1. Civil suit for declaration of ancestral property ownership and determination of whether specific property is a public trust property. (Para 4 )
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2018 Supreme(SC) 466
SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, S. ABDUL NAZEER, JJ.
Vijay Arjun Bhagat & Ors. – Appellants
Versus
Nana Laxman Tapkire & Ors. – Respondents
Civil Appeal No. 6272 of 2010
Decided On : 11-05-2018
IMPORTANT POINT
In second appeal High Court has to frame substantial questions of law and confine its discussion and judgment on those questions only.
Headnote:Code of Civil Procedure, 1908 – Section 100 – High Court framing six substantial questions of law – High Court deciding second appeal not on questions framed by it but on two additional substantial questions of law not framed by it – Not sustainable. (Para 18, 26)
C.A. Nos.91189119 of 2010 – Referred
Facts of the case:
The appellants filed a title suit which was dismissed.
The first Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the plaintiffs’ suit.
The High Court allowed the second appeal.
Finding of the Court:
High Court committed two jurisdictional errors.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Defendants contested the maintainability of the suit and denied the plaintiffs' claims regarding property ownership and trust status. (Para 5 )
3. The High Court committed jurisdictional errors by deciding the second appeal on questions not formulated at admission or during the hearing, violating Section 100 CPC. (Para 12 , 13 , 18 , 20 , 24 , 25 )
4. Second appeals under Section 100 CPC must be decided on formulated substantial questions of law; additional questions require recorded reasons and framing during the hearing. (Para 15 , 23 )
5. Appeal allowed, impugned judgment set aside, and case remanded to the High Court for fresh decision on merits. (Para 28 )
6. What is the mandatory procedure for a High Court to hear a second appeal under Section 100 of the CPC?
The High Court must be satisfied that the case involves a substantial question of law, formulate that question, and hear the appeal specifically on the formulated question, allowing the respondent to argue that the case does not involve such a question. (Para 14 , 15 )
7. Can a High Court hear a second appeal on a substantial question of law not initially formulated?
Yes, under the proviso to Section 100(5), the court may hear the appeal on any other substantial question of law, provided it records reasons for doing so and frames the question at the time of the hearing. (Para 15 , 23 )
8. What is the legal effect of framing additional substantial questions of law only within the final judgment?
Framing additional questions only in the final judgment is a jurisdictional error that prejudices the parties by depriving them of the opportunity to address the court on those specific questions before the decision is reached. (Para 20 , 24 , 25 )
JUDGMENT :
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment and order dated 19.07.2007 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Second Appeal No.274 of 2002 whereby the Single Judge of the High Court allowed the appeal filed by respondent Nos.1 & 2 herein and set aside the judgment/order dated 16.01.2002 passed by the District Judge, Ahmednagar in R.C.A. No.21 of 2000 and confirmed the judgment dated 10.12.1999 passed by the Civil Judge, Junior Division, Ahmednagar in R.C.S. No.600 of 1982.
2. In order to appreciate the issues involved in the appeal, few relevant facts need to be mentioned hereinbelow.
3. The appellants are the plaintiffs whereas the respondents are the defendants in a civil suit out of which this appeal arises.
4. The appellants filed a civil suit (R.C.S. No. 600/1982) against the respondents in the Court of Civil Judge, Junior Division, Ahmednagar for declaration that, (1) the suit properties described in detail in the schedule are ancestral properties of the plaintiffs (2) the plaintiffs are the owners of the suit properties, and (3) the suit property described in schedule 1(A) is not a Trust property and be declared as the plaintiffs’ private property.
5. Defendant No. 1 filed its written statement whereas defendant Nos. 3 and 4 filed their joint written statement. The defendants raised several objections about maintainability of the suit. They also denied plaintiffs’ claim on merits.
6. The Trial Court framed issues. Parties adduced evidence in support of their case. By judgment and decree dated 10.12.1999, the Trial Judge though answered some issues in plaintiffs’ favour but eventually dismissed the plaintiffs’ suit on merits.
7. The plaintiffs felt aggrieved and filed First Appeal (R.C.A. No.21/2000) in the Court of District Judge, Ahmednagar. By order dated 16.01.2002, the first Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the plaintiffs’ suit.
8. Against the said judgment, Defendant Nos. 3 & 4 (respondent Nos. 1 & 2 herein) filed appeal being Second Appeal No. 274/2002 in the High Court of Bombay (Bench at Aurangabad). The High Court on 30.11.2002 admitted the second appeal on the following substantial questions of law:
“(A) Whether the first appellate court has misread the document of partition deed (Exh.81) and therefore the finding in this behalf suffers from perversity.
(B) Whether the first appellate Court has failed to consider the appropriate provisions of Order VII Rule 3 of C.P.C.
(C) Whether the first appellate Court has erroneously relied upon Xerox copies of the mortgage deed which is not registered.
(D) Whether the first appellate Court has erroneously that the suit properties are the private properties of original plaintiffs.
(E) Whether the Civil Court has jurisdiction to decide the nature of the property which issue required to be dealt with by the Charity Commissioner.
(F) Whether the suit is barred by limitation.”
9. By impugned judgment, the Single Judge of the High Court allowed the appeal and, in consequence, set aside the order passed by the District Judge in R.C.A. No.21 of 2000 and confirmed the judgment passed by the Civil Judge in R.C.S. No.600 of 1982 which has given rise to filing of the present appeal by way of special leave by the plaintiffs before this Court.
10. The short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the appeal.
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.
12. In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribed under
