TMI Blog2012 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... tered deed of sale executed by him on 09.12.1963, he sold 17 marlas of land to Narain Singh, who took possession of the land so purchased by him. Sadhu Singh sold 1 bigha (equivalent to 1 Kanal and 13.1/3 marlas) of land of the same Khasra No. jointly to Harbhajan Kaur and Hardial Kaur on 04.02.1964 by executing another sale deed in their favour. On 19.02.1969, out of the same Khasra, Sadhu Singh mortgaged land in favour of the original Defendants being Defendant Nos. 2 to 5 and handed over possession of the same to them. Plaintiffs - Dalip Singh(D) - husband of Hardial Kaur and Harbans Singh - son of Hardial Kaur jointly filed a suit before the learned Trial Court for possession of agricultural land measuring 1 Kanal and 13.1/3 Marlas of the aforesaid Khasra against original Defendants - Sadhu Singh, Harchand Singh, Amar Singh, Kapoor Singh and Dalbir Singh. They also claimed removal of structure, the foundation of which was laid by Defendant Nos. 2 to 5 without the Plaintiffs' knowledge and consent and without any right, title or interest. As mentioned hereinabove, Plaintiffs claimed title to the same on account of the sale deed having been executed in their favour on 4.2.196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Court, on the basis of pleadings, was pleased to formulate following issues: 1. Whether the Suit is bad for non-joinder of necessary parties? 2. Whether the Plaintiffs are estopped to file the present Suit? 3. Whether the Plaintiffs have locus standi to file the Suit? 4. Whether the Plaintiffs are owner of the Suit property and are entitled to its possession? 5. Relief. 10. The Trial Court, after relying on the evidence and after appreciating the materials on record, dismissed the Plaintiffs' suit. As regards Issue No. 1, the Trial Court held that the same was not seriously pressed and there was no pleading or evidence led in this regard. As regards Issue No. 2, the finding of the Trial Court is that the Plaintiffs were estopped from bringing the suit because they had not objected the acts which were being done by the Defendants for a long number of years. As regards Issue No. 3, me finding of the Trial Court is that Plaintiff Nos. 1 and 3, being the heirs of Hardial Kaur, had the locus standi to file the suit. With regard to Issue No. 4 dealing with the question of ownership, it was decided in favour of the Plaintiffs holding them to be the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove. But after formulation of the said questions of law, neither party was given opportunity of hearing to address on the said questions of law. According to them, these questions of law appear to have been formulated after hearing the counsel for the parties and appears to be formulated during the time of dictation. 17. Thus, obviously, according to them, they could not have been afforded any opportunity of hearing on the said questions of law, which were formulated subsequent to the hearing of arguments on Appeal by the learned Judge. 18. Even though, no specific ground has been raised by the Defendants in the appeal, but since this ground was orally argued before us, we thought it fit and proper to satisfy ourselves, after going through the original record. Original record also does not reflect or show that any order sheet was maintained by the learned Single Judge before 14.02.2003. We tried to find out from the Records, whether opportunity of hearing was given to the Learned Counsel for the parties to address their arguments on the substantial questions of law so formulated. But we are not able to find out any separate or specific order sheet mentioning therein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this Sub-section 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. 22. Sub-Section 3 of Section 100 of the Code is absolutely clear and in very categorical terms, it mandates that the memo of appeal shall precisely state the substantial questions of law involved in the appeal. The proviso appended to Section 100 gives power to the Court to formulate its own substantial questions of law, if after going through the record, it feels so. 23. As mentioned hereinabove, admittedly, no substantial question of law was formulated in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand has been made out. However, according to us, it would not be legally permissible to get the Second Appeal decided without affording the parties an opportunity of hearing on the substantial questions of law. Substantial justice between the parties would be done only when they are aware as to what case they are required to meet in the Court. Then and only then, they would be in a proper position to advance arguments on behalf of their clients. 30. Time and again, it has been pronounced in numerous judgments of this Court that no second appeal filed under Section 100 of the Code can be entertained or decided unless substantial questions of law have been formulated. We need not reiterate those cases as it is too well settled by now. In the given facts and circumstances, we have no alternative but to remand the matter to the High Court for deciding it afresh on merits and in accordance with law. 31. The High Court, while considering the Second Appeal, would also give an opportunity to both the parties to suggest as to which substantial questions of law would arise. Therefore, in the instant case, present Appellants i.e. Respondents in the Second Appeal are entitled to argue u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
