ARSAD SK Vs BANI PROSANNA KUNDU .
Bench: CHANDRAMAULI KR. PRASAD,PINAKI CHANDRA GHOSE
Case number: C.A. No.-004805-004805 / 2014
Diary number: 37552 / 2008
Advocates: DHARMENDRA KUMAR SINHA Vs
SIDDHARTHA CHOWDHURY
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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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