NAZIR MOHAMED versus J. KAMALA AND ORS.

Citation: [2020] 7 S.C.R. 763 · Decided: 27-08-2020 · Supreme Court of India · Bench: NAVIN SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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NAZIR MOHAMED
v.
J. KAMALA AND ORS.
(Civil Appeal Nos. 2843-2844 of 2010)
AUGUST 27, 2020
[NAVIN SINHA AND INDIRA BANERJEE, JJ.]
Code of Civil Procedure, 1908:
s.100 – Second appeal – Nature and scope of – Held: A right
to appeal is conferred by a statute – If the statute confers a limited
right of appeal, the Court cannot expand the scope of the appeal –
s.100 restricts the right of second appeal only where a substantial
question of law is involved – In order to be substantial, the question
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 rights of the parties, if answered either
way – Whether a question of law is substantial and whether such
question is involved in the case is to be determined on the facts and
circumstances of the case – A finding of fact is not open to challenge
in second appeal even if the appreciation of evidence is palpably
erroneous and finding of fact is incorrect – An entirely new point
raised for the first time, before High Court is not a question involved,
unless it goes to the root of the matter – In the facts of the present
case, no substantial questions was involved in the second appeals
and hence High Court wrongly entertained the second appeals.
Adverse Possession:
Suit for declaration of ownership and for possession of the
suit premises – Alleging that the suit premises was let out to the
defendant – Written statement denying the tenancy and claiming
absolute ownership – Trial Court dismissed the suit – First Appellate
Court partly decreed the suit holding that the plaintiff was entitled
to ownership of half portion of the suit property which his father
had purchased and not the other portion which was purchased by
father of the defendant – However, First Appellate Court denied
decree of possession to the plaintiff on the ground that the plaintiff
failed to prove the tenancy and that the defendant was in occupation
[2020] 7 S.C.R. 763
763
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SUPREME COURT REPORTS
[2020] 7 S.C.R.
of the premises for a long time – Second appeal by both the parties
– High Court dismissed the appeal of defendant and allowing the
appeal of the plaintiff granted him relief of recovery of possession
– Appeal to Supreme Court – Held: A person in possession, in the
assumed character of owner has a perfectly good title against all
but the rightful owner – But if the rightful owner does not assert his
right of possession, within limitation period, his right is extinguished
forever, and the possessory owner acquires an absolute title – The
conclusion of the First Appellate Court did not warrant interference
– High Court could not have reversed the finding of First Appellate
Court and allowed relief of recovery of possession when the
defendant was in complete possession of the suit premises, as owner
with absolute rights for over 28 years.
Maxims:
‘Possession follows title’ – Applicability of – Held: The maxim
is limited in its application to property – The presumption that
possession must be deemed to follow title, arises only where there is
no definite proof of possession by anyone else – A person claiming
decree of possession needs to establish his entitlement to get such
possession and also establish that his claim is not barred by law of
limitation.
Words and Phrases:
‘Mesne profit’ – Meaning of.
Allowing the appeals, the Court
HELD: 1.1 A second appeal, or for that matter, any appeal
is not a matter of right.  The right of appeal is conferred by statute.
A second appeal only lies on a substantial question of law. If statute
confers a limited right of appeal, the Court cannot expand the
scope of the appeal. It was not open to the Respondent-Plaintiff
to re-agitate facts or to call upon the High Court to reanalyze or
re-appreciate evidence in a Second Appeal. [Para 25][777-B-C]
1.2 Section 100 of the CPC, as amended, restricts the right
of second appeal, to only those cases, where a substantial question
of law is involved. The existence of a “substantial question of
law” is the sine qua non for the exercise of jurisdiction under
Section 100 of the CPC. [Para 26][777-C-D]
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1.3 There was no question of law involved in either of the
second appeals, far less any substantial question of law, to warrant
inference of the High Court in the Second Appeal filed by the
defendant. [Para 28][777-F]
1.4 To be “substantial”, a question of law must be debatable

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