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2025 DIGILAW 1358 (ALL)

Shekh Mohammad Murtaza v. Shekh Wajid Ali

2025-11-21

SAURABH SHYAM SHAMSHERY

body2025
JUDGMENT : “12. ---Thus, sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only it the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct Issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4) In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). TIP respondent, however, at the time of hearing of the appeal is given a right under sub-section (51 to raise an objection that the question framed by the High Court under sub-section (41 does not involve in the appeal. The reason for giving this right to the respondent for raising such objection al the time of heating is because the High Court frames the question at the stage of admission, which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed ex parte and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). The proviso to sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.” “I- Whether in view of the admitted fact that the plaintiff has not led any evidence nor the Courts below have recorded any finding that on the date of vesting the plaintiff was in possession over the land in dispute is his appurtenant land. II- Whether the Courts below were justified in deoreeing the plaintiff’s suit on the ground that the same is the Sahan land of the plaintiff-respondent? III- Whether in view of the admitted fact that the defendant- appellant purchased a portion of plot No. 173 ( Subject matter of the suit in dispute) and the plaintiff having filed a suit for injunction on whom the burden lay to prove and in the absence of any evidence or proof whether the suit is to be decreed on the erroneous assumption that the defendant has failed to discharge the burden and whether such a judgment can be sustained in law. IV- Whether the Courts below were justified in deciding the suit and the appeal on misreading of true state of affairs and whether their decisions are vitiated in law.” “It does not appear from a perusal of the record that the lower Court committed any illegality in as much as it came to the conclusion that the Map prepared by the Amin was not correct although it had confirmed that very map earlier. That would take the defendant unawares and if at the time of the Judgment, the Court below came to the conclusion that the map was not correct, it could set aside the same but should have called upon the defendant to have got another map prepared, particularly when if has been admitted by Wajid Ali (P.W.3) that the disputed land formed part of plot No.173. This illegality would have been sufficient for setting aside the judgment passed by that Court below, but in the peculiar circumstances of this case, that is of no consequences, as I shall presently show. This illegality would have been sufficient for setting aside the judgment passed by that Court below, but in the peculiar circumstances of this case, that is of no consequences, as I shall presently show. It is an admitted fact that plot no.173 is a big plot in area .20 acre. Smt. Rajeshwari predecessor in title or the defendant, was the owner of .03 acre only and the defendant purchased 7/8 thereof per sale deed Ext. A-3. Curiously enough in the aforesaid sale deed, boundaries of the land purchased by the defendant have not been given and on the basis of this sale deed all that can be said is that the defendant purchased 0.2 5/8 acre of land somewhere in plot no.173 which, as I have already observed, was a much bigger plot as it also evident by the Commissioner's map (40Ga). I was, therefore enough for the defendant to get plot no.173 located as it would not serve any useful purpose. He should have got located Plot no.173 which was said to belong to Smt. Rajeshwari and out of which 7/8 share had been purchased by the defendant. Since this was not done, the Map prepared by the Amin was useless for the purposes of this suit and even if the Court below did not rely upon the same, it would not affect the outcome of the suit. Another thing which strikes the eye and which goes against the defendant is that all the witnesses admit the existence of an old Neem tree over the land in suit. According to Wajid Ali (P.W.3) this Neem tree was about forty years old yet it does not find place in the sale deed (Ext.3) If the land in suit was the same as has been purchased by the defendant from Smt. Rajeshwari, the Neem tree would have been mentioned in the aforesaid sale deed. Reference was then made to the Khatauni of 1385F (Ext. Ka-2) which mentioned Neem, Mango, Guava and Kathal trees. The Vakil Commissioner visited the spot soon after the filing of the suit and except the Neem tree, mentioned the others as other plaints similar to the observation of the Amin who went to survey the locality. It, therefore, appears that the defendant planted these trees only after he surrounded the land in suit. The Vakil Commissioner visited the spot soon after the filing of the suit and except the Neem tree, mentioned the others as other plaints similar to the observation of the Amin who went to survey the locality. It, therefore, appears that the defendant planted these trees only after he surrounded the land in suit. Wajid Ali (P.W.3) has clearly stated that such trees did not exist earlier and if after the constructions of the aforesaid Ahata, the defendant had planted the trees, he did not know. In my view, the existence of these trees, therefore, does not help the defendant at all. There are several other circumstances which go to support the plaintiff's case. According to the defendant, the plaintiff had no door towards south but he himself left space to the north of the wall constructed by him and to the north of the southern wall of the plaintiff, showing thereby that the southern door must have existed at that point from before otherwise there was no necessity for leaving that place. In the second place, there is difference in land of the disputed land and the other land forming part of plot no.173. The disputed land was a space higher than the other land which would also go to indicate that it had been converted into Sahan land. In my any case, there is no proof on the record to show that this land had been cultivated. It has also to be kept in mind that the house of the defendant lies towards the south across the passage and as such he was not likely to have any concern with the land which adjoined the house of the plaintiff. In any case, the defendant relied upon the sale deed of 1971 and it was for him to prove that the land in suit had been transferred to him, but as observed by me earlier, he did not care to get the same located properly nor could it be established by the sale deed where no boundaries are given that it was the land in suit which had been transferred to the defendant. The sale deed, therefore, does not help him in proving his ownership of the land in suit. In the second place the observation of the commissioner who visited the spot in 1978 helps the plaintiff. The sale deed, therefore, does not help him in proving his ownership of the land in suit. In the second place the observation of the commissioner who visited the spot in 1978 helps the plaintiff. Although the sale deed had been executed in 1971 the defendant did not make any construction till 1978. The Vakil Commissioner has clearly reported that the wall constructed over the land in suit were new. On the other hand, the situation of the land in suit vis- à-vis the house of the plaintiff, the existence of his southern door which appeared from the evidence of the P.Ws to have existed for a long time and the difference in land between this land and the land belonging to the defendant, would go to indicate that the plaintiff was the owner of this land and it appertained to his house. It has been observed by the Trial Court that the level of the plaintiff's house and the disputed land was the same. It also goes to support the plaintiff's version that this land appertained to his house. After consideration of all these facts, I am satisfied that the plaintiff had succeeded in proving his title and possession over the land in suit. It appertained to his house and must be deemed to have vested in him. As against this, the defendant failed to established that the disputed land had been purchased by him or he was in possession thereof, before the filing of the suit. In the result, I am satisfied that the Trial Court acted correctly in decreeing the suit of the plaintiff. I do not find any merit in the present appeal and shall dismiss the same.” “28. In Sir Chunilal V. Mehta and Sons (supra), this Court agreed with and approved a Full Bench judgment of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju and Ors.5 which laid down the principles for deciding when a question of law becomes a substantial question of law. 29. In Hero Vinoth v. Seshammal, this Court followed Sir Chunilal v. Mehta & Sons (supra) and other judgments and summarized the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. 30. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out herein below: "21. 30. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out herein below: "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood contradistinction with technical, of no substance or consequence, or as something in academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta 551A 235: AIR 1928 PC 172 ] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549: AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)]: (Sir Chunilal case [1962 Supp (3) SCR 549: AIR 1962 SC 1314 ], SCR p. 557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." The proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law.