T. Sundaram (dead) & Ors. Vs. Basheer Unnissa Begum (dead) & Anr.
EmailAppeal: Civil Appeal Nos. 1625-26 of 1992
Petitioner: T. Sundaram (dead) & Ors.
Respondent: Basheer Unnissa Begum (dead) & Anr.
Apeal: Civil Appeal Nos. 1625-26 of 1992
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Jul 26, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 – Second appeal – No formulation of substantial question of law – No such question recited in judgment. Held that judgment of High Court is set aside and appeal remanded to High Court for decision in conformity with section 100. (Para 3)
JUDGEMENT:
ORDER
1. In the decree passed on 31st July, 1965 in original suit no. 1801/63, the plaintiff-appellants were held to be the owners of the schedule ‘A’ property. On 9th September, 1974 defendant-respondent no.1, herein purchased schedule ‘B’ property, which was situated towards the west of schedule ‘A’ property. It is alleged that defendant-respondent no.2, who is the husband of defendant-respondent no.1 trespassed over the schedule ‘A’ property, belonging to the plaintiff-appellants. It is also alleged that after taking possession, certain construction was made over the said portion of schedule ‘A’ property. It is under such circumstances, the plaintiff-appellants instituted a suit for recovery of possession after removal of the super-structure constructed by the defendant-respondents. A prayer for perpetual injunction was also sought for. On 25th April, 1980 the plaintiffs’ suit was decreed, as prayed for in the suit. Against the said judgment of the trial court, the defendant-respondents preferred an appeal before the first appellate court. The first appellate court while substantially affirming the decree of the trial court, took the view that the plaintiff-appellants can be compensated in terms of money instead of removal of construction. Consequently, the appeal was partly allowed. The defendant-respondents, preferred second appeal before the High Court of Madras. The cross appeal was also filed by the plaintiff-appellants limited to the question of grant of compensation in lieu of recovery of possession. The High Court allowed the second appeal filed by the defendant-respondents and the cross appeal filed by the appellants was dismissed. It is against the said judgment, the appellants have preferred this appeal.
2. Heard counsel for the parties.
3. This Court on number of occasions have held that the High Court while entertaining a second appeal is required to formulate substantial question of law and that the High Court does not acquire jurisdiction to decide the appeal on merits unless substantial question of law is so formulated. In this case, what we find is that the High Court, without formulating any substantial question of law, has decided the appeal. We also do not find any recital of any substantial question of law in the judgment. It is only on this short question, the judgment under appeal deserve to be set aside. We, accordingly, set aside the judgment under challenge. The case is remanded to the High Court to decide the appeal strictly in conformity with the provisions of section 100 of the Code of Civil Procedure.
4. The appeal is allowed. There shall be no order as to costs.
1. In the decree passed on 31st July, 1965 in original suit no. 1801/63, the plaintiff-appellants were held to be the owners of the schedule ‘A’ property. On 9th September, 1974 defendant-respondent no.1, herein purchased schedule ‘B’ property, which was situated towards the west of schedule ‘A’ property. It is alleged that defendant-respondent no.2, who is the husband of defendant-respondent no.1 trespassed over the schedule ‘A’ property, belonging to the plaintiff-appellants. It is also alleged that after taking possession, certain construction was made over the said portion of schedule ‘A’ property. It is under such circumstances, the plaintiff-appellants instituted a suit for recovery of possession after removal of the super-structure constructed by the defendant-respondents. A prayer for perpetual injunction was also sought for. On 25th April, 1980 the plaintiffs’ suit was decreed, as prayed for in the suit. Against the said judgment of the trial court, the defendant-respondents preferred an appeal before the first appellate court. The first appellate court while substantially affirming the decree of the trial court, took the view that the plaintiff-appellants can be compensated in terms of money instead of removal of construction. Consequently, the appeal was partly allowed. The defendant-respondents, preferred second appeal before the High Court of Madras. The cross appeal was also filed by the plaintiff-appellants limited to the question of grant of compensation in lieu of recovery of possession. The High Court allowed the second appeal filed by the defendant-respondents and the cross appeal filed by the appellants was dismissed. It is against the said judgment, the appellants have preferred this appeal.
2. Heard counsel for the parties.
3. This Court on number of occasions have held that the High Court while entertaining a second appeal is required to formulate substantial question of law and that the High Court does not acquire jurisdiction to decide the appeal on merits unless substantial question of law is so formulated. In this case, what we find is that the High Court, without formulating any substantial question of law, has decided the appeal. We also do not find any recital of any substantial question of law in the judgment. It is only on this short question, the judgment under appeal deserve to be set aside. We, accordingly, set aside the judgment under challenge. The case is remanded to the High Court to decide the appeal strictly in conformity with the provisions of section 100 of the Code of Civil Procedure.
4. The appeal is allowed. There shall be no order as to costs.
