Holding

The Supreme Court set aside the High Court judgment and remitted the case for fresh consideration, allowing the second appeal.

Summary

The plaintiffs, descendants of Durga Malakar, filed a title suit claiming ownership of certain lands based on a will dated 8 October 1958 and a probate order. The defendants asserted title through a sale deed executed by Durga's widow Gandhari and a subsequent deed of exchange. The trial court ruled in favor of the plaintiffs, but the first appellate court reversed, holding that the deed of gift was not proved and the suit lands did not correspond to those in the will. The High Court entertained a second appeal under CPC s.100, formulating a substantial question of law on whether the first appellate court erred in interpreting the exhibits, and dismissed the appeal. The Supreme Court held that the High Court had not considered the question correctly, set aside its judgment, and remitted the matter for fresh consideration, allowing the appeal.

Issues considered

Whether the findings of the first appellate court are vitiated by erroneous interpretation of the exhibits.
Whether the plaintiffs have a valid title to the suit lands based on the will and probate.
Whether the defendants acquired valid title through the sale deed and deed of exchange.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

land disputeinheritancewilldeed of giftsale deedsecond appealsubstantial question of lawprobatetitle suitCPC s.100

Judgment

LANKESHWAR MALAKAR AND ORS. A
v.
R. DEKA AND ORS.

NOVEMBER 30, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Code of Civil Procedure, 1908:

s. 100-Second appeal-Substantial question of law-Before High Court
contention raised that findings offirst appellate court regarding certain suit C
properties were contrary to records-Held, High Court should have considered
this question from correct perspective-Judgment of High Court set aside-
Matter remitted back to High Court for consideratirm afresh-It will be open
to High Court to formulate fresh question(s) of law.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4813 of2000. D
From the Judgment and Order dated 21-8-1998 of the Gauhati High
Court in S.A. No. 149/1998.

P.K. Goswami, Rajiv Mehta, 8. Aggarwal and A. Henry for the E
Appellants.

Rishi Maheshwari, R.K. Maheshwari, Ms. Tarannum Ansari and Raj
Kumar Kaushik for the Respondents.

The following Order of the Court was delivered by
F
ORDER

The plaintiffs are before us questioning the correctness or otherwise of
the judgment and order dated 21.8.1998 passed by a learned Single Judge of
the High Court of Assam, whereby and whereunder the second appeal preferred
by the appellant against a judgment and order dated 23 .5 .1988 passed by the G
Assistant District Judge, Barpeta, in Title Appeal No. 46/1986, was dismissed.
The basic fact of the matter is not in dispute.

The lands in suit and other lands belong to one Durga Malakar. He is
~s H
896 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A the paternal uncle of the plaintiffs' father Nareswar Malakar. The exact date
of death of Durga Malakar is not known. He left behind his widow, namely,
Gandhari. The dispute between the parties revolves on the execution of a will
by Durga Malakar in favour of the plaintiffs on 8.10.1958 and execution of
a purported Deed of Gift dated 5.5.1958, which was in the name of his wife
Gandhari.
B
Before we advert to the questions raised before us we may notice that
Gandhari by reason of a Sale Deed dated 21.1.1960 conveyed her right, title
and interest in the properties in question purported to be based on the said
Deed of Gift dated 25.5.1959 in favour of Hamchandra Malakar. Arvinda
C Sarma allegedly entered into a deed of exchange of land with the said
Hemchandra, grandfather of the r!!Spondent herein; pursu~t whereto the
grandfather allegedly came in possession of the lands in question. The names "i
of the respondents were entered into the revenue records of rights. The
plaintiffs therefore filed a suit in the Court of Munsif, Barpeta, which was
registered as title suit No. 111/1966. We may at this juncture notice that the
D plaintiffs filed an application for grant of probate in their favour which was
allowed by order dated 20th November, 1973.

The learned Trial Judge having regard to the pleadings of the parties
inter alia framed the following issues:

E l. Whether the Court has got pecuniary jurisdiction to try this suit?

2. Whether proper Court fees have been paid?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the plaintiff has got right, title and interest over the suit
F land?

5. Whether Gandhari, wife of Durga Malakar has saleable interest
over the suit land to sell it to one Hem Kanta Malakar?

6. Whether the defendants have acquired valid title over the suit land
G by means of 'exchange' as alleged in the written statement?

