This appeal arises out of a judgment and order dated 9.1.2002 passed by the
High Court of Judicature at Patna in Second Appeal No. 436/1986 whereby and
whereunder the judgment dated 17.3.1986 and the judgment and order dated 8.4.1986
passed by the Trial Court in Title Appeal No.16/99 of 1984-85 affirming the judgment
and order dated 19.5.1984 passed by the Trial Court in Title Suit No. 68/1982, was set
aside.
The property in suit belonged to one Ram Chandra Singhania. He had four
sons, namely, Chhedilal, Madan Lal, Ram Awtar and Haridwar. Madan Lal and
Ram Awtar were the original plaintiffs. Indisputably, on or about 25.7.1995,
Haridwar – original defendant No.2, purported to have executed a deed of gift in
favour of the appellant herein. The original plaintiffs filed a suit, inter alia, for a
declaration that the said deed of gift was void. They in support of their plea, inter
alia, raised a contention that there had been a family arrangement in the year 1950 as
also in the year 1954. The said suit was dismissed by the learned Trial Judge holding
that the deed of gift was legally binding on the plaintiff. The appeal preferred
thereagainst was dismissed by the Additional District Judge, Bettiah.
A second appeal was filed before the High Court on 24.7.1986. On or about
21.3.1987, the High Court formulated the following substantial questions of law:
(i) Whether family arrangement could be discarded only on the ground that
the same was not effected by registered document, even though it was the
admitted case of the parties?
(ii) Whether the Court below were correct in giving finding that the plaintiffs
appellants have not supported their case of possession by filing even a chit
of paper?
In the impugned judgment, however, the learned Judge did not approach the
second appeal from the point of view that only the substantial questions of law were
required to be answered; for all intent and purport, it reopened the entire suit. It
proceeded on the basis as if the parties had adduced evidence beyond their respective
pleadings. It entered into the realm of appreciation of evidence.
The discussions contained in the judgment were not kept confined to the
substantial questions of law formulated. The High Court, for all intent and purport,
failed to keep its jurisdiction confined within the provisions of sub-sections (4) and (5)
of Section 100 of the Code of Civil Procedure (CPC). The proviso appended to sub-
section (5) of Section 100 of CPC stipulates that in the event the High Court intends to
formulate any other substantial question of law, it may not be precluded from doing
so, but therefor, an opportunity of hearing is to be granted to the respondent. As
indicated hereinbefore, the High Court reopened all the issues arising between the
parties in the suit, without formulating appropriate substantial questions of law.
The discussion in the impugned judgment had thus not been kept confined to
the question of law which, in our opinion, was beyond the limited jurisdiction of the
High Court which it exercises in terms of Section 100 of CPC.
For the reasons aforementioned, the impugned judgment cannot be sustained
which is set aside and the matter is remitted to the High Court for consideration
thereof afresh and for formulating substantial question of law, if any, arising therein.
The appeal is disposed of accordingly
Keeping in view the fact that the matter is an old one, we would request the
High Court to consider the desirability of disposing of the matter as expeditiously as
possible.
(S.B. SINHA)