Nazir Mohamed vs J.Kamala And Ors.

By – Devanshi Srivastava

In The Supreme Court of India

NAME OF THE CASE     Nazir Mohamed vs J.Kamala And Ors.
CITATION     Civil Appeal Nos. 2843-2844 of 2010
DATE OF THE CASE    August 27, 2020
APPELLANT     Nazir Mohamed
RESPONDENT    J. Kamala and Others
BENCH/JUDGE    Navin Sinha And Indira Banerjee, JJ.
STATUES INVOLVED    Civil Procedure Code, Limitation Act, 1963
IMPORTANT SECTIONS AND ARTICLES    Section 100 of the Civil Procedure Code, Section 3 of the     Limitation Act, 1963,  Part V of the Schedule to the      Limitation Act, 1963-Articles 64 and 65

Abstract

Substanitiety in the dimension of Law is important in determining the question of law. The Courts have to adjudge the matter on the basis of the substantive question of law and not merely based on facts of the case and circumstances. The High Courts cannot formulate a Second Appeal barely on grounds of non-essential facts or questions of law. The fundamental factor determining whether the question of law is substantive or not is whether it is in consonance with the set laws or not. It is the legality of the circumstances under the factual situations which determine the Substantive question of law.

The case deals with the grounds on basis of which a Second Appeal is formulated by the High Court. The High Courts do not have the jurisdiction to handle or hear a Second Appeal in any case on the basis of a non-significant question of law. The Court of Law does not possess the authority to expand the scope of the appeal. There does not arise any question of right in any kind of appeal. The power of the Court is limited to working under the substantive law questions under Section 100 of the Civil Procedure Code.

Introduction

The case revolves around the two Appeals filed by the Appellant and the Respondent. The matter of the case was first held by the Trial Court, whose verdict of  22nd January 1998 caused the Aggrieved Respondent-Petitioner to file the First Appeal in the Kumbakonam which was the First Appellate Court.

The decision of the First Appellate Court of 17th September, 1999 thereby, aggrieved the Appellate-Defendant to file for a Second Appeal in the Madras High Court. Following the same, Respondent-Petitioner also filed a Second Appeal in the Madras High Court presenting the grievance.

The Appeals here deals with the issue for the claim of the ownership of the property between the Appellant and the Respondent.

Background of the Case

As per Section 100 of the Civil Procedure Court, the High Court has the jurisdiction to adjudge on the matter of the Second Appeal on the basis of Substantial Question of Law. As a matter of fact, the High Court of Madras focused more on the question of facts rather than the question of law which was paramount in nature.

The debate over ‘Substantial question of law’ depends on the significant findings of the Court. Here, the Respondent resided in the premises of which the ownership is claimed by the plaintiff. The substantive question of law depends on the foundation of claims made by both parties. The High Court erred in its Judgement in deciding upon the case on the basis of strengthening facts and statutes rather than weakened premises.

Facts of the Case

The plaintiff in the specific case is the Respondent while the defendant is the Appellant. It is hereby noted that the Appellant claims to be the rightful owner of the premises at  Mela Senia Street, Aduthurai, Tamil Nadu. The Appellant emphasizes that Appellant’s father bought the property under a fair and valuable consideration through a duly verified deed of sale on 17th February 1938 and thereby, alleges to be the rightful owner of the premises and not a tenant.

On the other hand, the Respondent filed a suit in 1994 in the District Court claiming for the ownership of the premises along with a direction to the Defendant to to transfer the possession of the premises additionally with the accruing charges of Rs. 900/- as rent and the future profits as well.

In the suit filed, it is claimed that the father of the Respondent purchased the premises on the basis of a registered deed sale on 17th September 1940. The premises were given out to the father of the Appellant M. Abdul Nazir, after whose death the Appellant was made the in-charge of paying the rent of Rs. 25 accrued with the Panchayat Taxes.

The Appellant had been attempting to claim the title of the property through the usage of ‘Patta’ to the Tahsildar Natham and also had an unpaid balance of Rs. 1225/- by the time of 1994. Thus, in claiming the ownership of the premises and the rightful sum of money the Plaintiff-Respondent filed the suit which was first dealt with by a Trial Court.

Issues raised before the Court of Law

  1. The appeal was raised before the Hon’ble Supreme Court of India whether the High Court of Madras had the jurisdiction to formulate a ‘question of law’ rather than a ‘substantial question of law’ while deciding on a Second Appeal.
  2. The appeal was raised before the Hon’ble Supreme Court of India as to what significantly constitutes as a “Substantial Question of Law” for the High Courts to formulate a second appeal.

Arguments from the side of the Appellant

  •  The Counsel of the Appellant-Defendant  appealed that the appellant was not a tenant of the premises rather the owner of the purchased property which the father of the Appellant-Defendant under a fair and just consideration through a certified deed sale dated 17th February, 1938. Thus, the Appellant-Defendant claims to be the rightful owner of the property.
  • It was further asserted by the Counsel of the Appellant-Defendant that tax of the premises has over all the time been issued in the name of the Father of the Appellant-Defendant. The receiver of the tax receipt for the premises has been duly in the name of the Appellant-Defendant’ father M.Abdul Nazir.
  • The Counsel for the Appellant-Defendant, further claims that the Appellant had the rightful ownership of the property from his father  under a Registered Deed of Release of 14th March, 1966. The Appellant had received the rightful ownership of the premises under a verified deed.
  • It is further contended that Appellant-Defendant has had the absolute and complete ownership rights of the premises after the transfer of the premises to the Appellant from his father. The Appellant claims to be not a tenant but the owner of the premises.