7. To what relief, if any, the parties are entitled?

8. Whether .the suit is barred by limitation?"

In the said suit the following prayers were made:
H
1_
LANKESHW AR MALAKAR v. R. DEKA 897
(i) "That the plaintiffs' possession of the land in schedule 'Ka' be A
confirmed on declaration of their title thereto and on declaration of.the
principal defendant's unlawful possession null and void;

(ii) that necessary precept be issued to the S.D.C., Bajali Circle, for
effecting mutation of the land in Schedule 'Ka' in favour of the
plaintiffs on the basis of the probate and their long tenn possession; B
(iii) That a perpetual prohibitory injunction be issued, restraining the
principal defendants from causing hindrance to the possession of the
land in Schedule 'Ka'."

Schedule 'Ka' of the plaint was described as under: c
SCHEDULE - "Ka"

Land measuring 1 Bigha 2 katha with a revenue of Rs. 2.24 paise
in dag 1628 (new)/548(old) of K.P. Patta No. 254(new)/9l(old) and
4 Katha 6 lechas (revenue Rs. 1.12) in dag 1660 (new)/476 (old) of D
the same patta within following boundaries:-

North - Bari Prasad;
South. - Nripen Sanna;
East Andhu Kalita;
E
West Arabinda Sanna/
Dag No. 1660/476.

North - Ram Nareesh. Sanna;

South - Tularam Talukdar; F
East Road;

West Kiron Sanna.

(2) Land measuring 2 Katha 16 lechas (revenue Rs. 1.12 Paise) in
dage 883 ofK.P. Patta No. 57 Old/368 (new) of Pathsala town, Mauza G
Uttar bajali, within the following boundaries:-

North - Kiron Sanna;

South - Kiron Sanna;
East Andhu Kalita; H
898 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A West Road.

Total land measuring 2 Bigha 4 Katha 2 techa in the two pattas in the
suit land.

The learned Trial judge decreed the suit inter alia on the premise that
.B Gandhari did not have any legal right to convey the suit land in favour of the
said Hemchandra Malakar and consequently the defendants-respondents did
not derive any right, title and interest pursuant to and in furtherance of the
said Deed of Sale or the Deed of Exchange executed in the year 1960.
Learned First Appellate Court however reversed the said judgment, principally
holding that the suit land and the lands described in the Will could not be co-
C related by the plaintiffs but came to he conclusion that the Deed of Gift was
not proved. The defendants-respondents did not prefer any appeal against the
said findings before the High Court. The plaintiffs-appellants did. The High
Court formulated the following substantial question of law:

"Whether the findings of the lower Appellate Court are vitiated by
D erroneous interpreting and misleading of the exhibits?"

Before the High Court, the contentions which inter a/ia had been raised
that the findings of the first Appellate Court was contrary to records as it
proceeded on the basis that the plaintiffs-appellants in the plaint did not
E mention in regtard to old Patta No. 57 in Schedule 'Ka' of plaint.

The properties mentioned in the will inter a/ia refers to Patta No. 91
(old), which is equivalent to Patta No. 254 (new), consisting of Dag No. 1628
(new), 548 (old) measuring an area of I Bigha 2 Katha as also Patta No. 57
(old), (368 new) being Dag No. 83, f!leasuring 2 Kathas and 16 lechas.
F The learned first Appellate Court, therefore, in our opinion, was not
correct in ignoring the said fact.

Furthermore, ifthe plaintiffs had given full description of the properties
in the plaint vis-a-vis the properties which were the subject matter of the
G Will, we are of the view that the first Appellate Court should have recorded
a findings on the basis of the materials on records. It only refers to the
deposition of one of the witnesses examined on behalf of the plaintiff and on
the basis thereof, came to the conclusion that the suit lands as described in
Schedule 'Ka' did not tally with the lands which were the subject matter or
the Will. In our opinion, the High Court should have considered this question
H from the correct perspective.
LANKESHW AR MALAKAR v. R. DEKA 899
Although we are not satisfied with the purported substantial question A
formulated by the High Court, having regard to the fact that the High Court
failed to determine the question in the proper perspective, it is necessary that
the second appeal be directed to be considered afresh on merit. We, therefore,
set aside the impugned judgment passed by the High Court and remit the
matter back to it for consideration thereof afresh. It will be open to the High B
Court to formulate fresh question/questions of law.

The appeal is allowed accordingly. No costs.

R.P. Appeal allowed.

(,