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2011 DIGILAW 311 (ALL)

Usha Gautam v. Shiv Kumar Sharma

2011-02-07

SANJAY MISRA

body2011
JUDGMENT Hon'ble Sanjay Misra,J. Heard Sri Badrinath Shukla learned counsel for the respondent no. 1. Although the cause list has been revised, none appears on behalf of the appellant. The recall application no. 2949 of 2011 along with condonation of delay application is listed for orders today. In view of the averments made in the affidavit supporting the condonation of delay application the delay in filing the recall application is condoned. The delay condonation application is allowed. 2. According to Sri Shukla when a second appeal under Section 100 of the CPC is admitted the court is required to frame/formulate the substantial questions of law for decision of the appeal and in the present case under the order dated 21.12.1999 this appeal was admitted but the court did not formulate any substantial question of law. He therefore states that the order dated 21.12.1999 admitting the appeal be recalled. 3. In support of his contention Sri Shukla has placed reliance on decisions of the Supreme Court in Narayanan Rajendran & Another Vs Lekshmy Sarojini & Others JT 2009 (4) SC 62 as also in the case of Rameshwar Dayal Mangala @ Ramesh Chand Vs Harish Chand & Anr. JT 2009 (4) SC 100 and Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board & Ors. 2010 AIR SCW 7020. 4. Having considered the submission of learned counsel for the applicant and perused the record the law laid down by the Supreme Court cannot be disputed it has only to be seen whether at the time of admission of this appeal on 21.12.1999 the court had formulated the substantial question of law. 5. The order dated 21.12.1999 is quoted here under:- "Heard learned counsel for the appellants. The appeal is admitted. The appeal be heard on the substantial question of law as framed in memo of appeal. Issue notice. Call of the record." 6. The order refers to the substantial question of law as framed in the memo of appeal. 5. The order dated 21.12.1999 is quoted here under:- "Heard learned counsel for the appellants. The appeal is admitted. The appeal be heard on the substantial question of law as framed in memo of appeal. Issue notice. Call of the record." 6. The order refers to the substantial question of law as framed in the memo of appeal. In the memo of appeal as many as six substantial question of law have been framed which are quoted here under:- "(I) Whether the appellant being in adverse possession of the property since 4.8.1964 while the suit having been filed on 5.12.1976 the alleged right of plaintiff-respondents stands extinguished in view of provisions of Section 27 of the Limitation Act and the suit having been filed after 12 years is barred by limitation in view of Article 65 of the Limitation Act. (II) Whether the plaintiff-respondent having failed to prove the execution of sale deed dated 15.9.1964 (paper no. 66-A-1) as the aforesaid document was neither exhibited nor its attesting witnesses examined for proving its execution, was entitled for the decree. (III) Whether the view of lower appellate court that adverse possession is illegal possession and no relief can be granted on the basis of the same, is wholly illegal and not sustainable in law. (IV) Whether in view of the admitted fact that over the land in dispute valuable construction of the appellant are in existence, the suit for relief of mandatory injunction is maintainable without claiming relief for demolition of construction existing over it. (V) Whether in the absence of any pleading and evidence regarding the length and breath of the disputed land over which injunction is sought, the plaintiff can be granted the discretionary relief of mandatory injunction. (VI) Because in the circumstances of the case the appellant had perfected his title by adverse possession and view of the courts below to the contrary is manifestly illegal and against the evidence on record." 7. Reading the order dated 21.12.1999 and the substantial questions of law formulated in the memorandum of appeal it appears that the appeal has to be heard on the aforesaid six substantial questions of law as indicated in the order dated 21.12.1999. 8. Learned counsel has submitted that such order would not amount to the High Court framing or formulating the substantial question of law. 8. Learned counsel has submitted that such order would not amount to the High Court framing or formulating the substantial question of law. In so far as the above submission is concerned in case the memorandum of appeal has formulated substantial question of law and the court hearing the second appeal at the admission stage is satisfied that such substantial questions of law arise in the appeal and requires to be decided the court need not go through the exercise for rephrasing the very same questions in another language. Once the court finds that the substantial question of law framed in the memo of appeal is involved in the second appeal and the second appeal is to be decided on such question it can be so provided under the order of admission. 9. In the present case in the order dated 21.12.1999 (quoted above) the court was satisfied that the substantial questions of law framed in the memo of appeal are substantial questions of law which require decision in this appeal. 10. A perusal of the six substantial questions of law framed in the memorandum of appeal indicate that they are required to be decided in this second appeal. There is no difference between formulating substantial question of law at the time of admission of the appeal and further substantial question of law at the time of final hearing of the appeal since a second appeal can only be admitted after a substantial question of law has been formulated and decided only on a substantial question of law. Therefore, when at the time of admission stage such question has been formulated it cannot be said that the order dated 21.12.1999 requires to be recalled. 11. The application is accordingly rejected. 12. No order is passed as to costs.