Arguments from the side of the Respondent

  • The Counsel of the Respondent- Plaintiff claims that the Respondent is the rightful owner of the premises. It is claimed that the father of the Plaintiff-Respondent had rightfully purchased it through a registered deed of 17th September, 1940.
  • It is further asserted that the premises had been let out to the father of the Appellant-Defendant as a tenant.
  • The death of M. Abdul Nazri, the father of the Appellant made the Appellant as the tenant. The tenancy was transferred in the name of the Appellant at a price of Rs. 25 as a rent accrued with a panchayat tax.
  • The Counsel for the Respondent-Plaintiff also claims that the Appellant attempted at setting up a title by negotiating with the Tahsildar Natham through a ‘Patta’. It is further claimed that the Appellant is supposed to have a balance of Rs. 1225 till February, 1994. The Respondent is claiming Rs. 900 as a rent or occupation charge for the three years.

Related Provisions

  • Section 100 of the Civil Procedure Code (CPC) which provides for a Second Appeal, as amended by the Civil Procedure Code (Amendment) Act, 104 of 1976- “Second Appeal.—
  •  (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
  • (2) An appeal may lie under this section from an appellate decree passed ex parte.
  • (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
  • (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
  • (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”

  • The period of limitation for suits for recovery of immovable property is prescribed in Part V of the Schedule to the Limitation Act, 1963, and in particular Articles 64 and 65 thereof set out hereinbelow for convenience:— “PART V.— Suits Relating to Immovable Property. Description of suit Period of Limitation Time from which period begins to run Section 64-  For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years. The date of dispossession. Section 65. For possession of immovable property or any interest therein based on title; Explanation.- For the purposes of this article –
  • (a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
  • (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
  • (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.”
  • A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act “bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.”

Judgement

The Trial Court at the First Suit filed, made a Judgement on 22nd January 1998. The Trial Court dismissed the suit, declaring that the Respondent-Plaintiff had failed to verify any documents in the Court of Law that the suit property was purchased by the father of the Respondent and was thereby not entitled to any compensation or demanded money in the suit.

The First Appellate Court ordered a Judgement on 17th September 1999 by sidelining the order of the Trial Court. The First Appellate Court held that the Respondent-Plaintiff is empowered to half of the suit premises and the accruing money demanded rent or occupation for half of the premises owned by the Respondent-Plaintiff. It also made clear that the Respondent-Plaintiff is not authorized to gain the recovery of the possession since it was restrained under the Limitation Act, 1963. It even held that the Appellant-Defendant is liable to pay the amount of sum known as “package income” derived from the usage of premises of the Respondent-Plaintiff. 

The Madras High Court dismissed the second appeal of the Appellant-Defendant and permitted the Second Appeal of the Respondent-Plaintiff. It also set aside the judgement of the First Appellate Court. The part of the First Appellate Court’s decision that denied the possession of recovery was sidelined and the Court declared that the respondent can acquire the said property only after examination and identification by an Advocate Commissioner. The other aspects of the decision of the First Appellate Court were accepted.

The two-Judge Bench of the Supreme Court of India comprising Justice Navin Sinha And Justice Indira Banerjee, JJ. held that a Second Appeal can only be based on the grounds of ‘Substantial question of law’ and not merely a question of law. The High Courts have no power to elongate the scope of the second appeal by basing it on non-essential facts. It held that an Appeal is not a matter of right. The Respondent-Plaintiff had no power to call upon the High Court for the perusal of any factual evidence in the second appeal. It was asserted that there was no tinge of any question of law, let alone any ‘substantial question of law’ in the second appeal of the Appellate-Defendant.

The fundamentals of determining whether the question of law is substantive or not were laid down by a Constitution Bench in the case of Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.,  the Court declared that “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 be a substantial question of law.”

For a question of law to be a substantial question of law, it has to be based on the factual findings of the Court along with the structure of pleadings in the case in hand. The decision should be made keeping in light the question of law as ‘just and proper for the verdict of the case.

“A Second Appeal cannot be heard or dealt with when no question of law or fact had been analyzed by the Trial or the First Appellate Court” held in Panchagopal Barua v. Vinesh Chandra Goswami. “When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law,” as held by this Court in Biswanath Ghosh v. Gobinda Ghose. The legislation of a substantial question of law in a second appeal is important to be determined on the basis of the facts of the cases and thus, only the bare concept of the grounds specified in the Memorandum of the Second Appeal does not fulfil the decree of Section 100 of CPC.

Therefore, the Supreme Court in its judgement highlighted the error of the High Court in giving out a verdict on the basis of errand question of law and not a substantive question of law, which penultimately renders the decision of the High Court void. Thus, the Supreme Court allows the appeals and reinstates the order of the First Appellate Court.

Conclusion

The High Courts have to base their judgement in second appeals on the basis of the ‘substantive question of law’ and not on the basis of insignificant details which are absolutely invalid. The formulation of wrong documents would lead to a flawed principle of law.

Thus, the High Courts can only deal with the Second Appeal, when the findings of the court in regards to facts and provisions of the case in hand are sufficient enough to formulate a “a substantive question of law”.