UMERKHAN versus BISMILLABI @ BABULAL SHAIKH & ORS.

UMERKHAN versus BISMILLABI @ BABULAL SHAIKH & ORS.

The High Court reversed the first appellate court's judgment in the second appeal without formulating a substantial question of law, violating Section 100 CPC; such an action is impermissible and renders the judgment patently illegal. The appeal is allowed and the matter remitted to the High Court for fresh consideration in accordance with law.

Parties
Appellant (1st Defendant): Umerkhan; Respondent (plaintiff): Bismillabi @ Babulal Shaikh; Respondent (2nd Defendant): Aminabi
Jurisdiction
India
Judgment Date
28 July 2011
Procedural Posture
Civil Appeal / Supreme Court Decision on Appeal From High Court
Outcome
Appeal allowed; judgment of High Court set aside, second appeal restored for fresh consideration.
Legal Topics
Second Appeal, Jurisdiction of High Court, Adverse Possession, Partition
Civil Procedure Second Appeal Jurisdiction of High Court Adverse Possession Partition

Case Brief

Summary, issues, holding and outcome

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Parties

Umerkhan

Appellant (1st Defendant)

Bismillabi @ Babulal Shaikh

Respondent (plaintiff)

Aminabi

Respondent (2nd Defendant)

Procedural Posture

Civil Appeal / Supreme Court Decision on Appeal From High Court

Legal Issues

  1. 1 Whether the High Court can reverse a first appellate court judgment in second appeal without formulating a substantial question of law under Section 100 of the Code of Civil Procedure.
  2. 2 Whether adverse possession was established by the 1st defendant with respect to the suit property.

Ratio Decidendi

The High Court reversed the first appellate court's judgment in the second appeal without formulating a substantial question of law, violating Section 100 CPC; such an action is impermissible and renders the judgment patently illegal. The appeal is allowed and the matter remitted to the High Court for fresh consideration in accordance with law.

Court Disposition

Appeal allowed; judgment of High Court set aside, second appeal restored for fresh consideration.

Orders

  • Impugned judgment of High Court is set aside.
  • Second Appeal No. 528 of 2001, Bismillabi v. Umerkhan and Ors., restored to the file of the High Court for fresh consideration in accordance with law.