100 CPC | Second Appeal Is Not a Third Trial on Facts: Allahabad High Court

"To Be ‘Substantial’, A Question of Law Must Be Debatable and Arise From Pleadings" —  In a firm reiteration of the narrow compass of Section 100 of the Code of Civil Procedure, 1908, the Allahabad High Court has dismissed a 45-year-old Second Appeal, holding that misconceived and improperly framed questions cannot be elevated to the status of “substantial questions of law.”

Justice Saurabh Shyam Shamshery affirming concurrent findings that the plaintiff was merely a licencee for one Fasli year and thereafter a trespasser. The Court refused to reopen factual findings, emphasizing that a second appeal cannot be converted into a fresh factual adjudication.

"Questions Starting With ‘Because’ Cannot Substitute ‘Whether’" — Improper Framing Fails Section 100 Test

At the threshold, the Court examined the so-called substantial questions of law framed in the memo of appeal. Noting a fundamental defect in drafting, the Court observed:

"Court finds that the word used in the above referred questions of law are not in proper format, since it starts with the word ‘Because’ whereas it ought to have started with ‘Whether’."

While counsel sought reformulation, the Court proceeded to test whether the issues actually satisfied the legal standard laid down by the Supreme Court in Chandrabhan (Dead) through Lrs. v. Saraswati & Ors., 2022 SCC OnLine SC 1273.

Reproducing the governing principle, the Court reiterated:

"To be ‘substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case..."

The High Court emphasized that a substantial question must arise from pleadings, emerge from sustainable findings of fact, and materially affect the rights of the parties. An entirely new point raised without foundational pleadings cannot qualify.

"Mere Lagan Receipts Do Not Create Tenancy" — Licence for One Fasli Year, Thereafter Trespass

The plaintiff had filed a suit for permanent injunction in 1971 claiming that Nagar Mahapalika Kanpur had orally inducted him as a tenant on yearly Lagan basis for agricultural purposes. He relied upon Lagan receipts but produced no Patta or lease deed.

The defendant municipality categorically pleaded that the plaintiff was granted permission to cultivate the land only for 1372 Fasli and that thereafter he continued as an unauthorized occupant. The Written Statement clearly asserted:

"That the plaintiff is a trespasser and is not entitled to claim any injunction. The plaintiff has no right to claim any interest over the land in dispute. The suit is barred by section 41 of the Specific Relief Act."

The Trial Court, by judgment dated 29 May 1976, held that the plaintiff entered into possession with permission for one year only and was therefore a licencee, not a tenant. The First Appellate Court affirmed these findings on 18 December 1980.

Before the High Court, it was argued that payment of Lagan established tenancy rights. The Court rejected this contention, observing:

"only on basis of Lagan receipts, plaintiff cannot be considered to be a tenant. Their possession at best can be termed as licencee for a particular period and thereafter his possession was as a trespasser."

The absence of a lease document proved fatal to the tenancy claim.

"No Evidence Beyond Pleadings" — Asami Rights Cannot Be Invented in Second Appeal

A central argument in the Second Appeal was that the plaintiff was an “Asami” and that courts below ignored this alleged status.

The High Court decisively rejected this submission. It noted that the plaintiff never pleaded that he was an Asami; his consistent case was that he was a tenant. The Court clarified:

"Plaintiff has never declared himself to be an Asami. His case was that he was a tenant..."

Although the First Appellate Court had observed that at best he could have been an Asami for one Fasli year, this was not a pleaded case nor a declaration of continuing rights.

Reaffirming settled procedural law, the Court stated:

"It is also well settled that no evidence could be led beyond pleadings."

Relying on Srinivas Raghwendrarao Desai (Dead) by Lrs. v. V. Kumar Vamanrao @ Alok & Ors., 2024 INSC 165, the Court held that legal rights cannot be constructed in appellate proceedings without foundational pleadings.

"Admission Must Be Clear, Unequivocal and Unconditional" — Order XII Rule 6 CPC Not Attracted

The appellant further contended that the suit should have been decreed on admission under Order XII Rule 6 CPC.

The Court rejected this plea, clarifying the strict standard required:

"admission if any at behest of defendant is not an ‘admission’ as required under Order 12 Rule 6 Code of Civil Procedure,1908 as it should be clear, unambiguous, unequivocal and unconditional, which is not the case in hand."

There was no clear admission of Asami or tenancy rights in the Written Statement. Hence, no decree could follow on admission.

"Concurrent Findings Cannot Be Disturbed Unless Perverse" — Supreme Court Line of Authority Followed

The High Court further observed that it found no perversity, no misapplication of law, and no ignoring of material evidence by the courts below.

Referring to Hero Vinoth v. Sheshammal, Murthy v. C. Saradambal, and Rabindranath Panigrahi v. Surendra Sahu, the Court concluded that none of the recognized exceptions permitting interference with concurrent findings were attracted.

Testing the case on the anvil of Chandrabhan, the Court held that the framed questions were not substantial questions of law within the meaning of Section 100 CPC.

The Allahabad High Court dismissed the Second Appeal, vacated interim orders, and affirmed the concurrent judgments of the Trial Court and First Appellate Court.

The ruling serves as a reminder that Section 100 CPC is not an avenue to reargue facts or introduce unpleaded rights. A substantial question of law must be rooted in pleadings, materially affect rights, and either present a debatable legal issue or demonstrate violation of settled law. Absent these conditions, the High Court will not interfere with concurrent findings — even in litigation that has endured for nearly half a century.

Date of Decision: 25 February 2026