Leave granted.
By the impugned order, the High Court dismissed the second appeal on the
ground that no substantial question of law is involved therein.
Having heard learned counsel for the parties and perused the records, we
are of the opinion that the High Court was not justified in dismissing the second
appeal on the ground that no substantial question of law was involved therein. In our
view, the following substantial questions of law do arise in the second appeal before
the High Court:
“[a] Whether the statement made by an advocate appearing
on behalf of the plaintiff under Order X Rule 2 of the Code of
Civil Procedure, 1908, could be treated to be an admission by the
party?;
[b] Whether the finding of fact recorded by the First Appellate
Court to the effect that passage from `Gha' to `Cha' in the map
prepared by the Amin could not be treated as a public road as the
passage ends at the `Ghari' [cattle shed] of the plaintiff was
vitiated in law?”
...2/-
Accordingly, the appeal is allowed, impugned order rendered by the High
Court is set aside and the matter is remitted to it for fresh disposal of the second
appeal in accordance with law. Upon remand, the High Court shall issue notice to
the respondents in the appeal and formulate aforesaid substantial questions of law.
It would be open to the High Court to formulate any other substantial question of law
which it deems fit and proper.
[G.S. SINGHVI] New Delhi, January 05, 2009.