# Mohd. Farooq Siddiqui v. Smt. Saeeda Bano

- **Citation:** (2021) 8 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Second Appeal No. 53 of 2015
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-farooq-siddiqui-v-smt-saeeda-bano-47153
- **Pages:** 9

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Second Appeal -
Substantial question of law - Oral hiba
(Gift) under Mohammadan law - No
delivery of possession in pursuance of
hiba, rather donee is continuing the
possession prior to execution of hiba as a
tenant - Relevance thereof - No finding
with regard to possession after the hiba
recorded - No statement in the hibanama
with regard to transfer of possession in
favour of the donee - Rasheeda Khatoon's
principle applied - Since the transfer of
possession of the premises in question is
an essential ingredient of hiba, the first
appellate court has recorded that the
transfer of possession in lieu of hiba was
not proved - Held, judgment and order of
the first appellate court reversing the
findings of fact recorded by the trial court
is based on the material evidence on
record, no substantial question of law
pertaining to the same arises in the
second appeal. (Para 19, 21, 22, 24, 25
and 29)
B. Second Appeal - Specific Relief Act,
1963
-
Section
34
-
Civil
Suit
-
Maintainability - Sale deed executed -
Omission to challenge it - Effect - First
appellate court has held that since the
additional prayer required to be taken
seeking
cancellation
of
sale
deed
favouring the defendants has not been
taken, the suit would therefore be barred
in terms of proviso to Section 34 of the Act
-
Held,
the
question
regarding
maintainability of the suit in terms of
Section 34 of the SR Act has to be seen
with regard to pleadings made in the
plaint and would therefore be a question
of law which can be taken at any stage.
(Para 18 and 26)
Appeal dismissed. (E-1)
Cases relied on :-

## Text

8 All. Mohd. Farooq Siddiqui Vs. Smt. Saeeda Bano
1
(2021)08ILR A1
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.08.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Second Appeal No. 53 of 2015

Mohd. Farooq Siddiqui ...Appellant
Versus
Smt. Saeeda Bano ...Respondent

Counsel for the Appellant:
M.A. Siddiqui, M.A. Siddiqui

Counsel for the Respondent:
Subhash Vidyarthi

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Second Appeal -
Substantial question of law - Oral hiba
(Gift) under Mohammadan law - No
delivery of possession in pursuance of
hiba, rather donee is continuing the
possession prior to execution of hiba as a
tenant - Relevance thereof - No finding
with regard to possession after the hiba
recorded - No statement in the hibanama
with regard to transfer of possession in
favour of the donee - Rasheeda Khatoon's
principle applied - Since the transfer of
possession of the premises in question is
an essential ingredient of hiba, the first
appellate court has recorded that the
transfer of possession in lieu of hiba was
not proved - Held, judgment and order of
the first appellate court reversing the
findings of fact recorded by the trial court
is based on the material evidence on
record, no substantial question of law
pertaining to the same arises in the
second appeal. (Para 19, 21, 22, 24, 25
and 29)
B. Second Appeal - Specific Relief Act,
1963
-
Section
34
-
Civil
Suit
-
Maintainability - Sale deed executed -
Omission to challenge it - Effect - First
appellate court has held that since the
additional prayer required to be taken
seeking
cancellation
of
sale
deed
favouring the defendants has not been
taken, the suit would therefore be barred
in terms of proviso to Section 34 of the Act
-
Held,
the
question
regarding
maintainability of the suit in terms of
Section 34 of the SR Act has to be seen
with regard to pleadings made in the
plaint and would therefore be a question
of law which can be taken at any stage.
(Para 18 and 26)
Appeal dismissed. (E-1)
Cases relied on :-
1. Uma Pandey & anr. Vs Munna Pandey & ors.
reported in (2018) 5 SCC 376
2. Rasheeda Khatoon Vs Ashiq Ali reported in
(2014) 10 SCC 459
3. Firm Baldeo Prasad-Balgovind Vs Shubratan &
ors. reported in (1936) AWR 506
4. Kshitish Chandra Purkait Vs Santosh Kumar
Purkait & ors. reported in (1997) 5 SCC 438

(Delivered by Hon'ble Manish Mathur, J.)

1. The substitution of sole appellant
as
allowed
earlier
is
permitted
to
incorporate during the course of the day.

2. Heard Mr. Aftab Ahmad learned
counsel for plaintiff-appellant and Mr.
Subhash Vidyarthi learned counsel for
defendant respondent.

