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IN THE SUPREME COURT OF INDIA

Reportable

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4805 OF 2014

(Arising out of SLP (C) No.12773 of 2009)

Arsad Sk. & Anr.

.… Appellants

Vs.

Bani Prosanna Kundu & Ors. ....Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Leave granted.

2. This appeal is directed against the judgment and decree dated

March 13, 2008 passed by the High Court of Calcutta in Second

Appeal No.490 of 1993 by which the High Court while allowing

the second appeal filed by the respondents herein, set aside

the concurrent judgments of the Trial Court and the First

Appellate Court.

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3. The facts revealed in this case are that respondent Nos.1 to 6

herein filed a suit in the Court of First Munsif, District Malda,

praying, inter alia, for a permanent injunction against the

defendants (who are appellants herein) by declaring the title

over 27 decimals of land in R.S. Plot No.95/425 situated in

Mouza Mahesh Mati, P.S. Engrej Bazar in District Malda, West

Bengal. The Munsif Court, Malda, by its judgment and order

dated May 15, 1989 dismissed the said suit with the finding

that the plaintiffs did not have any right, title or interest in the

schedule property. Aggrieved by the dismissal of their suit, the

respondents-plaintiffs preferred first appeal, being O.C. Appeal

No. 25 of 1989, before the District Judge, Malda, wherein they

specifically pleaded that they owned and possessed the suit

land within the boundary through purchase and gifts.

Simultaneously, further claimed the title to the whole area by

adverse possession. On July 12,1991, the Assistant District

Judge, Malda dismissed the First Appeal and upheld the

findings of the Trial Court. Aggrieved thereby the respondents-

plaintiffs preferred a second appeal before the Calcutta High

Court stating, inter alia, that in a dispute in a conveyance deed

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between the area and description of boundary, the description

of boundary would prevail and also pointed out that the Court

below had failed to consider the question of adverse

possession.

4. The High Court by its judgment and order dated March 13,

2008 set aside the concurrent judgments of the Trial Court and

the First Appellate Court and allowed the second appeal filed

by the respondents, holding that where there is a dispute in a

conveyance deed between the area and the description of the

boundary, the description of the boundary shall prevail.

Aggrieved by the said judgment and order passed by the High

Court, the appellants have come up before this Court by filing

this appeal.

5. Learned counsel appearing on behalf of the appellants

submitted that the impugned judgment passed by the High

Court in second appeal suffers from patent errors, both in law

and in fact. It was submitted that the High Court did not frame

the substantial question of law at the time of admission of the

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second appeal but formulated a question only in the impugned

judgment after the arguments had been concluded.

6. Per contra, the case of the respondents is based on the

premise that under the proviso to sub-Section (5) of Section

100 of the Code of Civil Procedure, 1908 (hereinafter referred

to as “CPC”), nothing shall be deemed to take away or abridge

the power of the Court to hear, for reasons to be recorded, the

appeal on any other substantial question of law, not formulated

by it, if it is satisfied that the case involves such question and

the High Court has correctly proceeded to frame the question

of law set out in the impugned judgment. It is further submitted

that the question of law as set out by the High Court in the

impugned judgment is the appropriate and substantial question

of law arising in the facts and circumstances of this case and