IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1314 (M/S) of 2004 Murli Singh and another …Petitioners Versus State and others …Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Lok Pal Singh, the learned counsel for the petitioners, Mr. H.M. Raturi, the learned Standing Counsel for the State/respondent no. 1 and Mr. Raman Kumar Shah, the learned counsel for respondent no. 3. One Murli Singh purchased a property in the year 1947. According to him, he had invested his own money, but the land was purchased in the name of himself, i.e., Murli Singh, Jhalli Singh and Amar Singh. It is alleged by Murli Singh that the names of Jhalli Singh and Amar Singh were Benami names. Jhalli Singh died in the year 1960 leaving behind his widow. It is alleged that soon after Jhalli Singh’s death, the widow left the matrimonial home and also wrote a document relinquishing her rights in the property in question in favour of Murli Singh. Murli Singh contends that since then he has been in exclusive possession. Quite apart from the fact that Murli Singh was the ostensible owner, he had also perfected his right by adverse possession. In the year 1986, Smt. Balmati, the widow of Jhalli Singh, filed a suit for partition claiming that she is entitled to a share in the property since her husband was a recorded tenure holder. This suit was contested by Murli Singh, who had also filed another suit for declaration in the year 1987 that he is the lawful owner and is in exclusive possession of the 2 property in question since Smt. Balmati had relinquished her rights in his favour. The Assistant Collector, by an order dated 17th February, 1991, decreed the suit of Smt. Balmati and dismissed the suit for declaration of the petitioners. The petitioner filed an appeal, which was allowed and the order of the Assistant Collector was set aside. The appellate court held that the petitioner was in exclusive possession and that Smt. Balmati had relinquished her rights in favour of the petitioner. Smt. Balmati, being aggrieved by the appellate order, filed a second appeal, which was allowed and the order of the appellate court was set aside and the order of the Assistant Collector was affirmed. The petitioner, being aggrieved, has filed the present writ petition questioning the order of the second appellate court. The learned counsel for the petitioner contended that the memo of the second appeal did not frame any substantial question of law nor was the appeal admitted after framing the substantial question of law. However, the substantial question of law was framed by the court itself while dictating the judgment, which was wholly illegal in gross violation of the provision of Section 100 of the Civil Procedure Code, which is applicable to appeals being filed under Section 331(4) of the U.P.Z.A. & L.R. Act. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Mahadeva and others vs. Tanabai, (2004) 5 SCC 88 and another decision of the Supreme Court in H.P. Pyarejan vs. Dasappa (Dead) by LRs and others, (2006) 2 SCC 496. The learned counsel further submitted that only 3 one substantial question of law was framed, which was totally insufficient to decide the matter and that the findings of the lower appellate court, which were crucial and went to the root of the matter, were neither considered nor set aside and therefore, without reversing the findings of the lower appellate court, the second appellate court committed a manifest error in allowing the appeal. Having heard the learned counsel for the parties, the Court finds that only one substantial question of law was framed, namely, “whether the suit for declaration filed by the petitioners could be decreed on the ground of adverse possession.” In this regard, the Court finds that the trial court had observed that in Uttarakhand many people are working outside the State and therefore, on the ground of adverse possession a decree could be passed, which is not permissible. The Court finds that the second appellate court committed a manifest error in rejecting the stand of the petitioners only on this ground. The finding arrived at by the second appellate court is not based on any documentary evidence on record, but is based on his personal knowledge, which is not permissible. Such personal information cannot be allowed to come in the way while passing an order. The second appellate court committed a manifest error in this regard. The Court further finds that the findings of the first appellate court has not been set aside. The question whether the relinquishment deed given by Balmati could be considered and in this regard, the suit of Balmati could be decreed or not, was a substantial ground for framing a question of law. It is 4 not only the suit of the petitioner which is to be considered as to whether the suit was liable to be decreed or not, but, simultaneously, the Court was also required to consider whether the suit of Smt. Balmati could be decreed under Section 171 read with Section 178 of the Act. Section 171 relates to law of succession and admittedly, Smt. Balmati is the widow of a tenure holder and is liable to succeed, but the Court is required to consider the fact as to whether the relinquishment deed allegedly executed by Smt. Balmati could divest Smt. Balmati of her vested right or not. These aspects have not been considered nor the court has given any finding on adverse possession. In the light of the aforesaid, the Court is of the opinion that the second appellate order dated 29th October, 2004, cannot be sustained and is quashed. The writ petition is allowed. The matter is remitted to the second appellate court again, who is directed to decide the matter afresh after framing substantial questions of law, if any, and thereafter hear the parties and give a finding to that effect. The second appellate court is directed to decide the matter afresh within three months from the date of production of a certified copy of this order. In the circumstances of the case, parties shall bear their own cost. (Tarun Agarwala, J.) 23-11-2011 Salim/