3. Second appeal under Section 100
of the Code of Civil Procedure 1908 has
been filed against judgment and decree
dated 16th February, 2015 relating to suit
No. 32 of 1982, Mohd. Farooq Siddiqui
versus Smt. Saeeda Bano.

4. A preliminary objection regarding
maintainability of the second appeal has
2 INDIAN LAW REPORTS ALLAHABAD SERIES
been raised by learned counsel for
respondent
on
the
ground
that
no
substantial question of law is involved in
the present second appeal. The said
question therefore is also being adjudicated
upon.

5. The plaintiff-appellant had filed a
suit for declaration with regard to the suit
premises which was decreed by means of
the judgment and decree dated 31st March,
2003 but the first appeal was allowed by
means of the judgment and decree dated
16th February, 2015 leading to the filing of
the present second appeal.

6. Learned counsel for appellant has
submitted that the suit premises had earlier
belonged to Smt. Abida Bano who was the
owner in possession of the house bearing
Municipal No. 337/1991 having purchased
the same by means of a registered sale deed
from one Altaf Husain. It is submitted that
the plaintiff-appellant entered into the suit
premises as a tenant of Smt. Abida bano
who was widow but issueless. Learned
counsel submits that due to the care being
taken by the plaintiff- appellant, Smt. Abida
Bano being pleased with his services gifted
the suit premises to the plaintiff-appellant
by means of an oral gift deed i.e. a hiba. It
is submitted that merely to recognize the
oral gift deed, a written deed of hibanama
was also executed on 10th April, 1972
while delivering formal possession of the
suit premises on the same date. It is
submitted that subsequently the defendantrespondent filed SCC suit No. 715 of 1980
claiming herself to be the owner of the
entire suit premises due to which the
plaintiff-appellant was compelled to file the
present suit No.32 of 1982 seeking the
relief of declaration. It is submitted that
since the plaintiff-appellant was already in
possession over the suit premises, no
further relief of possession was sought nor
was required to be taken in the plaint.

7. Learned counsel submits that the
trial court framed four issues with the first
issue pertaining to the ownership and
possession of the plaintiff and issue No.3
being framed with regard to the ownership
of the suit premises by the defendant. He
has submitted that after examination of
evidence, the suit has been decreed in
favour of the plaintiff-appellant by means
of the judgment and decree dated 31st
Mach, 2003 which was appealed against by
the defendant-respondent.

8. Learned counsel for appellant has
further indicated that the first appellate
court
had
framed
three
points
of
determination with the first point adverting
to the question regarding validity of the
oral hiba and the ownership of the plaintiff
on that basis. The second issue framed by
the first appellate court was with regard to
the suit being barred in terms of the proviso
to Section 34 of the Specific Relief Act,
1963.

9. Learned counsel for the plaintiffappellant has submitted that the first
appellate court has erred substantially in
law in reversing the judgment and decree of
the trial court primarily on the ground that
the reversal has been done with regard to
findings of fact recorded by trial court
without scrutinizing the said findings and
pointing out any errors therein. It is also
submitted that finding recorded by the first
appellate court regarding invalidity of the
hibanama is also against the oral evidence
on record. It has also been submitted that
the first appellate court has misinterpreted
the proviso to Section 34 of the Specific
Relief Act in holding against the plaintiffappellant and has also erred substantially in
8 All. Mohd. Farooq Siddiqui Vs. Smt. Saeeda Bano
3
law with regard to the finding pertaining to
ownership of the defendant-appellant in
view of the fact that the sale deed alleged to
have been executed in favour of the
defendant-appellant was never proved
during trial.

10. Learned counsel for the appellant
has relied upon the judgment in the case of
Uma Pandey and another versus Munna
Pandey and others reported in (2018) 5
SCC 376 to submit that the question
pertaining
to
interpretation
of
any
document
including
its
contents
or
admissibility in evidence or its effect on the
rights of the parties to the lis constitutes a
substantial question of law and that the
question since arising in the present appeal,
deserves to be admitted on the said
substantial question of law.

11.

Learned
counsel
for
the
respondents however has refuted the
submissions advanced by learned counsel
for plaintiff-appellant with the submission
that judgment and order of the first
appellate court is based on cogent findings
appreciating evidence recorded by the trial
court and as such the present second appeal
does not involve any substantial question of
law requiring it to be admitted on the said
question. It is submitted by learned counsel
for defendant-appellant that in terms of
Section 100 of the Code of Civil Procedure,
it is incumbent that the second appeal
should deserve admission on a substantial
question of law and since no substantial
question of law arises for determination in
the present second appeal the same is
required to be dismissed at admission stage
itself.

