Uttarakhand High Court
SA/9/2010 on 2 April, 2026
Office Notes,
reports, orders
or proceedings
SL. or directions
Date COURT'S OR JUDGES'S ORDERS
No and
Registrar's
order with
Signatures
SA No.09 of 2010
Hon'ble Siddhartha Sah, J.
Heard Mr. Sudhir Kumar, learned counsel for the
appellants and Mr. S. K. Jain, learned Senior Advocate assisted
by Mr. Vineet Bakshi (through V.C.) and Mr. Siddhartha Jain,
learned counsel for the respondents.
Misc. Application (IA No.2446 of 2023).
2. Misc. Application (IA No.2446 of 2023) has been filed by
the appellants on the premise that the present appeal has been
admitted on two substantial questions of law and the question of
law no.B was subsequently modified. It has been further stated in
the said application that while preparing the appeal for
arguments, it was revealed that the appeal involves some more
important legal issues, which have considerable impact on the
decision of the present appeal and the same may also be framed
as substantial questions of law and be also considered at the time
of hearing of the appeal.
3. The following two substantial questions of law D and E
were sought to be framed as additional substantial questions of
law:-
D. Whether the plaintiffs/respondent had any subsisting
interest in the property in dispute on the date of suit so as to
enable them to file the present suit for cancellation of sale
deed in favour of the predecessors of the appellants?
E. Whether the suit of the plaintiffs/respondent was not
legally maintainable being barred by Section 34 of the
Specific Relief Act?
Objections have been filed on behalf of the respondent
no.1 to the said application (IA No.2446 of 2023). The
objections to the proposed substantial questions of law no. D has
been made to by the respondent no.1 on the premise that the said
proposed substantial question of law is against the finding, which
has attained finality with respect to gift deed dated 17.03.1935.
The finding as to the life estate of Smt. Bhagwati Devi in the
property in suit through the said gift deed dated 17.03.1935 is
also conclusive, and on her demise the property in suit would
vest absolutely in her son and son’s son. On the date of filing of
the instant suit no doubt Smt. Bhagwati Devi was alive and the
prayer then was “bl vej dks Qjek;k tkos fd nksuksa cSukesa cgd izfroknh
la01 o 2 fnukad 16-6-67 izfroknh ua03 dh e`R;q i’pkr uktk;t voS/k ?kksf”kr
fd, tkos o ckn oQkr izfroknh la0 3 tk;nkn eqrukok dk ekfyd eqnbZ ua0 2
vFkok eqnb;ku 1 o 2 viuk eqnb ua 1 ftls vnkyr equkflc le>s djk nsus
dh d`ik djsA” i.e., the prayer then was that, it be declared that sale
deed dated 16.06.1967 in favour of Sh. Ram Murti and Smt.
Muni Devi would be null and void on the demise of Smt.
Bhagwati Devi, and any other relief which the learned court
deems fit and proper be ordered.
Pertinently the life-estate of Smt. Bhagwati Devi closed
and concluded on the demise of Smt. Bhagwati Devi in the year
1985, i.e., during the pendency of the First Appeal. No
cancellation of sale deed or any declaration to declare the sale
deed dated 16.06.1967 was ever prayed by respondent No.1 in
the parent suit on the date of filing of the suit, as such under the
facts and circumstances which is admitted on record, the
proposed substantial question of law ‘D’ is inconsequential.
4. Objections to the proposed substantial question of law ‘E’
was that the same is beyond pleadings of appellants and as such
cannot be called to be framed. An entirely new point raised for
the first time is not the question involved in the case as such the
proposed substantial question of law ‘E’ is beyond the scope.
Hence, on the aforesaid premise, the IA No.2446 of 2023 is not
legally maintainable and is liable to be dismissed.
5. While pressing the application (IA No.2446 of 2023) on
behalf of the appellants, Mr. Sudhir Kumar, Advocate drew the
attention of the Court to Section 6, 10 and 43 of the Transfer of
Property Act, 1882. He also referred to Section 14(1) of the
Hindu Succession Act, 1956, and Order 41 Rule 22 & Section 11
of CPC.
6. The submission of learned counsel for the appellants is
that a question of law can be formulated if it goes to the root of
the matter.
