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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3657 OF 2018 (Arising out of S.L.P.(c) No. 32229 of 2014)

Uma Pandey & Anr.            ….Appellant(s)

VERSUS

Munna Pandey & Ors.    ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the plaintiffs against the

final judgment and order dated 16.07.2014 passed

by the High Court of Judicature at Patna in Second

Appeal  No.255  of  2008  whereby  the  High  Court

dismissed the second appeal filed by the appellants

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herein  in limine and affirmed the judgment/decree

dated  14.07.2008  passed  by  the  1st Additional

District & Sessions Judge, Gopalganj in Title Appeal

No.  77/2005/06  of  2007  which  arose  out  of  the

judgment  dated  12.07.2005  and  decree  dated

23.07.2005 passed by the Sub-Judge-V, Gopalganj

in Title Suit No. 21 of 1993.   

3) The  issue  involved  in  the  appeal  lies  in  a

narrow compass so also  the facts  involved in the

appeal  are  short.  They  are  stated  hereinbelow  to

appreciate the issue.

4) The appellants are the plaintiffs whereas the

respondents are the defendants in a civil suit out of

which this appeal arises.

5) The  appellants  and  the  respondents  are

members  of  one  family  and  are  related  to  one

another.

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6) The appellants filed a civil suit being Title Suit

No.21/1993 against the respondents in the Court of

Sub-Judge  V,  Gopalganj  claiming  partition  and

separate possession of agriculture lands as detailed

in the schedule appended to the plaint.  

7) According  to  the  appellants,  the  lands  were

ancestral in the hands of the parties to the suit and

being members of family, they were entitled to claim

their share in the suit lands  qua the respondents

(defendants).  It was, inter alia, on this assertion the

appellants  filed  a  suit  for  partition  and  separate

possession of the suit land of their separate shares

against the respondents (defendants).

8) The respondents contested the suit and denied

the  appellants’  claim in  the  written  statement  on

several grounds on facts and in law.  Parties went to

trial.   The  issues  were  framed.   Documents  were

filed and oral evidence was adduced.

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9) The Trial  Court  decreed the  appellants’  suit.

The  respondents  (defendants)  felt  aggrieved  and

filed first appeal. The First Appellate Court allowed

the  defendants’  appeal  and  dismissed  the

appellants’  suit.  The appellants felt  aggrieved and

filed  second  appeal  before  the  High  Court.  By

impugned Judgment, the High Court dismissed the

appeal  in  limine.  The  High  Court  held  that  the

second appeal filed by the appellants (plaintiffs) did

not involve any substantial  question(s)  of  law and

hence it was liable to be dismissed  in limine. It is

against  this  judgment,  the  plaintiffs  felt  aggrieved

and filed the present appeal by way of special leave

in this Court.

10) Heard  Mr.  Manan  Kumar  Mishra,  learned

senior counsel for the appellants.   Despite notice,

no one appeared on behalf of respondents.

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11) Having  heard  the  learned  counsel  for  the

appellants and on perusal of the record of the case,

we are constrained to allow the appeal, set aside the

impugned judgment of the High Court and remand

the case to the High Court for deciding the second

appeal  filed  by  the  plaintiffs  (appellants  herein)

afresh on merits on the substantial questions of law

framed by this Court hereinbelow.

12) In  our  considered  opinion,  the  High  Court

erred in dismissing the second appeal  in limine on

the ground that it did not involve any substantial

question(s) of law.  

13) In our view, the appeal did involve substantial

question(s) of law within the meaning of Section 100

of  the  Code  of  Civil  Procedure,  1908  (hereinafter

referred to as  ‘the Code’) and, therefore, it should

have  been  admitted  for  final  hearing  on  the

substantial question(s) of law arising in the case.

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14) It  is  not  in  dispute  that  the  defendants

(respondents)  filed  one

document(EX-A)-(Annexure-P-1  of  SLP).   This

document was relied on and appreciated by the two

Courts below for deciding the rights of the parties.

The  Trial  Court  decreed  the  suit  and  the  First

Appellate  Court  reversed  it  on  appreciating  the

evidence including EX-A.  

15) It  is  a  settled  principle  of  law  that

interpretation  of  any  document  including  its

contents or its admissibility in evidence or its effect

on the rights of the parties to the Lis constitutes a

substantial question(s) of law within the meaning of

Section 100 of the Code.

16) Whenever such question arises in the second

appeal at the instance of the appellant, it deserves

admission  on  framing  appropriate  substantial

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question(s)  on such questions to  enable  the  High

Court to decide the appeal on merits bi-party.

17) In this case, it was all the more reason for the

High Court to have admitted the appellants’ second

appeal  because  the  Trial  Court  and  the  First

Appellate  Court  had  taken  into  consideration  the

document - Ex-A for deciding the Lis involved in the

case.     

18) In  the  light  of  the  foregoing  discussion,  we

cannot  concur  with  the  reasoning  and  the

conclusion arrived at by the High Court as, in our

view, it wrongly dismissed appellants’ second appeal

in limine.

19) In other words, what the High Court ought to

have done at the time of hearing the second appeal

on the question of admission by framing substantial

question(s)  of  law  arising  in  the  case,  the  said

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exercise now we have to do it while disposing of this

appeal.

20) In  our  view,  the  following  substantial

questions of law arise in the second appeal within

the  meaning  of  Section  100  of  the  Code  for  its

decision:

1.  Whether  findings  recorded  by  the  first Appellate  court  on  Ex-A  for  allowing  the defendants’ first appeal and, in consequence, reversing the      judgment/decree of the trial court is legally and     factually sustainable?

2. What is the true nature of Ex-A?  Can it be termed  as  “partition  deed”  or  a  document recognizing  a  factum  of  partition  already effected  between  the  parties  in  relation  to the suit land?

3. Whether Ex-A binds the plaintiff's and, if so, how and to what extent?

4. Whether Ex-A requires registration and, if so, its effect?

5.  Since  Ex-A  was  exhibited  in  evidence without any objection, whether any objection about its admissibility or legality can now be raised  by  the  appellants  in  second  appeal and, if so, its effect?

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21) In view of the foregoing discussion, the appeal

succeeds and is allowed. Impugned judgment is set

aside.  The appeal is remanded to the High Court

for  its  decision  on  merits  on  the  substantial

questions of law framed by us.  

22) We, however, make it clear that we have not

gone into the merits of the case.  The High Court

will accordingly decide the appeal on merits strictly

in accordance with law uninfluenced by any of our

observations.

23) Since the appeal is quite old, we request the

High Court to decide the same preferably within six

months.         

    ………...................................J.

[R.K. AGRAWAL]             

                         …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; April 09, 2018