ELLANGALLUR Vs. GOPALAN

JUDGEMENT

(1.) Leave granted.

(2.) The appellants filed a suit for recovery of possession based on title of an immovable property. The Trial Court found the title of the appellants proved but at the same time also held the respondents to have perfected their title by adverse possession over the property and hence directed the suit to be dismissed. The first Appellate Court in an appeal preferred by the appellants, while upholding the finding of the Trial Court regarding the title of the appellants, reversed the finding of the Trial Court on the defendants plea of adverse possession and hence decreed the suit. The defendants preferred the second appeal before the High Court. The High Court has set aside the judgment in first appeal and restored the judgment and decree of the Trial Court. A perusal of the judgment of the High Court shows the High Court having re-appreciated the evidence and recorded its own findings. The High Court has not framed any substantial question of law arising for decision in the appeal as contemplated by sub-section (4) and (5) of Section 100 of the C.P.C. (as amended by Act No. 104 of 1976).

(3.) The learned Counsel for the Appellants has submitted placing reliance on two decisions of this Court, namely, Ninge Gowda v. Linge Gowda, (1997) 1 SCC 477 and Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, that non-compliance by the High Court with the provisions of Section 100 of the C.P.C. is fatal and judgment of the High Court moreso when it is a judgment of reversal is liable to be set aside on this short ground alone. It was submitted that unless and until the High Court recorded its satisfaction that a substantial question of law was involved in the case and formulated that question, the High Court did not acquire jurisdiction to hear and dispose of the second appeal on merits and interfere with the judgment of the Court below. A single bench decision of the High Court of Kerala in C.P. Madhavan Nair v. Cheruvot Thazham Nilam Mulleri Parambath Kuttimalu, AIR 1982 Kerala 298, was referred to wherein a local amendment has been noticed which empowered the High Court to interfere with the judgment under appeal even on a question of fact. The High Court has then held that the local amendment had ceased to have applicability to such appeals as were admitted for hearing on or after 1-2-1977, the date on which Section 100, C.P.C. as substituted by Act No. 104 of 1976 came into operation.