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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  

that the appeal should be dismissed as the Second Appellate  

Court  has  merely  set  right  the  apparent  perversity  in  the  

judgments of the lower courts.  It is submitted that the High  

Court  has  correctly  decided  the  matter  on  the  basis  of  the  

question of law framed in the impugned judgment by holding,  

inter alia, that where there is a dispute between the area of the

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transferred  land  indicated  in  the  deed  and  the  boundaries  

mentioned  in  the  deed,  boundaries  mentioned  in  the  

conveyance deed shall prevail.   

7. In the present case, it appears from the impugned judgment  

that no substantial question of law was formulated at the time  

of  admission  of  appeal  and  as  such  the  question  was  

understood to be regarding the correctness of judgments of the  

lower courts. Furthermore, if any such lapse in adhering to the  

procedure existed at the second appellate stage, the counsel  

for the parties should have pointed out the same at that stage  

only but they never did so. Moreover, it is clear that the High  

Court basically framed the substantial question of law, though  

at a later stage, and then answered it.  

8. The general rule regarding an appeal under Section 100 of CPC  

is  that  the  jurisdiction  of  the  High  Court  is  limited  to  the  

substantial question of law framed at the time of the admission  

of appeal or at a subsequent later stage,  if the High Court is  

satisfied that such a question of law arises from the facts found

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by the Courts below. The same has been noted by this Court in  

Manicka Poosali & Ors. v. Anjalai Ammal & Anr.1.   

9. In light of the well accepted principle that rules of procedure is  

a  handmaiden  of  justice,  the  omission  of  the  Court  in  

formulating the ‘substantial question of law’ (while admitting  

the appeal) does not preclude the same from being heard as  

litigants should not be penalized for an omission of the Court.  

10. In the present case it is true that the substantial question  

of law was formulated by the High Court,  though not at the  

admission stage but at a later stage before the hearing, it does  

not  follow  that  merely  because  the  “substantial  question  of  

law” was formulated by the High Court at a later stage, the  

judgment of the High Court becomes a nullity, liable to be set  

aside by this Court on that ground alone and for the same the  

appellants before us must also show prejudice to them on this  

account.  This  Court  in  the  case  Kannan  &  Ors.  v.  V.S.   

Pandurangam2  even went on to hold  as under:

1 (2005) 10 SCC 38 2 (2007) 15 SCC 157

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“In  our  opinion,  this  Court  should  not  take  an  over- technical  view  of  the  matter  to  declare  that  every   judgment of the High Court in second appeal would be   illegal  and  void,  merely  because  no  substantial   question of law was formulated by the High Court. Such   an over-technical  view would only  result  in  remitting   the matter to the High Court for a fresh decision, and   thereafter the matter may again some up before us in   appeal.   The  judiciary  is  already  over-burdened  with   heavy arrears,  and we should not take a view which   would add to the arrears.”  

11. In  light  of  the  above,  we  are  of  the  opinion  that  

substantial  question  of  law  can  be  formulated  at  the  initial  

stage and in some exceptional cases, at a later point of time,  

even at the time of argument stage such substantial question  

of law can be formulated provided the opposite party should be  

put  on notice  thereon and should  be given a  fair  or  proper  

opportunity to meet out the point.  Furthermore, the judgment  

of the High Court should only be set aside on the ground of  

non-compliance with sub-section (4) of Section 100 of CPC, if  

some prejudice has been caused to the appellants before us by  

not formulating such a substantial question of law.  

12. In  the  instant  case,  we  have  noticed  that  substantial  

question  of  law  was  framed  by  the  High  Court  before  the

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hearing took place and the appellants were put on notice and  

after  giving  an  opportunity  to  the  appellants  to  meet  the  

question,  second  appeal  was  decided  by  the  High  Court.  

Therefore, in our opinion no prejudice has been caused to the  

appellants.     

13. In view of the discussion in the foregoing paragraphs, we  

find  no  merit  in  this  appeal  and  the  same  is  dismissed  

accordingly. However, there shall be no order as to costs.

….....…..…………………..J. (Chandramauli Kr.  Prasad)

New Delhi;                                                       ........... …………………….J. April 23, 2014.                                        (Pinaki Chandra   Ghose)

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