TaxTMI 
TaxTMI 
2016 (10) TMI 1233
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....unnisa and Syed Hyder Hussaini are wife and husband whereas the respondent no. 1(a) to 1(f) are the legal heirs of one late Haji Mian being mother, wife, sons and daughters respectively. 5. The dispute between the two aforementioned families relates to the ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) bearing S.No.35/5 renumbered as 35/5-C1/A-1 (hereinafter called "the suit-land"). 6. The appellants filed two civil suits being O.S.No. 77 of 1994 and O.S.No 65 of 1995 against Haji Mian and others. The present respondent nos. 1(a) to 1(f) who were later added as party defendants are legal representatives of Haji Mian. 7. So far as O.S. No 77 of 94 is concerned, the appellants (plaintiffs) claimed therein eviction of the respondents from the suit-land. It was alleged that appellant no. 1 being the owner of the suit-land had inducted respondent no.1 (defendant no.1) as her tenant on a monthly rent of Rs. 150/- for a period of three years on the strength of lease deed dated 01.06.1982. It was alleged that contrary to lease conditions and without appellants' consent, the respondent no.1 e....
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.... were in relation to one suit- land and were between the same parties pending in different courts, all the five civil suits were clubbed together for disposal in accordance with law. Parties adduced common evidence in all the five civil suits. 14. By a common judgment and decree dated 22.04.1997, the learned trial judge dismissed three civil suits being O.S.Nos. 53 of 1993, 69 of 1994 and 71 of 1994 filed by the respondents, whereas decreed the appellants' two civil suits being O.S.Nos. 77 of 1994 and 65 of 1995. It was held that respondents in their suits failed to establish their title over the suit- land. It was held that since they failed to establish their title over the suit-land, a fortiori, they are not entitled to claim permanent injunction against the appellants over the suit-land. So far as appellants' two civil suits are concerned, it was held that appellants were able to establish the relationship of landlord and tenant between appellant No.1 and the respondent and hence they are entitled to claim the eviction of the respondents from the suit-land. It was also held that appellants are also entitled to claim the money by way of damages from the respondents for the peri....
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....Procedure. Secondly, his contention was that High Court erred in setting aside the concurrent findings of facts recorded by the two courts below. It was his submission that these findings were binding on the High Court while hearing the second appeal. Thirdly, his contention was that there was no case made out by the respondents (who were appellants before the High Court in second appeals) before the High Court for remanding the cases to the trial court for de novo trial in the suits. It was urged that firstly it was nobody's case much less of the appellants before the High Court that the trial in the suits was unsatisfactory or/and that the parties were not afforded full opportunity to present their case; secondly, this objection was neither raised by the appellants before the first appellate court and nor before the High Court; thirdly, no question of law was framed by the High Court on the issue of remanding the cases to the trial court. In these circumstances, the remand order is wholly without jurisdiction and fourthly, learned counsel contended that both trial court and the first appellate court on proper appreciation of evidence having rightly held that the respondents f....
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....he jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722) 10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At t....
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....stantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not....
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.... appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC. 25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material. 26. To say the least th....
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....nt and clinching documentary evidence? 6) Whether the finding of the lower appellate Court that P.W.6 (plaintiff's son) did not vacate the site even after the lease period of the site S.No.35/5 C1A19 of D.I is not based on any evidence except the word of D.W.2 (no witnesses wee examined) and the conclusion reached by it that the suit site in O.S.No.53/93 and the leased site are the same, is contrary to the evidence on record? 7) Whether the lower appellate Court has erred in law in its failure to consider the admission of D.W.2 himself that his father encroached into the plaintiff's site and was issued B-Memos and paid the penalty, which conclusively establishes that the two sites are different and not one and the same? 8) Whether the very approach of the lower appellate Court is essentially erroneous and its findings are liable to be set aside (AIR 1992 S.C., 1604)? 27. In our considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantia....
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....il suits. In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court. 32. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds? 33. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with ....