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TMI Blog1997 (5) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... d annually on advance rent. On 30th June, 1954, the principle defendants (defendants Nos. 1 and 2) trespassed into the suit land and dispossessed the 4th defendant. Subsequently, the trespassers got their names recorded as Korfa tenants of the suit land at different fictitious jamas under Kshirodamani, the plaintiff's vendor, in the R.S. record. The Plaintiff's vendor Kshirodamani never settled the suit land by granting Patta to or accepting any Kabuliyat from such trespassers. On these and other averments the suit was filed for declaration of plaintiff's title to the suit property and for recovery of the same from the defendants. 2. The main contesting defendants are defendant Nos. 1 and 2. They put forward the plea that the suit was not maintainable, that they were cultivating tenants as thika tenants, under the plaintiff's vender on payment of advance rent and the land was settled with them on a permanent basis. The third defendant is the State of West Bengal. The State pleaded that the suit was not maintainable and they have been unnecessarily impleaded. The trial court decreed the suit. It was found that the plaintiff has title to the suit land and the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a question of law and the Court acted within its jurisdiction in entertaining the said question of law and in disposing of the Second Appeal on that basis. 4. In order to appreciate the rival pleas urged before us regarding the legality and propriety of the disposal of the Second appeal by the High Court, few broad facts of the case should be borne in mind. As stated, the suit was one for declaration of title and for recovery of possession of the suit property. The plaintiff in the suit possessed the land through the 4th defendant with whom the land was settled annually. The contesting (principle) defendants trespassed into the suit land and dispossessed the 4th defendant on 30.6.1954. The West Bengal Estates Acquisition Act. 1953, hereinafter referred to as `the Act' came into force on 10.4.1956. The trial court decreed the plaintiff suit. It was also found that the defendants failed to establish their case, that they took settlement of the land in the suit from the plaintiff's vendor, Kshirodamani. Kshirodamani was found to be in possession of the suit land. The decree so passed by the trial court was affirmed in appeal by the learned Sub-ordinate Judge who also held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be permitted to be raised. The learned Judge of the Calcutta High Court adverted to the above aspect and has opined thus:- ......... the plea of non- maintainability of the suit is essentially a legal plea and if the suit on the face of it is not maintainable, the fact that no specific plea was taken or no precise issues were framed is of little consequence. In the present case the suit on the face of it appears to be not maintainable in law and therefore, the point raised on behalf of the appellants although it was not agitated in any of the two court below should in my view, be entertained. I am unable to accept the submissions made on behalf of the respondent that the said point of law cannot be canvassed for the first time before this Court by the appellants. (emphasis supplied) Holding that on the date of vesting the plaintiff's vendor was not in possession of the suit land and the defendants trespassed in the suit land and dispossessed the fourth defendant much earlier on 30th June, 1954 and so, Section 6(1)(d) of the Act does not apply, the learned single Judge held that the present suit for recovery of possession of the suit land is not maintainable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed) The Amendment Act of 1976 has drastically restricted the scope of second appeals and the jurisdiction of the Court to entertain second appeals is hedged in by limitations. 7. Delivering the judgment of a two member Bench in Panchugopal Barua ors. Vs. Umesh Chandra Goswami Ors. (Civil Appeal No. 3631/930 one of us (Dr. Anand, J.) in his judgment dated 12.2.1997 has lucidly explained the scope of Section 100 C.P.C. as amended, thus:- A bare look at Section 100 C.P.C. shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the Section shows that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercised its jurisdiction under the proviso to sub- section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation of abdication of the duty cast on Court and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has exercise its jurisdiction under Section 100 C.P.C should always be borne in mind. We are sorry to state that the above aspect are seldom borne in mind in may case and second appeals are entertained and/or disposed of without conforming to the above discipline. The guidelines to determine as to what is a substantial question of law within the meaning of Section 100 C.P.C., have been laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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