Case: Apparaju Malhar Rao Vs. Bandi Venkateshwarlu

2. We herein set out the facts, in brief, to appreciate the issue involved in this appeal.      3. The appellant herein is defendant No.1, respondent No.1 is the plaintiff (since dead) and respondent No. 2 is defendant No.3 (son of late defendant No.2) and respondent No.3 is the wife of defendant No.2. Defendant No.2 died during the pendency of the case before the High Court and his legal representative is respondent No.3 herein.      4. Respondentf filed a suit for perpetual injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the plaintiff in respect of land measuring 5 guntas and 7 sq. yds. (hereinafter referred to as suit land) in Survey No.1128/A situated at Mankanmathota in Karimnagar.      5. On 20.01.1995, the defendants filed written statement and denied the claim of the plaintiff. It was, inter alia, contended that the plaintiff is not the owner and possessor of suit land.      6. The Trial Court framed the issues and parties adduced their evidence. By judgment/decree dated 26.03.1999, the Trial Court decreed the suit in favour of the plaintiff.      7. Aggrieved by the said judgment/decree, the defendants filed first appeal being Appeal Suit No.34 of 1999 before the Additional District Judge (FTC), Karimnagar (A.P.). By judgment/decree dated 24.03.2004, the Additional District Judge allowed the first appeal, set aside the judgment/decree of the Trial Court and dismissed the suit.      8. Against the said judgment/decree, the plaintiff filed second appeal being S.A. No.743 of 2004 before the High Court.      9. The High Court, by the impugned judgment dated 13.12.2005, allowed the appeal and set aside the judgment/decree dated 24.03.2004 passed by the First Appellate Court in A.S. No.34 of 1999 and restored the judgment/decree dated 26.03.1999 passed by the Trial Court in O.S. No.338 of 1994 which had decreed the plaintiffs suit.      10. Felt aggrieved, defendant No.3 has filed this appeal by way of special leave before this Court.      11. Heard Mr. D. Mahesh Babu, learned counsel for the appellant. Nobody appears for the respondents.      12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order, remand the case to the High Court for deciding the second appeal afresh in accordance with law as indicated below.      13. The reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the plaintiff (respondent No.1 herein) did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the plaintiff.

Reasoning:
16. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant that it so arises but not beyond that as to whether it actually arises and, if so, what is that question17. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside.