Case: Vijay Arjun Bhagat and Ors Vs. Nana Laxman Tapkire and Ors

1. This appeal is directed against the final judgment and order dated 19.07.2007 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Second Appealof 2002 whereby the Single Judge of the High Court allowed the appeal filed by1 & 2 herein and set aside the judgment/order dated 16.01.2002 passed by the District Judge, Ahmednagar in R.C.A.of 2000 and confirmed the judgmentpassed by the Civil Judge, Junior Division, Ahmednagar in R.C.S.of 1982.2. In order to appreciate the issues involved in the appeal, few relevant facts need to be mentioned hereinbelow.3. Theffs whereas thents in a civil suit out of which this appeal arises.4. Thefiled a civil suit (R.C.S. No. 600/1982) against thein the Court of Civil Judge, Junior Division, Ahmednagar for declaration that, (1) the suit properties described in detail in theare ancestral properties of theffs are the owners of the suit properties, and (3) the suit property described in1(A) is not a Trust property and be declared as theprivate property.5. Defendant No. 1 filed its written statement whereasNos. 3 and 4 filed their joint written statement. Theraised several objections about maintainability of the suit. They also deniedclaim on merits.6. The Trial Court framed issues. Parties adduced evidence in support of their case. By judgment and decree dated 10.12.1999, the Trial Judge though answered some issues infavour but eventually dismissed thesuit on merits.7. Thefelt aggrieved and filed First Appeal (R.C.A.in the Court of District Judge, Ahmednagar. By order dated 16.01.2002, the first Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and decreed thesuit.8. Against the said judgment, Defendant Nos. 3 & 4Nos. 1 & 2 herein) filed appeal being Second Appeal No. 274/2002 in the High Court of Bombay (Bench at Aurangabad). The High Courtadmitted the second appeal on the following substantial questions ofWhether the first appellate court has misread the document of partitionand therefore the finding in this behalf suffers from perversity.) Whether the first appellate Court has erroneously relied upon Xerox copies of the mortgage deed which is not registered.(D) Whether the first appellate Court has erroneously that the suit properties are the private properties of original) Whether the Civil Court has jurisdiction to decide the nature of the property which issue required to be dealt with by the Charity Commissioner.(F) Whether the suit is barred by limitation.By impugned judgment, the Single Judge of the High Court allowed the appeal and, in consequence, set aside the order passed by the District Judge in R.C.A.f 2000 and confirmed the judgmentpassed by the Civil Judge in R.C.S.of 1982 which has given rise to filing of the present appeal by way of special leave by thebefore this Court.

Reasoning:
11. Having heard the learnedfor the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.12. In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribedSection 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as. In other words, we find that the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribedSection 100 of the Code.16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as requireds (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as providedWe, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as2, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deservesIn our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso toof Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially theherein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learnedts, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learnednts much less the submissions urged on the merits of the controversy.