SUPREME COURT OF INDIA

Before:- M. Jagannadha Rao and Doraiswamy Raju, JJ.

Civil Appeal No. 4951 of 2000 and Arising out of SLP (C) No. 9351 of 1998. D/d. 8.9.2000.

Gurappa (Dead) By Lrs. - Appellant

Versus

Hanumanthappa And Others - Respondents

Civil Procedure Code, 1908, Section 100(4) - Second appeal - Maintainability of - Remand - Neither the substantial question of law framed nor High Court gone into the matter in detail to find out whether interference was permissible in the facts of case - Matter remitted back to High Court but to a judge other than the judge who disposed of the matter earlier - Appeal allowed.

[Paras 5 and 6]

ORDER

M. Jagannadha Rao, J. - Leave granted.

2. The respondent had been served in this matter in October 1999 and nobody is appearing on his behalf.

3. The plaintiff is the appellant before this Court. The suit was filed for declaration of title and cancellation of a sale deed dated 3-5-1954 and for a permanent injunction. The trial court partly decreed the suit by its judgment dated 16-7-1984. It held that the plaintiff is entitled to the northern half-portion of the suit property, but held that the suit regarding the southern half-portion of the property was liable to be dismissed. The defendants were permanently restrained from interfering with the possession and enjoyment of the northern half-portion of the property by the plaintiff.

4. On an appeal filed by the defendants, the judgment was confirmed by the appellate court. A second appeal was filed by the appellant. The High Court interfered with the judgment rendered by both the courts and dismissed the suit.

5. No substantial question of law was framed by the second appellate court, nor had it gone into the matter in detail to find out whether interference was permissible in the facts of the case under Section 100 of the Civil Procedure Code. We have no option but to set aside the judgment of the High Court and remit the matter back to the High Court for disposal in accordance with law.

6. The matter will be listed again before a Judge other than the Judge who had disposed of the matter earlier. The High Court is requested to dispose of the matter within a period of four months from the date of receipt of the copy of this order.

7. The appeal is allowed accordingly. There will be no order as to costs.

Appeal allowed.