12.

Learned
counsel
for
the
respondent has also submitted that with
regard to issue No.1 framed by the trial
court
pertaining
to
ownership
and
possession of the plaintiff-appellant, the
trial court has clearly erred on that issue
since even from a perusal of judgment and
decree of the trial court, it is apparent that
the
conditions
required
to
prove
a
hibanama were not satisfied even if the
evidence considered by the trial court is
taken into account. It is submitted that the
first appellate court has reversed the said
finding of fact taking into account the
statements of plaintiff witnesses themselves
to hold that three essential ingredients
required for proving a hibanama were not
satisfied. It is submitted that the first
appellate court has reversed the finding of
trial court upon consideration of evidence
which was already on record.

13. Since a dispute has been raised
with regard to admissibility of the second
appeal in terms of Section 100 of the Code
of Civil Procedure, it would be appropriate
to deal with the said submission as a
preliminary issue.

14. Considering the material on
record and submissions advanced by
learned counsel for parties, it is undisputed
that the suit premises belonged to Smt.
Abida Bano as the owner in possession.
While
the
plaintiff-appellant
claims
ownership and possession over the suit
premises on the basis of the oral gift and
hibanama dated 10th April, 1972, the
defendant-respondent
has
claimed
ownership
and
possession
over
suit
premises on the basis of a registered sale
deed dated 16th July, 1980 executed by
successor of Smt. Abida Bano.

15. In judgment and decree of the trial
court, it has been indicated that as per
averments made in the plaint, it is the case
of the plaintiff-appellant that Smt. Abida
4 INDIAN LAW REPORTS ALLAHABAD SERIES
Bano had first donated the suit premises by
means of oral hiba in his favour on 10th
April, 1972 and merely to record the said
fact, a written hibanama was also executed
though not registered. The trial court as
indicated herein above had framed four
issues with the first issue pertaining to
ownership and possession of the plaintiff. It
is apparent from the judgment and decree
of the trial court that the aforesaid
hibanama was found to be valid on the
basis of conditions for execution of
hibanama being satisfied. The trial court
judgment
has
indicated
evidence
of
plaintiff's witnesses, Anwar Husain and
Mushir Ahmad to establish that the
hibanama in favour of plaintiff-appellant
stood proved in terms of Section 149 of
Muslim Law. At the same time, the trial
court has disbelieved the story of sale deed
said to have been executed in favour of
defendant-respondent. The trial court has
discarded the plea of defendant that
plaintiff-appellant was not in possession
over the property in question since no
mutation in his favour was effected in the
Palikia records. The said plea has been
discarded on the ground that mutation in
Palika records does not confer any
ownership on the person concerned and is
therefore an irrelevant factor. The trial
court has then gone ahead to indicate that
the hibanama which was on record as paper
No. Ga-10 is not a registered instrument
and therefore can not be seen in evidence
but at the same time can be looked into for
the purposes of proving an oral hiba. The
trial court has thereafter on that basis and
on the basis of evidence of P.W.-2 and 3
held the hibanama to be proved in favour of
the plaintiff-appellant.

16. The first appellate court as
indicated herein above had framed three
points for determination with the first point
pertaining to the ownership and possession
of the plaintiff-appellant on the basis of the
oral
hiba
and
second
point
for
determination being framed with regard to
suit being not maintainable in terms of
proviso to Section 34 of the Specific Relief
Act, 1963.

17. A perusal of the judgment and
order passed by the first appellate court
indicates that the entire hibanamama has
been reproduced in the body of the
judgment. Upon consideration of the
hibanama and evidence of plaintiff's
witnesses themselves the first appellate
court has recorded a conclusion that
hibanama was never proved by the
plaintiff's
witnesses
since
in
their
statements, the plaintiff's witnesses 2 and 3
have clearly indicated that Smt. Abida
Bano was a pardanashin lady whom they
did not recognize. The first appellate court
has also on the basis of the statements of
plaintiff's witnesses 2 and 3 reached a
conclusion that the said plaintiff witnesses
had merely sought to prove the hibanama
and no evidence whatsoever has been
produced to prove the oral hiba which is
said to have preceded the hibanama. The
first appellate court after adverting to
judgments passed by this Court regarding
conditions for proviing oral hiba by a
pardanashin lady has held that neither the
oral hiba nor the hibanama stood proved.

