CPC | Second Appeals Must Strictly Comply With S.100 CPC, No Scope For Equitable Grounds Or Disturbing Concurrent Findings: J&K High Court

A bench comprising Justice Javed Iqbal Wani, cited Pankaj Bhargava and another vs. Mohinder Nath and another (1991) 1 SCC 556 to clarify the criteria for the High Court to admit a second appeal and observed that the High Court can only entertain such an appeal if it is convinced that a substantial question of law is inherent to the case. This means that the question must be essential to the resolution of the case, not merely raised by the appellant, the court underscored.

The court accentuated that the word "involves" used in the Section implies a significant degree of necessity, and the mere possibility of a legal question arising in certain circumstances is not sufficient.

Pointing out the bare text used in Section 100 CPC Justice Wani remarked,

“Thus, what emanates from above position and principles of law is that the existence of a substantial question of law is sine qua non for exercise of jurisdiction under Section 100 of the CPC”

The court made these observations while hearing a Civil Second appeal which originated from a land acquisition process undertaken by the State for the four-laning of a national highway. The respondents, claiming ownership of 22 kanals and 19 marlas of land in Anantnag, alleged that they were denied compensation for 17 kanals and 16 marlas of Shamilat land.

Although compensation was paid for their proprietary land, the State rejected their claim to the Shamilat land, asserting that Mutation under which the respondents claimed ownership, was fraudulent.

In response to the State's rejection, the respondents filed a declaratory suit in 2016 before the Sub-Judge, Anantnag. The trial court, in an ex parte judgment declared the respondents as rightful owners of the land and directed the State to pay compensation with interest. Dissatisfied, the State appealed to the Principal District Judge, Anantnag, but the appeal was dismissed in 2018, leading to the present second appeal before the High Court.

The appellants contended th that the ex parte judgment was a result of their inability to appear due to unrest in the Valley and the non-availability of their counsel. Arguing that the mutation relied upon respondents was fraudulent, and compensation for the Shamilat land was unjustified they submitted that the lower courts failed to consider an inquiry report indicating serious irregularities in the mutation process.

After considering the rival contentions Justice Wani underscored the legal principles governing second appeals under Section 100 CPC. Citing the Supreme Court's judgment in Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar [(1999) 3 SCC 722], he observed,

“The conditions mentioned in Section 100 CPC must be strictly fulfilled before a second appeal can be maintained, and no court has the power to add to or enlarge those grounds. Concurrent findings of fact, even if erroneous, cannot be disturbed.”

Further, Justice Wani referred to M. G. Hegde v. Vasudev Hegde reported in (2000) and reiterated,

“.. the expressions “perverse”, “unreasonable”, and “irrational” are of strong nature and cannot be used lightly and indiscriminately with a view to set aside the finding arrived at by the first appellate court, having further held that this is not a mantra that can be applied to do in a second appeal what the law enjoins it not to do”

In the context of Shamilat land, the Court relied on its own precedents, including Kuldeep Raj v. State of J&K [2022 (2) JKJ(HC) 114] and State of J&K v. Hamida Begum [AIR 1979 J&K 48], which established that individuals occupying Shamilat land have rights akin to ownership and are entitled to compensation upon acquisition.

Upon scrutinising the record the court noted that the appellants had not disputed the possession of the plaintiffs/respondents over the land in question, or else the attestation of mutation qua the said land in their favour before any of the below forums.

“What has been disputed by the defendants appellants herein qua the said land is the mutation alleged to have been attested fraudulently. Nonetheless appellants before the appellate court failed to establish the said alleged fraudulent mutation by leading any credible or cogent evidence in support thereof and although the appellants herein in this regard referred to the holding of an enquiry, yet even such enquiry record/ report was not produced by way of evidence and proved before the courts below”,the court underlined.

Concluding that the concurrent findings of the lower courts were legally sound and did not involve any substantial question of law warranting interference the second appeal was dismissed. The Court thus directed that 50% of the compensation already deposited by the appellants be transferred to the trial court for disbursement.

Case Title: State Of J&K Vs Mohammad Sayidullah Bhat

Citation: 2024 LiveLaw (JKL) 328

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