Uma Pandey vs Munna Pandey

CIVIL APPEAL NO. 3657 OF 2018 (Arising out of S.L.P.(c) No. 32229 of 2014)

Uma Pandey & Anr. ….Appellant(s)

VERSUS

Munna Pandey & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the plaintiffs against the

final judgment and order dated 16.07.2014 passed

by the High Court of Judicature at Patna in Second

Signature Not Verified Appeal No.255 of 2008 whereby the High Court Digitally signed by ASHA SUNDRIYAL Date: 2018.04.09 16:16:58 IST Reason: dismissed the second appeal filed by the appellants

1 herein in limine and affirmed the judgment/decree

dated 14.07.2008 passed by the 1 st Additional

District & Sessions Judge, Gopalganj in Title Appeal

No. 77/2005/06 of 2007 which arose out of the

judgment dated 12.07.2005 and decree dated

23.07.2005 passed by the Sub-Judge-V, Gopalganj

in Title Suit No. 21 of 1993.

3) The issue involved in the appeal lies in a

narrow compass so also the facts involved in the

appeal are short. They are stated hereinbelow to

appreciate the issue.

4) The appellants are the plaintiffs whereas the

respondents are the defendants in a civil suit out of

which this appeal arises.

5) The appellants and the respondents are

members of one family and are related to one

another.

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6) The appellants filed a civil suit being Title Suit

No.21/1993 against the respondents in the Court of

Sub-Judge V, Gopalganj claiming partition and

separate possession of agriculture lands as detailed

in the schedule appended to the plaint.

7) According to the appellants, the lands were

ancestral in the hands of the parties to the suit and

being members of family, they were entitled to claim

their share in the suit lands qua the respondents

(defendants). It was, inter alia, on this assertion the

appellants filed a suit for partition and separate

possession of the suit land of their separate shares

against the respondents (defendants).

8) The respondents contested the suit and denied

the appellants’ claim in the written statement on

several grounds on facts and in law. Parties went to

trial. The issues were framed. Documents were

filed and oral evidence was adduced.

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9) The Trial Court decreed the appellants’ suit.

The respondents (defendants) felt aggrieved and

filed first appeal. The First Appellate Court allowed

the defendants’ appeal and dismissed the

appellants’ suit. The appellants felt aggrieved and

filed second appeal before the High Court. By

impugned Judgment, the High Court dismissed the

appeal in limine. The High Court held that the

second appeal filed by the appellants (plaintiffs) did

not involve any substantial question(s) of law and

hence it was liable to be dismissed in limine. It is

against this judgment, the plaintiffs felt aggrieved

and filed the present appeal by way of special leave

in this Court.

10) Heard Mr. Manan Kumar Mishra, learned

senior counsel for the appellants. Despite notice,

no one appeared on behalf of respondents.

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11) Having heard the learned counsel for the

appellants and on perusal of the record of the case,

we are constrained to allow the appeal, set aside the

impugned judgment of the High Court and remand

the case to the High Court for deciding the second

appeal filed by the plaintiffs (appellants herein)

afresh on merits on the substantial questions of law

framed by this Court hereinbelow.

12) In our considered opinion, the High Court

erred in dismissing the second appeal in limine on

the ground that it did not involve any substantial

question(s) of law.

13) In our view, the appeal did involve substantial

question(s) of law within the meaning of Section 100

of the Code of Civil Procedure, 1908 (hereinafter

referred to as ‘the Code’) and, therefore, it should

have been admitted for final hearing on the

substantial question(s) of law arising in the case.

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14) It is not in dispute that the defendants

(respondents) filed one

document(EX-A)-(Annexure-P-1 of SLP). This

document was relied on and appreciated by the two

Courts below for deciding the rights of the parties.

The Trial Court decreed the suit and the First

Appellate Court reversed it on appreciating the

evidence including EX-A.

15) It is a settled principle of law that

interpretation of any document including its

contents or its admissibility in evidence or its effect

on the rights of the parties to the Lis constitutes a

substantial question(s) of law within the meaning of

Section 100 of the Code.

16) Whenever such question arises in the second

appeal at the instance of the appellant, it deserves

admission on framing appropriate substantial

6 question(s) on such questions to enable the High

Court to decide the appeal on merits bi-party.

17) In this case, it was all the more reason for the

High Court to have admitted the appellants’ second

appeal because the Trial Court and the First

Appellate Court had taken into consideration the

document - Ex-A for deciding the Lis involved in the

case.

18) In the light of the foregoing discussion, we

cannot concur with the reasoning and the

conclusion arrived at by the High Court as, in our

view, it wrongly dismissed appellants’ second appeal

in limine.

19) In other words, what the High Court ought to

have done at the time of hearing the second appeal

on the question of admission by framing substantial

question(s) of law arising in the case, the said

7 exercise now we have to do it while disposing of this

appeal.

20) In our view, the following substantial

questions of law arise in the second appeal within

the meaning of Section 100 of the Code for its

decision:

1. Whether findings recorded by the first Appellate court on Ex-A for allowing the defendants’ first appeal and, in consequence, reversing the judgment/decree of the trial court is legally and factually sustainable?

2. What is the true nature of Ex-A? Can it be termed as “partition deed” or a document recognizing a factum of partition already effected between the parties in relation to the suit land?

3. Whether Ex-A binds the plaintiff's and, if so, how and to what extent?

4. Whether Ex-A requires registration and, if so, its effect?

5. Since Ex-A was exhibited in evidence without any objection, whether any objection about its admissibility or legality can now be raised by the appellants in second appeal and, if so, its effect?

8 21) In view of the foregoing discussion, the appeal

succeeds and is allowed. Impugned judgment is set

aside. The appeal is remanded to the High Court

for its decision on merits on the substantial

questions of law framed by us.

22) We, however, make it clear that we have not

gone into the merits of the case. The High Court

will accordingly decide the appeal on merits strictly

in accordance with law uninfluenced by any of our

observations.

23) Since the appeal is quite old, we request the

High Court to decide the same preferably within six

months.

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

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

April 09, 2018

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