18. With regard to second point of
determination, the first appellate court has
clearly recorded a finding that the suit itself
was barred in terms of proviso to Section
34 of the Specific Relief Act, 1963. To
reach that conclusion, the first appellate
court has recorded a finding that even as
per submissions of the plaintiff, he was
aware with regard to the execution of a sale
deed in favour of the defendant but had
8 All. Mohd. Farooq Siddiqui Vs. Smt. Saeeda Bano
5
specifically omitted to challenge the said
sale deed. On that score, the first appellate
court has held that since the additional
prayer required to be taken seeking
cancellation of sale deed favouring the
defendants has not been taken, the suit
would therefore be barred in terms of
proviso to Section 34 of the Specific Relief
Act.

19. It is undisputed that even as per
pleadings of the plaintiff-appellant, the
alleged written hibanama was preceded by
oral hiba said to have been made by Smt.
Abida Bano in favour of the plaintiff.
Conditions
regarding
proving
of
a
hibanama have been laid down by Hon'ble
the Supreme Court in the case of Rasheeda
Khatoon versus Ashiq Ali reported in
(2014) 10 SCC 459 in which it has been
held that a gift under the muhammdan law
can either be oral or by means of written
instrument but for a gift to constitute a
valid gift under the muhammdan law, three
essential features are required namely (i)
declaration of the gift by donor (ii)
acceptance of the gift by donee expressly or
impliedly and (iii) delivery of possession
either actually or constructively to the
donee. It has further been held that only
because the writing is contemporaneous of
the making of gift deed it does not warrant
a registration under Section 17 of the
Registration Act. The relevant paragraphs
of the judgment are as follows:

"
16.
From
the
aforesaid
discussion of the propositions of law it is
discernible
that
a
gift
under
the
Muhammadan Law can be an oral gift and
need not be registered; that a written
instrument
does
not,
under
all
circumstances require registration; that to
be a valid gift under the Muhammadan Law
three
essential
features
namely,
(i)
declaration of the gift by the donor, (ii)
acceptance of the gift by the donee
expressly or impliedly, and (iii) delivery of
possession either actually or constructively
to the donee, are to be satisfied; that solely
because the writing is contemporaneous of
the making of the gift deed, it does not
warrant registration under Section 17 of
the Registration Act.

17. At this juncture, it is pertinent
to refer to a three-Judge Bench decision in
Valia Peedikkandi Katheesa Umma and
others
v.
Pathakkalan
Naravanath
Kunhamu (deceased) and after him his
legal representatives and others, AIR 1964
SC 275 where the question arose whether a
gift by a husband to his minor wife and
accepted on her behalf by her mother is
valid. Dealing with the concept of gift
under
Muhammadan Law
the
Court
observed that:-

"... Muhammadan Law of gifts
attaches great importance to possession or
seisin of the property gifted (Kabz-ulKami) especially of immovable property.
The Hedaya says that seisin in the case of
gifts is expressly ordained and Baillie (Dig
P.508) quoting from the Inayah refers to a
Hadis of the Prophet-"a gift is not valid
unless possessed." In the Hedaya it is
stated ? "Gifts are rendered valid by
tender, acceptance and seisin" (p.482) and
in the Vikayah "gifts are perfected by
complete seisin" Macnaghten (202)."

After
so
stating
the
Court
proceeded to lay down that it is only actual
or constructive possession that completes
the gift and registration does not cure the
defect nor is a bare declaration in the deed
that possession was given to a minor of any
avail without the intervention of the
guardian of the property unless the minor
has reached the years of discretion. It has
been further opined therein that if the
property is with the donor he must divest
6 INDIAN LAW REPORTS ALLAHABAD SERIES
from it and the donee must enter upon
possession. However, to that rule there are
certain exceptions which the Court took
note of, stating thus:-

"Exceptions to these strict rules
which are well recognized are gifts by the
wife to the husband and by the father to his
minor
child
(Macnaghten,
page
51
principles 8 to 9). Later it was held that
where the donor and donee reside together
an overt act only is necessary and this rule
applies between husband and wife. In
Mahomed Sadiq Ali Khan v. Fakhr Jahan
Begum, 59 Ind App 2 : (AIR 1932 PC 13) it
was held that even mutation of names is not
necessary if the deed declares that
possession is delivered and the deed is
handed to the wife." We have referred to
this decision only to highlight the principle
that either there has to be actual delivery of
possession from the donor or the donee
must be in constructive possession to make
a gift valid under the Muhammadan Law.

