IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.190 of 2006 SAIRA BANO Versus BIBI JASIMA KHATOON & ANR ----------- 13/ 01.12.2008 Heard learned counsel for the petitioner and learned counsel for the opposite parties in the review matter. This petition has been filed by the sole defendant-appellant- appellant-petitioner for review of order dated 21.08.2003 by which a Bench of this court, namely, Hon’ble Mr. Justice Ashok Kumar Verma dismissed Second Appeal No. 531 of 1999, which was as follows: “Heard. There is no merit in this second appeal. It is concluded by findings of fact. No substantial question of law is involved in it. The appeal is dismissed under Order XLI Rule 11 C.P.C.” Learned counsel for the petitioner submits that by the said order the second appeal was dismissed in limine without considering the facts and circumstances of the case and without appreciating and discussing the points and questions raised by the appellant in the second appeal. He further submits that the Hon’ble Apex Court in several decisions has deprecated such dismissal without considering the points raised by the appellant and hence on this point alone the said order has to be reconsidered and reviewed. Learned counsel for the appellant further submits that there were several substantial questions of law raised by the appellant-petitioner in the aforesaid second appeal as both the learned courts below in title suit as well as in title appeal had committed grave errors of law and record 2 while passing their respective judgments and decree. It is further stated that the original plaintiff, who was the predecessor of the opposite parties had filed the suit against the petitioner for more than seven acres of land but the deeds of gift (Exts.A and A/1), which were in favour of the defendant (appellant-petitioner) and were challenged in the suit, were with respect to much smaller area of less than three acres of land but the said aspect of the matter was completely ignored while allowing the claim of the plaintiff with respect to the larger area. It is also claimed that the trial court framed issue no.(vii) with respect to description of the suit property but failed to consider it in the light of discrepancies in the plaint regarding the impugned gifts. It was also claimed that the sole defendant (appellant-petitioner) deposed as DW.4 but her entire claims were rejected on the basis of one vague statement made during cross- examination without appreciating the evidence of the said witness in her examination-in-chief and other parts of cross-examination. He further submits that the execution of deeds of gift was challenged by the original plaintiff, who was the executant of the deeds himself and hence it was incumbent upon the plaintiff and the court to get the L.T.I. on the deeds of gift examined by an expert, which was necessary, specially due to close relations between the parties. Although learned counsel for the opposite parties vehemently opposes the contentions of learned counsel for the petitioner but he is unable to meet the points raised by learned counsel for the appellant- petitioner in view of the specific decisions of the Hon’ble Apex Court as well as the materials on record. 3 Considering the aforesaid facts and circumstances of this case, this civil review case is allowed. Order dated 21.08.2003 passed in S.A. No. 531 of 1999 is reviewed and in its place following order is passed: S.A. No.531 of 1999 will be heard. Admit. Following substantial questions of law arise for consideration in the said second appeal: (i) Whether the learned courts below committed a serious error of record by ignoring the property involved in the plaint, which was much more than the property involved in the registered deeds of gift (Exts.A and A/1), which were under challenge in the suit? (ii) Whether the learned courts below were justified in ignoring the defect in the description of the suit property, although issue no.(vii) with respect thereto was framed by the learned trial court itself? (iii) Whether the learned courts below were justified in relying upon merely one vague sentence of DW.4 during her cross-examination without appreciating her evidence as a whole, specially her statement in examination-in-chief as well as in other parts of cross-examination? (iv) Whether the execution of deeds of gift having been challenged by the executant, who was the original plaintiff, it was necessary in the ends of justice to get his L.T.I. examined by an expert specially when the relation between the parties was so close? Let appeal notice be sent to both the respondents in S.A. No. 531 of 1999 by ordinary process for which Talbana, etc. must be filed within one week, failing which the said second appeal shall stand dismissed without further reference to a Bench. Call for the records from the learned court below. harish/ ( S.N.Hussain, J.)