Pooran Chandra Joshi vs Biswan Chandra Harris (D)Thr. Lrs.

2. The predecessor in title of the respondents­plaintiffs had filed a suit bearing Suit No.52 of 1966 before the Munsif Court, Nainital in respect of the House Property No.51, Mohalla Sakahawat Ganj, Haldwani, consisting of 6 rooms with toilet, one kitchen and two verandahs. The predecessor in title of the respondents had purchased the said house from one Zamir Ahmad. The predecessor in title of the appellants (defendant) was inducted as a tenant in the said premises during the life time of the previous owner, Akhtari Begum, who died in 1954.

3. According to the respondents, the suit property was gifted by Akhtari Begum to her brother Zamir Ahmad (for short “the donee”) by way of a gift deed dated 31.05.1949. In the said gift deed, the donor has clearly stated that:

5. The said suit was dismissed by the Munsif Court, Nainital vide its judgment dated 26.09.1969. The trial court held that the gift deed was not valid as it was not accompanied by giving possession of the suit property to the donee and that the donee (Zamir Ahmad) did not have a valid title of ownership which he could transfer to the plaintiff. On this finding, the trial court opined that no relationship of landlord and tenant existed between the parties.

15. Aggrieved, the appellants­defendants have challenged the impugned judgment, whereby the suit was decreed in favour of the respondents­plaintiffs and ordering eviction of the appellants­ defendants from the suit premises with consequential directions.

23. In other words, in the facts of the present case there has been substantial compliance of Section 100 of C.P.C., as amended. Significantly, the proviso to Section 100 (5) read with the latter part of Rule 2 of Order XLII enables the High Court to reframe the substantial question of law already formulated and even permit any 20 other substantial question of law not formulated, after recording reasons, if it is satisfied that the case involves such question. This discretion has been bestowed on the High Court to ensure full, complete and effectual adjudication of all the matters in issue between the parties and to do complete justice. In our opinion, therefore, in the facts of the present case, there has been compliance of Section 100 of C.P.C. as also Order XLII of C.P.C. It is not open to the appellants­defendants to now raise an issue of non­ formulation of substantial question of law while admitting the appeal, having failed to challenge the order dated 07.05.1980 (admitting the second appeal) and dated 15.07.2006 (allowing the respondents­plaintiffs to amend the memorandum of second appeal with an observation that the court will formulate the substantial question of law at the time of hearing of the appeal). Suffice it to note that the High Court, has, in fact, formulated a substantial question of law and heard the parties on that question, as can be discerned from paragraph 9 of the impugned judgment. Therefore, we do not find any merit in the first contention raised by the appellants­defendants.

Each case would depend on its own facts.

29. Accordingly, we dismiss this appeal with no order as to costs.

In view of the judgment in the companion civil appeal bearing Civil Appeal No.6139 of 2009 on merits of the issues dealing with the selfsame gift deed dated 31.05.1949, which is also the subject matter of the present appeal, for the same reasons even this appeal must fail and the same is, therefore, dismissed with no order as to costs.