22. We have already stated,
actual physical possession may not be
always necessary if there is constructive
possession of the donee. In this context we
may reproduce Section 152, sub-Section(3)
of Mulla's Muhammadan Law:-

"No physical departure or formal
entry is necessary in the case of a gift of
immovable property in which the donor and
the donee are both residing at the time of
the gift. In such a case the gift may be
completed by some overt act by the donor
indicating a clear intention on his part to
transfer possession and to divert himself
of all control over the subject of the gift."
"

20. Upon applicability of the
aforesaid judgment, it is to be seen that
learned counsel for the plaintiff-appellant
has asserted that since the plaintiff was
continuing in possession since prior to the
hibanama as a tenant in the suit premises,
he continued to be in possession as such
which can be said to be a constructive
possession over the suit premises. As such
it is submitted that nothing further was
required to be done by the plaintiffappellant since he continued to be in
constructive possession over the suit
premises.

21. Upon applicability of the
aforesaid judgment in the case of Rasheeda
Khatoon (supra) to the facts of the present
appeal, the first appellate court has noticed
that the plaintiff-appellant was continuing
in possession over suit premises since prior
to the hibanama. However it is a material
fact that the said possession of the plaintiffappellant was as a tenant over the suit
premises and not in the capacity of owner.
In the case of Rasheeda Khatoon (supra),
Hon'ble the Supreme Court has held that
possession can be shown not only by
exclusive enjoyment of the land or
premises in question but also by asserting
who has actual control over the property. It
was held that some one may be in apparent
occupation of the premises but the other
would have control and actual possession.

22. With regard to applicability of the
aforesaid law, it is seen from judgment of
trial court that no such finding with regard
to possession of the plaintiff has been
recorded after the hiba. The trial court after
noticing that the plaintiff's witnesses
proved
the
hibanama
has
assumed
possession of the plaintiff over suit
premises. However the first appellate court
after
reproducing
the
hibanama
has
recorded a specific finding that the
plaintiff's
witnesses
had
not
proved
possession of plaintiff over the suit
premises. It has also been recorded by the
first appellate court that although even as
8 All. Mohd. Farooq Siddiqui Vs. Smt. Saeeda Bano
7
per pleadings of the plaintiff that the
hibanama was preceded by oral hiba, the
oral hiba has not been proved by any
witness. It is specifically recorded that the
plaintiff's witnesses had merely proved the
written hibanama but since the case of
plaintiff is based on the oral hiba, the same
was required to be proved in accordance
with the judgments on that score. The first
appellate court has thereafter disbelieved
plaintiff's submissions on that very score.
The aspect with regard to proving of
habanama has also been disbelieved by the
first appellate court after adverting to the
statements of plaintiff's witnesses which
clearly established that plaintiff's witnesses
who were also witnesses to the alleged
hibanama never recognized Smt. Abida
Bano who was a pardanashin lady and as
such has held that there is no evidence with
regard to proof of oral hiba since the
alleged
witness
to
hibbanama
have
specifically stated that they did not
recognize the donor i.e. Smt. Abida Bano;
the written hibanama as such does not stand
proved.

23. Learned counsel for appellant has
relied upon the judgment rendered by this
Court in the case of Firm Baldeo PrasadBalgovind versus Shubratan and others
reported in (1936) AWR 506 to submit
that non mutation of the name of donee in
municipal records does not have any
bearing with regard to the plaintiff being in
possession and therefore the first appellate
court has clearly erred in placing too much
reliance on that aspect. However in
paragraph 3 of the aforesaid judgment, it is
apparent that what has been held is that
with regard to proof of hibanama, all that is
required is that the donor should clearly
divest himself of his ownership in the
subject matter of the gift and should deliver
such possession as the subject matter of gift
admits of. The relevant paragraph is quoted
as follows:-

"3. The rule of Muhammadan
Law as regards delivery of possession in
cases of gift is well settled. All that is
required is that the donor should clearly
divest himself of his ownership in the
subject-matter of the gift and should deliver
such possession as the subject-matter of the
gift admits of. Where a house is in actual
occupation of the donor and the donee, who
are related as father-in-law and daughter-inlaw, and the donor declares, in unequivocal
language, that he has divested himself of
ownership of half of it, retaining the other
half and authorised the donee to take
possession, the character of the donee's
possession, which already existed, is
altered, and for all formal purposes the gift
must be considered to have been perfected
by such delivery of possession as was
feasible
in
the
circumstances.
It
is
significant that in this case the donor did
not exercise any act of ownership after
executing the deed of gift. The donor, who
retained ownership of half the house,
remained in joint possession with the
donee. The latter was in possession
precisely in the same manner as the donor
in respect of her half of the house. The
mere fact that the donor did not have
mutation
of
names
effected
in
the
Municipal registers does not affect the case.
For these reasons, the view of the learned
Subordinate Judge is right. The appeal has
no force, and is dismissed with costs."

