Ram Chand (D) Th Lrs. vs Udai Singh @ Daya Ram .

CIVIL APPEAL Nos. 11107-11108 OF 2017 (Arising out of S.L.P.(C) Nos.25664-65 of 2013)

Ram Chand(Deceased) Through L.Rs. & Ors. ….Appellant(s)

VERSUS

Udai Singh @ Daya Ram & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) These appeals are filed by the legal

representatives of original plaintiff against the

common final judgment and order dated 21.11.2011

passed by the High Court of Punjab & Haryana at

Chandigarh in Regular Second Appeal Nos. 1791 Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2017.08.30 15:49:21 IST Reason: 1 and 2037 of 1980 whereby the High Court

dismissed RSA No.1791 of 1980 filed by the

appellants (plaintiff) and allowed R.S.A. No.2037 of

1980 filed by the respondents (defendants).

2) We herein set out the facts, in brief, to

appreciate the issue involved in these appeals.

3) The dispute in the suit out of which this

appeal arises relates to agricultural lands comprises

of Khewat No. 280 Khata No. 350 Rect. No. 258

Killa No. 25 area 5 kanal, Rect. No. 295 Killa No. 5

area -01 marla, Rect. No. 214 Killa 11 area 5 kanals

12 marlas, killa no. 12 area 8 kanal, Rect. No. 255

Killa No. 6/1 area 2 kanals 10 marlas, 6/2 area 2

kanals 17 marlas, 7/1 area 4 kanals 3 marlas, 7/2

area 3 killa 17 marlas Killa 8 area 8 kanals, Rect.

258 killa 16 area 6 kanals 6 marlas, killa 24 area 8

kanals, total area 54 kanals 6 marlas situated in

2 Patti Bedha, Hodel (hereinafter referred to as the

"suit land").

4) The plaintiff (Ram Chand) since dead and now

represented by his legal representatives (appellants

herein) filed a civil suit out of which these appeals

arise against the respondents (defendants) claiming

right, title and interest in the suit land. The plaintiff

(appellants) also claimed possession of the suit

lands from the defendants (respondents).

5) The claim of the plaintiff, in substance, is

based on the law of inheritance. It is, inter alia,

alleged in the plaint that the suit land originally

belonged to one Hiri, son of Bhondu and on his

death, the plaintiff claimed his right, title and

interest in the suit land as one of the nearest heirs

of the deceased Hiri through inheritance.

6) The defendants (respondents) denied the claim

of the plaintiff and further denied his right to claim

3 the ownership of the suit land by inheritance

through Hiri. The defendants then claimed

ownership over the suit land on the basis of a Will

said to have been executed in their favour by the

erstwhile owner of the suit land.

7) So the basic question, involved in the suit, was

who is the owner of the suit land-plaintiff or the

defendants.

8) By judgment/decree dated 24.12.1979, the

Trial Court (sub-Judge, 1st Class), Palwal decreed

the suit against the defendants for possession and

held that the plaintiff would be entitled to get only

symbolic possession of the suit land because the

suit land was in possession of Ram Narain

(defendant No.5) as tenant.

9) Being aggrieved by the said judgment/decree,

both the parties filed first appeals before the District

4 Judge, Gurgaon being Civil Appeal Nos. 5 and 6 of

1980.

10) The District Judge, by his judgment and order

dated 09.04.1980, dismissed both the appeals and

affirmed the judgment/decree passed by the Trial

Court.

11) Against the said judgment, both plaintiff and

defendants filed second appeals before the High

Court being R.S.A. No. 1791 of 1980 (filed by the

plaintiff) and R.S.A. No.2037 of 1980 (filed by the

defendants).

12) The High Court, by the impugned common

judgment and order dated 21.11.2011, dismissed

R.S.A. No.1791 of 1980 filed by the plaintiff and

allowed R.S.A. No.2037 of 1980 filed by the

defendants. As a result, the suit came to be

dismissed.

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13) Against the said judgment, the legal

representatives of the original plaintiff, filed these

appeals by way of special leave before this Court.

14) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow the appeals and while

setting aside the impugned judgment, remand the

case to the High Court for deciding the second

appeals afresh in accordance with law as indicated

below.

15) The reasons to remand the case to the High

Court has occasioned due to the reason that the

High Court while disposing of second appeals filed

by the both parties did not frame any substantial

question of law as is required to be framed at the

time of admission of the second appeal and

proceeded to allow the appeal filed by the

6 defendants and dismiss the appeal filed by the

plaintiff.

16) A three Judge Bench of this Court in Santosh

Hazari vs. Purushottam Tiwari (Deceased) by

L.Rs., (2001) 3 SCC 179 had examined the scope of

Section 100 of the Code of Civil procedure, 1908

(hereinafter referred to as “the Code”). Justice R. C.

Lahoti (as His Lordship then was) speaking for the

Bench laid down the following proposition of law in

Para 9:

“9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait,(1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722.)”

17) His Lordship then in Paras 10 to 14 succinctly

explained the meaning of the words "substantial

7 question of law” and "question of law" and held that

in order to admit the second appeal, what is

required to be made out by the appellant being sine

qua non for exercise of powers under Section 100 of

the Code, is existence of "substantial question of

law" arising in the case so as to empower the High

Court to admit the appeal for final hearing by

formulation on such question. In the absence of

any substantial question arising in appeal, the same

merits dismissal in limine on the ground that the

appeal does not involve any substantial question of

law within the meaning of Section 100 of the Code.

18) Perusal of the impugned order shows that no

such question was formulated except to note the

submissions of learned counsel for the appellants

that it so arises but not beyond that as to whether it

actually arises and, if so, what is that question.

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19) In the light of foregoing discussion and keeping

in view the law laid down in the case of Santosh

Hazari (supra), we are of the considered view that

the impugned order is not legally sustainable and

thus liable to be set aside.

20) As a result, the appeals succeed and are

allowed. Impugned order is set aside. The case is

remanded to the High Court for deciding the second

appeals afresh in accordance with law keeping in

view the law laid down in Santosh Hazari (supra).

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

August 24, 2017

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