High Court cannot also allow a second appeal, without discussing the question of law, the Supreme Court observed in a judgment delivered on Thursday.
In this case, plaintiff filed a suit seeking declaration of title to the suit property and recovery of possession of the suit property from the Defendant. The Trial Court dismissed the suit. The First Appellate Court allowed the plaintiff's appeal and held that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant had been enjoying the suit property for a long time. Allowing the second appeal filed by the Plaintiff, the High Court held that the Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree.
Taking note of the 'substantial questions of law' framed in this case, the bench comprising Justices Navin Sinha and Indira Banerjee observed:
"With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and/or precedents."
The court proceeded to observe that, to be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. "To be a question of law "involved in the case", there must be first, a foundation for it laid in the pleadings, and the question should emerge from the 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. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.", it added.
The bench therefore summarized the principles relating to Section 100 of the Code of Civil Procedure as follows:
The court observed that the judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case. It also addressed the contentions raised on merits. It observed that the presumption based on the maxim 'possession follows title' that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. Allowing the appeal, the bench observed:
"Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done."
Nazir Mohamed vs. J. Kamala
CIVIL APPEAL NOS. 2843-2844 OF 2010
Justices Navin Sinha and Indira Banerjee
K. K. MANI, S. THANANJAYAN
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