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Second Appeal can be dismissed without formulating Substantial Question ofLaw: SC Reiterates-100 CPC


Kirpa Ram (Deceased) Through Legal Representatives & Ors. v. Surendra Deo Gaur & Ors.

Civil Appeal No. 8971 of 2010.

Decided on November 16, 2020.

Counsel for Appellants: Mr.Mehta

A three-judge bench comprising of Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ajay Rastogi decided the present case. The Court dismissed the petition by stating that the Land Revenue Act does not bar the jurisdiction of the Civil Court to entertain a suit for boundary disputes and held that there was no error in the judgment of the High Court in the absence of formulation of substantial questions of law.

The present appeal has been preferred by Defendant No.4 of the original suit for permanent injunction against the findings of three Courts. The plaintiffs, represented as respondent Nos. 1 and 2 in the present appeal, filed a suit for permanent injunction on 31.7.1971 claiming that Khasra No. 238 situated in the Village Basai Darapur, Delhi is owned by them, on the apprehension that there was a threat to their possession of land against Defendant No. 1 - The Refugees’ Co-operative Housing Society Ltd., its President - Defendant No. 2, Secretary - Defendant No. 3 and Defendant No. 4 - Kirpa Ram, predecessor in interest of the present appellants. The Defendant Nos. 1 to 3 claimed that the jurisdiction of the Civil Court relating to Bhumidari land is barred under Section 85 of the Reforms Act and that the proceedings have nothing to do with Khasra No. 238 as Defendant No. 4 threatened to encroach upon Khasra No. 1273. Defendant No.4 asserted that the plaintiffs were not in possession of the land in dispute and hence the suit was not maintainable. He claimed that the land belonged to him and stated that the land does not bear Khasra No. 238 and that it is not situated in the revenue estate of Village Basai Darapur, rather the land in dispute bears Khasra No. 79 and is situated in the revenue estate of Village Shakarpur.

The suit was decreed by the trail court which held that the suit was a simpliciter suit for injunction and thereby the Court has the jurisdiction to find out in which Khasra number the land in dispute falls and stated that the suit land falls in Khasra No. 238 in Village Basai Darapur and is in the possession of the plaintiffs. Aggrieved by this decree, Defendant No.4 filed an appeal. The First Appellate Court held that the claim of Defendant No.4 stands falsified upon his own documents produced by him and passed an interim order on 9.5.1996 wherein the parties were directed to first address the arguments on the issue of jurisdiction. A second appeal was filed by him before the High Court which directed reconstruction of the record of the First Appellate Court on 31.7.2007 as the same was destroyed in an incident of fire. In its judgment dated 25.8.2008, the High Court dismissed the second appeal filed by the appellants herein. Aggrieved by the findings of the High Court, Defendant No. 4 filed an appeal before the Supreme Court.

The learned counsel for the appellants argued that the High Court had dismissed the appeal without framing any substantial question of law which is mandatory in terms of Section 100 of the Civil Procedure Code and submitted that the matter should be remitted back to the High Court for determination of such substantial question of law as framed by the appellants. He further argued that the appeal was decided by the First Appellate Court without dealing with the question of jurisdiction first, hence causing prejudice to the rights of the appellants.

The Court heard the arguments advanced and observed that such substantial questions of law did not arise for consideration by stating:

The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing. The trial court had also not treated issue No. 2 relating to the jurisdiction of the Civil Court as a preliminary issue. Therefore, it cannot be said that any prejudice has been caused to the appellants by not deciding the issue of jurisdiction of the Civil Court in the first instance by the First Appellate Court. (Para 16)

The Court further stated that the Land Revenue Act does not expressly bar the jurisdiction of the Civil Court in respect of boundary disputes. It held:

The said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 of the Code. (Para 19)

The Court was of the view that the High Court did not commit any illegality in not framing any substantial question of law by relying on the judgment of this Court in South Delhi Municipal Corporation & Anr. v. Today Homes and Infrastructure Pvt. Ltd. etc., 2019 SCC Online SC 1052. It stated as under:

The formulation of substantial question of law or re-formulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court. (Para 23)

The present appeal stood dismissed.

Jhanavi M