 CPC to formulate a substantial question of law. The Supreme Court allowed the appellant's appeal, set aside the High Court's judgment, and restored the first appellate court's decree, which had denied possession to the respondent.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court allowed the respondent-plaintiff's second appeal and granted recovery of possession without framing any substantial question of law. The Supreme Court held that the High Court's judgment was patently illegal and without jurisdiction as it failed to comply with the mandatory requirement of Section 100 CPC. The appeal was allowed and the High Court's judgment was set aside. (Paras 24-30) B) Property Law - Co-ownership - Right to Possession - Limitation - The first appellate court had declined recovery of possession to the respondent-plaintiff on the ground that the appellant-defendant had been in possession for a long time, implying the relief was barred by limitation. The Supreme Court noted that the first appellate court's finding was a finding of fact and the High Court could not interfere in second appeal without a substantial question of law. (Paras 20-23) C) Civil Procedure - Second Appeal - Interference with Findings of Fact - Section 100 CPC - The High Court in second appeal cannot reappreciate evidence and reverse findings of fact unless they are perverse or based on no evidence. The first appellate court's finding that the respondent-plaintiff was not entitled to possession was a finding of fact, and the High Court erred in reversing it without formulating a substantial question of law. (Paras 24-30)
Issue of Consideration
Whether the High Court was justified in allowing the second appeal filed by the respondent-plaintiff and granting recovery of possession without framing a substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Supreme Court allowed the appeals, set aside the impugned judgment and order of the High Court dated 06.11.2008, and restored the judgment and decree of the First Appellate Court dated 17.09.1999. The appeals were disposed of accordingly.
Law Points
- Second appeal under Section 100 CPC requires formulation of substantial question of law
- High Court cannot interfere with findings of fact in second appeal
- Limitation for recovery of possession based on title
- Co-owner's right to possession against trespasser
