Libertatem Magazine

SC Reiterates that High Courts Must Discuss Questions of Law Before Allowing the Second Appeal

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The present case arises from a dispute of possession of a premise wherein the Supreme Court held that the High Court must look into the bigger questions of law before allowing any Second Appeal.

Brief facts of the case

This appeal arises from a judgment that dismissed the Second Appeal filed by the Appellant but allowed the one by the Respondent. The order of the First Appellate Court was set aside to the extent of Respondent’s claim to a decree of recovery of possession of the suit premise.

Aggrieved by this, the Appellant approach this Court.

The said case pertains to the idea of ownership and possession of the immovable property. Both parties claim to be owners of the premise. The Respondent claims that the Appellant is his tenant and has also defaulted on the payment of rent. He seeks to recover the same and prays for a declaration of ownership of the property.


The Appellant asserts that the tax of the premise is assessed in the name of his father. He also contended that he received the premise from his father under a Deed of Release dated 14.3.1966. He has since enjoyed the premise with absolute rights.

Further, he argues that there was no question of law involved in either of the second appeals, far less any larger question of law, to warrant an inference of the High Court in the Second Appeal filed by the Respondent.

Respondent’s main claim was based on the assertion that one Rajagopala Pattar who had purchased the suit premises in a Court Auction had sold the said premises to the Respondent’s father in 1940. But he did not produce any documents to prove the same.

Court’s Observations

The Court observed that the HC while hearing the Second Appeal did not take note of the question of law. They opined that the two questions framed by the HC are not questions of law, much less large. They stated that there was no controversy before the High Court about the interpretation or legal effect of any document. There was also no wrong application of a principle of law that might have given rise to a question of law. There was no debatable issue before the High Court that was not covered by settled principles of law or precedents.

Further, they said for a question to be a question of law involved in the case, its foundation must be laid in the pleadings. Plus, it should emerge from the sustainable findings of fact, arrived at by Courts of facts. It also must be necessary to decide that question of law for a and proper decision of the case. A point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.

The Court then summarized the principles governing Section 100 of CPC i.e. the provision for the second appeal.

Moreover, the person who claims a decree of possession has to establish his entitlement to the same. He must show that he is not barred by the laws of limitation. Further, he must prove that he did have possession before the alleged trespasser got possession. The maxim possession follows title is applicable only when there is no definite proof of possession of the property by anyone else. In this case, it is admitted that the Appellant is in the possession and not the Respondent.

The Court cited Section 3 of the Limitation Act. It provides that the Court is obligated to dismiss any suit instituted after the expiry of the period of limitation.

The plaint did not disclose when the Appellant or his predecessor took possession of the premise. Hence, giving the Respondent the relief of recovery of possession was wrong. The High Court could not have allowed it when the plaint was silent about the date of possession. 

More so, when the Appellant had pleaded that he had been in complete possession of the suit premises, as an owner, with absolute rights, ever since 1966. 

Court’s Order

The division bench allowed the appeals. They set aside the High Court’s judgment and order to the extent of the Second Appeal. The decree of the First Appellate Court is restored. is now on Telegram. Follow us for regular legal updates and judgments from the court. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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