7. Per contra, Mr. S. K. Jain, learned Senior Advocate for
the respondents submitted that the substantial questions of law is
sought to be framed as additional question of law ‘E’.
Foundation for the same is missing in the W.S., first appeal as
well as the second appeal.
8. Learned Senior Advocate for the respondents placed
reliance upon the judgment of Hon’ble Supreme Court in the
case of ‘Nazir Mohamed v. J. Kamala and Others‘, reported in
AIR 2020 Supreme Court 4321 and referred to paragraph nos.
25, 33, 34 and 58 thereof and stressed that when pleading is
silent on the substantial question of law in the trial court as well
in the first appeal, the scope of second appeal cannot be
enlarged. Paragraph nos.25, 33, 34 and 58 are extracted below:-
25. A second appeal, or for that matter, any appeal is not a matter of
right. The right of appeal is conferred by statute. A second appeal only
lies on a substantial question of law. If statute confers a limited right of
appeal, the court cannot expand the scope of the appeal. It was not open
to the respondent-plaintiff to reagitate facts or to call upon the High Court
to reanalyse or reappreciate evidence in a second appeal.
33. To be a question of law “involved in the case”, there must be first, a
foundation for it laid in the pleadings, and the question should emerge
from the sustainable findings of fact, arrived at by courts of facts, and it
must be necessary to decide that question of law for a just and proper
decision of the case.
34. Where no such question of law, nor even a mixed question of law and
fact was urged before the trial court or the first appellate court, as in this
case, a second appeal cannot be entertained, as held by this Court
in Panchugopal Barua v. Umesh Chandra Goswami [Panchugopal
Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713] .
58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba
Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , this Court
held : (SCC pp. 724-26, paras 3-4 & 6)
“3. After the amendment a second appeal can be filed only if a substantial
question of law is involved in the case. The memorandum of appeal must
precisely state the substantial question of law involved and the High Court
is obliged to satisfy itself regarding the existence of such a question. If
satisfied, the High Court has to formulate the substantial question of law
involved in the case. The appeal is required to be heard on the question so
formulated. However, the respondent at the time of the hearing of the
appeal has a right to argue that the case in the court did not involve any
substantial question of law. The proviso to the section acknowledges the
powers of the High Court to hear the appeal on a substantial point of law,
though not formulated by it with the object of ensuring that no injustice is
done to the litigant where such a question was not formulated at the time
of admission either by mistake or by inadvertence.
4. It has been noticed time and again that without insisting for the
statement of such a substantial question of law in the memorandum of
appeal and formulating the same at the time of admission, the High
Courts have been issuing notices and generally deciding the second
appeals without adhering to the procedure prescribed under Section 100
of the Code of Civil Procedure. It has further been found in a number of
cases that no efforts are made to distinguish between a question of law
and a substantial question of law. In exercise of the powers under this
section the findings of fact of the first appellate court are found to have
been disturbed. It has to be kept in mind that the right of appeal is neither
a natural nor an inherent right attached to the litigation. Being a
substantive statutory right, it has to be regulated in accordance with law
in force at the relevant time. The conditions mentioned in the section must
be strictly fulfilled before a second appeal can be maintained and no court
has the power to add to or enlarge those grounds. The second appeal
cannot be decided on merely equitable grounds. The concurrent findings
of facts howsoever erroneous cannot be disturbed by the High Court in
exercise of the powers under this section. The substantial question of law
has to be distinguished from a substantial question of fact. …
***
6. If the question of law termed as a substantial question stands already
decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court, its merely
wrong application on the facts of the case would not be termed to be a
substantial question of law. Where a point of law has not been pleaded or
is found to be arising between the parties in the absence of any factual
format, a litigant should not be allowed to raise that question as a
substantial question of law in second appeal. The mere appreciation of the
facts, the documentary evidence or the meaning of entries and the contents
of the document cannot be held to be raising a substantial question of law.
But where it is found that the first appellate court has assumed
jurisdiction which did not vest in it, the same can be adjudicated in the
second appeal, treating it as a substantial question of law. Where the first
appellate court is shown to have exercised its discretion in a judicial
manner, it cannot be termed to be an error either of law or of procedure
requiring interference in second appeal.”
