This appeal was admitted by this Court on following three grounds, involving substantial questions of law ;

"(A) If the issue regarding partition is not framed whether the Extra Assistant Judge, Parbhani can give a finding that the Defendant has not proved the partition?

(B) The second substantial question of law is that the Plaintiff has to prove his case and if he has not led proper evidence he must fail.

(C) The third substantial questions of law is that if the Defendant proves his agreement and ownership of Peeraji Laxman whether he can take benefit of section 53-A of the Transfer of Property Act ?"

2. Heard Shri Deshpande, learned Advocate for the appellant, Shri Agrawal, learned Advocate for respondent I-b and Smt. Jamdade, learned Advocate for respondent 1-c.

3. This appeal is filed by the plaintiff in Regular Civil Suit No. 107 of 1996, which was for declaration of ownership with recovery of possession of the suit house. The suit, after recording evidence, was dismissed by the learned Civil Judge Junior Division on 29-2-1979. The dismissal of the suit was challenged by the plaintiff by filing Regular Civil Appeal No. 40 of 1979, under section 96 read with Order XLI of the Code of Civil Procedure ("CPC") in the District Court, Parbhani. The learned Extra Assistant Judge, after hearing the parties, allowed the appeal and quashed, set aside the judgment and decree of the trial Court and decreed the suit on 20-3-1984. It is this judgment and decree, which is subject matter of the present second appeal.

4. Apart from the grounds considered at the time of admission, at the time of final hearing of the Second Appeal, Shri Deshpande, learned Advocate for the appellant, urged for framing of one more ground. Respective Advocates were heard on this point i.e. whether a substantial question of law, which was not framed by this Court at the time of admission, can be framed subsequently at the time of final hearing of the appeal?

5. A bare look to sub-section (1) of section 100 shows that the second appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (2) further lays down that such appeal shall lie from an appellate decree passed ex parte. Sub-section (3) enumerates that in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. In subsection (4) it has been provided that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. From said sub-section (4) it appears that jurisdiction lies with the High Court to formulate such substantial question of law, if the High Court is satisfied for such involvement of the substantial question of law. Sub-section (5) on this premise further provides that at the time of hearing of the appeal on the question so formulated i.e. to say formulated earlier at the time of admission of the second appeal and respondent shall at the hearing of the appeal be allowed to argue the case contending that such second appeal does not involve such a question. In other words, final hearing of the second appeal ordinarily shall be on the grounds or the substantial question of law already formulated by the High Court at the time of the admission. It is also made clear that even at this stage, i.e. at the stage of final hearing of the appeal, after admission, it is permissible for respondent to contend and argue before the High Court that such a second appeal does not involve any substantial question of law.

Sub-section (5) is appended with proviso. This proviso lays down that even if the appeal is admitted on some or specific grounds, allegedly involving substantial question of law, still the jurisdiction and power lies with the High Court for the reasons to be recorded, that any other substantial question