UMERKHAN versus BISMILLABI @ BABULAL SHAIKH & ORS.

Citation: [2011] 9 S.C.R. 551 · Decided: 28-07-2011 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

[2011] 9 S.C.R. 551 
...,._ 
UMERKHAN 
A 
v. 
BISMILLABI @ BABULAL SHAIKH & ORS. 
(Civil Appeal No. 6034 of 2011) 
I 
JULY 28, 2011 
B 
"t 
[AFTAB ALAM AND R.M. LODHA, JJ.] 
Code of Civil Procedure, 1908 - s. 100 - Second appeal 
- Jurisdiction of the High Court - Held: Second appeal is 
entertainable by the High Court only upon its satisfaction that c 
a substantial question of law is involved in the matter and its 
formulation thereof - However, it is open to the High Court to 
reframe substantial question of law or frame substantial 
.., 
question of law afresh or hold that no substantial question of 
\ 
law is involved at the time of hearing the second appeal - On 
D 
facts, the High Court interfered with the judgment and decree 
of the first appellate court without formulating the substantial 
question of law - Thus, the judgment of the High Court in the 
second appeal is set aside and the matter is remitted back 
to the High Court for consideration afresh. 
E 
The plaintiff-respondent filed a suit for partition and 
separate possession against her brother (1st defendant} 
and her sister (2nd defendant). The trial court decreed the 
, '--.. 
suit declaring that the plaintiff and 2nd defendant were 
entitled to 1/4th share each and 1st defendant was 
F 
entitled to 1/2 share in the suit property. The defendant 
filed the first appeal. The first appellate court set aside 
order of the trial court holding that 1st defendant became 
• 
the owner of the suit property -by adverse possession . 
_,) 
The plaintiff filed a second appeal and the High Court G 
allowed the same. Therefore, 1st defendant-appellant 
filed the instant appeal. 
Allowing the appeal, the Court 
551 
H 
552 
SUPREME COURT REPORTS 
[2011] 9 S.C.R. 
' 'r 
A 
HELD: The very jurisdiction of the High Court in 
hearing a second appeal is founded on the formulation 
of a substantial question of law. The judgment of the High 
Court is rendered patently illegal, if a second appeal is 
heard and judgment and decree appealed against is 
t 
B reversed without formulating a substantial question of 
+ 
law. The second appellate jurisdiction of the High Court 
under Section 100 CPC is not akin to the appellate 
jurisdiction under Section 96 of the Code; it is restricted 
to such substantial question or questions of law that may 
c arise from the judgment and decree appealed against. As 
a matter of law, a second appeal is entertainable by the 
High Court only upon its satisfaction that a substantial 
question of law is involved in the matter and its 
formulation thereof. Section 100 of the Code provides that 
,. 
D the second appeal shall be heard on the question so 
formulated. It is, however, open to the High Court to 
reframe substantial question ot law or frame substantial 
question of law afresh or hold that no substantial 
question of law is involved at the time of hearing the 
E 
second appeal but reversal of the judgment and decree 
passed in appeal by a court subordinate to it in exercise 
of jurisdiction under Section 100 of the Code is 
impermissible without formulating substantial question of 
law and a decision on such question. The constraints of 
') 
Section 100 of the Code and the mandate of the law 
F contained in Section 101 that no second appeal shall lie 
except on the ground mentioned in Section 100, yet it 
appears that the fundamental legal position concerning 
jurisdiction of the High Court in second appeal is ignored 
and overlooked time and again. In the instant matter, 
' 
G unfortunately the High Court interfered with the judgment 
' " 
and decree of the first appellate court in total disregard 
of the legal position. Thus, the impugned judgment of the 
• 
High Court is set aside. The second appeal is restored 
to the file of the High Court for fresh consideration in 
H 
UMERKHAN v. BISMILLABI @ BABULAL SHAIKH & 553 
ORS. 
accordance with law. [Paras 13 .and 19] [558-E,H; 559-A-
A 
C; 560-F-G] 
lshwar Dass Jain (Dead) through LRs. v. Sohan Lal 
(Dead) by LRs. (2000) 1 SCC 434: 1999 (5) Suppl. SCR 24; 
Roop Singh (Dead) through L. Rs., v. Ram Singh (Dead) 
through L.Rs. (2000) 3 SCC 708: 2000 ( 2) SCR 605; Chadat B 
Singh V .. Bahadur Ram and Ors. (2004) 6 SCC 359: 2004 (3) 
Suppl. SCR 298; Sasikumar and Ors. v. Kunnath Che/lappan 
Nair and Ors. (2005) 12 SCC 588: 2005 (4) Suppl. SCR 363; 
C.A. Sulaiman and Ors. v. State Bank of Travancore, Alwayee 
and Ors. (2006) 6 SCC 392: 2006 (4) Suppl. SCR 152; C 
Municipal Committee, Hoshiarpur 

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