9. Learned Senior Advocate for the respondents also placed
reliance upon the judgment of Hon’ble Supreme Court in the
case of ‘State of Orissa vs. Duti Sahu and others‘, reported in
AIR 1997 Supreme Court 1040 and referred to paragraph no.9
thereof, which is extracted below:-
“9.Generally speaking, an appellant is not to be allowed to set up a new
case in second appeal or raise a new issue (otherwise than a jurisdictional
one), not supported by the pleadings or evidence on the record and unless
the appeal involves a substantial question of law, a second appeal shall
not lie to the High Court under the amended provisions. In the present
case, no such question of law was formulated in the memorandum of
appeal in the High Court and grounds (6) and (7) in the memorandum of
the second appeal on which reliance is placed did not formulate any
substantial question of law. The learned Single Judge of the High Court
also, as it transpires from a perusal of the judgment under appeal, did not
formulate any substantial question of law in the appeal and dealt with the
second appeal, not on any substantial question of law, but treating it as if
it was a first appeal, as of right, against the judgment and decree of the
Subordinate Court. The intendment of the legislature in amending Section
100 CPC was, thus, respected in its breach. Both the trial court and the
lower appellate court had decided the cases only on questions of fact, on
the basis of the pleadings and the evidence led by the parties before the
trial court. No pure question of law nor even a mixed question of law and
fact was urged before the trial court or the first appellate court by the
respondent. The High Court was, therefore, not justified in entertaining
the second appeal on an altogether new point, neither pleaded nor
canvassed in the subordinate courts and that too by overlooking the
changes brought about in Section 100 CPC by the Amendment Act of 1976
without even indicating that a substantial question of law was required to
be resolved in the second appeal. To say the least, the approach of the
High Court was not proper. It is the obligation of the courts of law to
further the clear intendment of the legislature and not to frustrate it by
ignoring the same.”
10. Learned Senior Advocate for the respondents also placed
reliance upon the judgment of Hon’ble Supreme Court in the
case of ‘Kondiba Dagadu Kadam v. Savitribai Sopan Gujar &
Others‘ reported in AIA 1999 Supreme Court 2213 and referred
to paragraph no.5 and 6 thereof and made the submissions that
both the proposed substantial questions of law were not pleaded
by the appellants before the trial court or the first appellate court
and for the first time, the substantial questions of law are sought
to be framed. Paragraph nos.5 and 6 are extracted below:-
“5. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of fact,
being the first appellate court. It is true that the lower appellate court
should not ordinarily reject witnesses accepted by the trial court in
respect of credibility but even where it has rejected the witnesses accepted
by the trial court, the same is no ground for interference in second appeal
when it is found that the appellate court has given satisfactory reasons for
doing so. In a case where from a given set of circumstances two inferences
are possible, one drawn by the lower appellate court is binding on the
High Court in second appeal. Adopting any other approach is not
permissible. The High Court cannot substitute its opinion for the opinion
of the first appellate court unless it is found that the conclusions drawn by
the lower appellate court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon inadmissible
evidence or arrived at without evidence.
6. If the question of law termed as a substantial question stands already
decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court, its merely
wrong application on the facts of the case would not be termed to be a
substantial question of law. Where a point of law has not been pleaded or
is found to be arising between the parties in the absence of any factual
format, a litigant should not be allowed to raise that question as a
substantial question of law in second appeal. The mere appreciation of the
facts, the documentary evidence or the meaning of entries and the contents
of the document cannot be held to be raising a substantial question of law.
But where it is found that the first appellate court has assumed
jurisdiction which did not vest in it, the same can be adjudicated in the
second appeal, treating it as a substantial question of law. Where the first
appellate court is shown to have exercised its discretion in a judicial
manner, it cannot be termed to be an error either of law or of procedure
requiring interference in second appeal. This Court in Reserve Bank of
India v. Ramkrishna Govind Morey [(1976) 1 SCC 803 : AIR 1976 SC
830] held that whether the trial court should not have exercised its
jurisdiction differently is not a question of law justifying interference.”
11. Mr. Sudhir Kumar, learned counsel for the appellants
referred to the issues framed by the trial court and made a
submissions that these issues by and large cover the proposed
substantial questions of law and therefore, the proposed
substantial questions of law need to be formulated for just and
proper decision of the second appeal.
