2001 (2) TMI 131 - SC - Income Tax

Whether a question of law raised in the case is a substantial one?

Held that:- Reverting to the facts of the case at hand, prima facie we find the first appellate court did not discharge the duty cast on it as a court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his defaults. That was not done. In cur opinion, the following substantial question of law does arise as involved in the case and is worth being heard by the High Court :

"Whether on the pleadings and the material brought on record by the defendant, the first appellate court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial court ?"

The appeal is allowed. The case is remitted back to the High Court for hearing and deciding the second appeal afresh.