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SUPREME COURT OF INDIA
R. Banumathi, A.M.Khanwilkar, JJ.
D. N. Joshi (D) Thr. LRs. & Others. – Appellants
Versus
D.C. Harris & Another. – Respondents
CIVIL APPEAL NO 6139 OF 2009
Decided On : 03-07-2017
(b) Code of Civil procedure, 1908 – Section 100 and Order XLI, Rule 11 – U/s 100 High Court is obliged to formulate substantial question of law for its determination – Instantly High Court not framing any substantial question of law leaving it to be done at the time of hearing of the appeal – Appellants-defendants neither challenging this order nor insisting before High Court to formulate substantial questions of law before hearing of the second appeal – High Court formulating substantial question of law before hearing – Held, section 100 substantially complied. (Para 22, 23)
(1999) 6 SCC 35; (2009) 5 SCC 264; (2014) 11 SCC 605; (2015) 16 SCC 763; (2016) 10 SCC 315 – Relied upon
© Code of Civil Procedure, 1908 – Section 100 – Trial court and first appellate court erroneously appreciating the facts – High Court appreciating the facts in right perspective – Rightly relying on its earlier decision upheld by Supreme Court between the same landlord and another tenant regarding the same premises – No infirmity. (Para 25, 27)
(d) Mohammadan Law – Gift – Essential requirements – Tenants not challenging sale deed based on the gift – Donor not requesting tenants to attorn to the donee – Immaterial – Transfer of Property Act, 1882 – Section 129. (Para 27)
(2011) 5 SCC 654; (2015) 13 SCC 13 – Relied upon
Facts of the case:
The predecessor in title of the respondents-plaintiffs had filed a suit in respect of the House Property. The predecessor in title of the respondents had purchased the said house from one Zamir Ahmad. The predecessor in title of the appellants (defendant) was inducted as a tenant in the said premises during the life time of the previous owner, Akhtari Begum, who died in 1954.
The respondents claimed that the suit property was gifted by Akhtari Begum to her brother Zamir Ahmad by way of a gift deed dated 31.05.1949.
After purchasing the suit property from Zamir Ahmad by way of a sale deed the respondents’ predecessor in title demanded rent for the suit premises from the defendant (predecessor in title of the appellants). Since the defendant denied the title of the plaintiff, suit for eviction as also for arrears of rent and damages was filed by the plaintiff against the defendant.
The said suit was dismissed.
The judgment of the trial court came to be affirmed in appeal.
The respondents filed a second appeal before the High Court of Judicature at Allahabad in 1974 which was ultimately admitted by High Court at Allahabad.
After establishment of the High Court of Uttarakhand at Nainital, the second appeal stood transferred to that High Court.
An application for amendment of the second appeal was filed before the High Court of Uttarakhand by the respondents (appellants in the said appeal) for adding substantial questions of law.
The High Court allowed the application for amendment and observed that the court would frame questions of law at the time of hearing of the appeal.
This order has not been challenged by the appellants.
The High Court of Uttarakhand, formulated substantial question of law and allowed the appeal filed by the respondents herein.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: Appeal dismissed.
JUDGMENT
A.M.KHANWILKAR, J.
1. This appeal challenges the final judgment and order dated 19.08.2006 passed by the High Court of Uttarakhand at Nainital in Second Appeal No.1269 of 2001 (Old No.1139 of 1974). By the said decision, the second appeal filed by the respondents-plaintiffs was allowed and their suit for eviction has been decreed.
2. The predecessor in title of the respondents-plaintiffs had filed a suit bearing Suit No.52 of 1966 before the Munsif Court, Nainital in respect of the House Property No.51, Mohalla Sakahawat Ganj, Haldwani, consisting of 6 rooms with toilet, one kitchen and two verandahs. The predecessor in title of the respondents had purchased the said house from one Zamir Ahmad. The predecessor in title of the appellants (defendant) was inducted as a tenant in the said premises during the life time of the previous owner, Akhtari Begum, who died in 1954.
3. According to the respondents, the suit property was gifted by Akhtari Begum to her brother Zamir Ahmad (for short “the donee”) by way of a gift deed dated 31.05.1949. In the said gift deed, the donor has clearly stated that:
“………and I (donor) agree that Taheer Ahmad (donee) has acquired title and possession like me and all rights of ownership as I had shall vest in him”
4. After purchasing the suit property from Zamir Ahmad by way of a sale deed dated 10th October, 1965, the respondents’ predecessor in title demanded rent for the suit premises from the defendant (predecessor in title of the appellants). Since the defendant denied the title of the plaintiff, suit for eviction as also for arrears of rent and damages was filed by the plaintiff against the defendant.
5. The said suit was dismissed by the Munsif Court, Nainital vide its judgment dated 26.09.1969. The trial court held that the gift deed was not valid as it was not accompanied by giving possession of the suit property to the donee and that the donee (Zamir Ahmad) did not have a valid title of ownership which he could transfer to the plaintiff. On this finding, the trial court opined that no relationship of landlord and tenant existed between the parties.
6. The judgment of the trial court came to be affirmed in appeal being Civil Appeal No.59 of 1969, by the District Judge of Kumaon, Nainital. The District Judge also held that the gift deed was invalid as delivery of possession by the donor (Akhtari Begum) to donee (Zamir Ahmad) had not been proved.
7. The respondents filed a second appeal before the High Court of Judicature at Allahabad in 1974, under the unamended Section 100 of the Code of Civil Procedure (for short “C.P.C.”). Since there was no requirement to frame substantial question of law, the appeal was filed raising only grounds of challenge as enumerated under the unamended section. After filing of the second appeal bearing No.1139 of 1974, the Registrar of the Allahabad High Court passed an order on 20.05.1974, to the following effect:-
“Presented today.
Admit and register.
Lay before Court on 8.7.74 for hearing u/o XLI Rule 11 CPC
Sd/- Registrar
20.5.1974”
8. Thereafter, the said appeal was not listed for hearing for about 6 years. On 13.03.1980, the appeal was listed for hearing under Order XLI, Rule 11. It was summarily dismissed for default with the observation that no question of law, much less substantial question of law, was involved. By this time, the C.P.C. was amended in the year 1976 whereby substantial question of law was required to be formulated in the memo of second appeal and by the High Court whilst admitting such appeal.
9. As the second appeal was dismissed for default, the respondents moved an application for restoration of the appeal. The said appeal was restored on 7th May, 1980, after recalling the earlier order. That order reads thus:
“Heard learned counsel for the appellants. I recall my order dated 13.03.1980.”
10. Thereafter, the learned Single Judge by a separate order admitted the second appeal on the same day, with one word, “Admit”. After establishmen
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