12. He also relied upon the judgment of Hon’ble Supreme
Court in the case of ‘Nazir Mohamed v. J. Kamala and Others‘,
reported in AIR 2020 Supreme Court 4321 and drew the
attention of the Court to paragraph nos.32, 33 and 37 thereof,
which is extracted below:-
32. To be “substantial”, a question of law must be debatable, not
previously settled by the law of the land or any binding precedent, and
must have a material bearing on the decision of the case and/or the rights
of the parties before it, if answered either way.
33. To be a question of law “involved in the case”, there must be first, a
foundation for it laid in the pleadings, and the question should emerge
from the sustainable findings of fact, arrived at by courts of facts, and it
must be necessary to decide that question of law for a just and proper
decision of the case.
37. The principles relating to Section 100 CPC relevant for this case may
be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a
question of fact, but the legal effect of the terms of a document is a
question of law. Construction of a document, involving the application of
any principle of law, is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a principle of law
in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial
question of law, and not a mere question of law. A question of law having
a material bearing on the decision of the case (that is, a question, answer
to which affects the rights of parties to the suit) will be a substantial
question of law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents, and, involves a
debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation,
where the legal position is clear, either on account of express provisions
of law or binding precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In the second
type of cases, the substantial question of law arises not because the law is
still debatable, but because the decision rendered on a material question,
violates the settled position of law.
(iv) The general rule is, that the High Court will not interfere with the
concurrent findings of the courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are where : (i) the courts below
have ignored material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of proof. A
decision based on no evidence, does not refer only to cases where there is
a total dearth of evidence, but also refers to case, where the evidence,
taken as a whole, is not reasonably capable of supporting the finding.
13. Mr. Sudhir Kumar, learned counsel for the appellants had
taken the Court through the Issues that were framed by the trial
court. The said issues read as under:-
1. Whether the property in suit was ancestral of Deep Chand
deceased or was his self acquired property? If so, its effect?
2. Whether the condition contained in the deed dated 17th March,
1935 is void as alleged in para 36 (b) of the W.S.? if so, its effect?
3. Whether the transfers made by Sri Goverdhan Dass regarding
the property in suit are valid and binding on the plaintiff ?
4. Whether the plaintiffs are not entitled to sue ?
5. Whether Goverdhan Dass was ostensible owner of the property
in suit and whether the suit is barred by the principle of estoppels
and principle of feeding the estoppels?
6. Does the sale of the right of repurchase made by the official
receiver binds the plaintiffs interest as wall?
7. To what relief, if any, and which of the plaintiff or both entitled
?
8. Whether the transfer of the property in suit by Bhagwati Devi in
favour of the defendants was for legal necessity and benefit of
estate ?
9. Whether the contesting defendants obtained full ownership or
only life interest by virtue of the saledeeds dated 16.6.67? either
way, its effect on the suit ?
10. Whether the transfers in favour of the contesting defendants
No. 1 and 2 which were subject matter of the suit, were bad in law
and are hit by theory of lispendens ?
14. Learned counsel for the appellants referred to Issue nos.3,
4 and 5 as framed by the trial court.
15. Learned counsel for the appellants further submits that
pith and substance on the said issues is reflected in proposed
substantial question of law ‘D’ as sought to be framed vide
application (IA No.2446 of 2023). On a consideration of the said
application and the objections filed against the same, it emerges
that the proposed substantial question of law ‘D’ would be a
necessary for just and effective adjudication of this second
appeal, since it goes to the root of the matter and is based on the
pleadings before the trial court and also covered by issue nos. 3,
4 and 5. So far as, the proposed substantial question of law ‘E’ is
concerned, on a perusal of the pleadings and the memo of first
appeal and the second appeal, it appears that particularly
proposed substantial question of law ‘E’ does not have any
foundational basis in the pleadings or the memo of the first
appeal.
16. In such view of the matter, the Application (IA No.2446 of
2023) is partly allowed. The proposed substantial question of law
‘D’ is framed as substantial question of law no.3.
17. List this matter on 17.04.2026 for hearing.
(Siddhartha Sah, J.)
02.04.2026
Akash
