Case Note & Summary
The dispute pertained to a plot of land in Jorhat town, Assam, where the original plaintiff, Durga Charan Barua, predecessor-in-interest of the appellants, had allowed the respondent, Umesh Chandra Goswami, permissive use of the land for two years from 1 June 1963 to erect a temporary structure for residence. The respondent failed to vacate after the expiry of the period, leading the plaintiff to file a suit for khas possession and compensation. The defendant resisted the suit, claiming he occupied the land under an oral contract of purchase and had paid Rs. 7,860 as sale price. He also filed a separate suit for specific performance of the alleged oral agreement. Both suits were clubbed and tried together. The trial court decreed the plaintiff's suit for possession and dismissed the defendant's specific performance suit, finding the oral agreement story concocted. The first appellate court affirmed the trial court's findings. The respondent then filed two second appeals before the High Court. The High Court dismissed the second appeal arising from the specific performance suit, upholding the concurrent findings. However, the High Court allowed the second appeal arising from the possession suit, granting the benefit of Section 60(b) of the Indian Easements Act, 1882, holding the licence irrevocable on principles of justice, equity and good conscience, based on a report of the local commissioner that the structure was permanent. The appellants challenged the High Court's order, contending that the second appeal was not maintainable as no substantial question of law was involved and that the plea under Section 60(b) had not been raised in the lower courts. The Supreme Court examined the scope of Section 100 CPC as amended by the Amendment Act of 1976. It held that the High Court's jurisdiction in second appeal is confined to cases involving a substantial question of law, which must be stated in the memorandum of appeal and formulated by the Court. The High Court had neither formulated any substantial question of law nor kept in view the legislative intent of the amendment. The Court observed that the respondent was seeking to raise an entirely new plea in second appeal, not supported by pleadings or evidence, which was impermissible. The Supreme Court concluded that the High Court's approach was improper and set aside its judgment, restoring the decree of the trial court as affirmed by the first appellate court. The appeal was allowed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - The High Court's jurisdiction in second appeal after the 1976 amendment is confined to appeals involving a substantial question of law, which must be stated in the memorandum of appeal and formulated by the High Court. The High Court failed to formulate any such question and treated the second appeal as a first appeal, contrary to legislative intent. Held that the High Court's approach was improper and the second appeal was not maintainable. B) Civil Procedure - New Plea in Second Appeal - Not Permissible - Code of Civil Procedure, 1908, Section 100 - An appellant is not allowed to set up a new case or raise a new issue in second appeal unless it is a jurisdictional issue, not supported by pleadings or evidence. The respondent raised the plea of irrevocable licence under Section 60(b) of the Indian Easements Act, 1882 for the first time in second appeal, which was not pleaded or canvassed before the subordinate courts. Held that the High Court was not justified in entertaining such a new point. C) Civil Procedure - Concurrent Findings of Fact - Interference in Second Appeal - Code of Civil Procedure, 1908, Section 100 - The trial court and first appellate court had concurrently found that the oral agreement to sell was false and that possession was permissive. The High Court set aside these concurrent findings without demonstrating any substantial question of law. Held that the High Court exceeded its jurisdiction under the amended Section 100 CPC.
Issue of Consideration
Whether the High Court erred in allowing the second appeal by granting benefit of Section 60(b) of the Indian Easements Act, 1882 without formulating a substantial question of law as required by amended Section 100 CPC and by entertaining a new plea not raised in lower courts.
Final Decision
The Supreme Court allowed the appeal, set aside the judgment and order of the High Court dated 12.8.1988 in Second Appeal No. 85/79, and restored the judgment and decree of the trial court as affirmed by the first appellate court, decreeing the plaintiff's suit for khas possession and dismissing the defendant's suit for specific performance.
Law Points
- Second appeal jurisdiction confined to substantial question of law under Section 100 CPC
- High Court must formulate substantial question of law
- New plea cannot be raised for first time in second appeal
- Concurrent findings of fact not to be disturbed absent substantial question of law
- Section 60(b) Indian Easements Act claim cannot be raised for first time in second appeal