24. Upon applicability of the
aforesaid judgment, it is apparent as
indicated in the narration of first appellate
court that at the time of execution of
hibanama, it is specifically stated that the
donor was still continuing in possession
over the suit premises. There is no
8 INDIAN LAW REPORTS ALLAHABAD SERIES
statement in the hibanama with regard to
transfer of possession in favour of the
donee i.e. the plaintiff. Since the transfer of
possession of the premises in question is an
essential ingredient of hiba, the first
appellate court has recorded that the
transfer of possession in lieu of hiba was
not proved.

25. In the considered opinion of this
Court, no exception can be taken by the
said finding recorded by the first appellate
court particularly since the trial court has
not adverted to that issue at all. It is thus
clear that the judgment rendered by the first
appellate court with regard to issue No.1 is
on the basis of pleadings and evidence on
record and findings of the trial court have
been reversed after scrutinizing the said
findings and pointing out errors. In view of
aforesaid, with regard to finding recorded
regarding hiba, no exception can be taken
to the finding of the first appellate court
and no
substantial
question
of
law
pertaining to the same arises in the second
appeal.

26. With regard to the second point of
determination by first appellate court
pertaining to the suit being barred in terms
of proviso to Section 34 of the Specific
Relief Act, 1963, it is apparent that
although the learned counsel for appellant
has taken a plea that such an issue could
not have been framed at the stage of first
appeal without such ground having been
taken before the trial court, but it is seen
that no such ground has been taken in the
memorandum of appeal before this court
nor any such substantial question of law
has been proposed. Even otherwise, the
question regarding maintainability of the
suit in terms of Section 34 of the Specific
Relief Act has to be seen with regard to
pleadings made in the plaint and would
therefore be a question of law which is
already settled can be taken at any stage.

27. With regard to the aforesaid
finding, it is seen from the judgment of first
appellate court that the plaintiff from the
very outset was aware with regard to the
registered sale deed having been executed
in favour of the defendant on which basis
she was claiming. The first appellate court
has recorded a finding to that effect that
even in the plaint, the plaintiff has clearly
indicated that the present suit was filed
after filing of a suit for ejectment by the
defendants which was registered as SCC
Suit No. 715 of 1980 which was on the
basis of the registered sale deed. As such no
exception can be found to the finding
recorded by the first appellate court
regarding the said issue since admittedly no
prayer has been sought by the plaintiff
regarding cancellation of registered sale
deed favouring the defendant-respondent.

28. The admissibility of second
appeal in terms of Section 100 of the Code
of Civil Procedure is to be on the basis of a
substantial question of law being involved
as distinct from a mere question of law. As
such the involvement of a substantial
question of law for a second appeal to be
entertained is a sine qua non. The same has
been held by Hon'ble Supreme Court in the
case of Kshitish Chandra Purkait versus
Santosh Kumar Purkait and others
reported in (1997) 5 SCC 438. The
relevant paragraph is quoted as follows:-

" 12. In the light of the legal
position stated above, we are of the view
that the High Court acted illegally and in
excess of its jurisdiction in entertaining the
new plea, as it did, and consequently in
allowing
the
second
appeal.
Even
according to the High Court, the point
8 All. Liaqat Hussain Vs. Smt. Jainab Parveen
9
urged on behalf of the appellant was only a
"legal plea" though no specific plea was
taken or no precise issues were framed in
that behalf. The High Court failed to bear
in mind that it is not every question of law
that could be permitted to be raised in
second appeal. The parameters within
which a new legal plea could be permitted
to be raised, are specifically stated in subsection (5) of Section 100 CPC. Under the
proviso, the Court should be "satisfied"
that the case involves a "substantial
question of law" and not a mere "question
of law". The reason for permitting the
substantial question of law to be raised,
should be "recorded" by the Court. It is
implicit therefrom, that on compliance of
the above, the opposite party should be
afforded a fair or proper opportunity to
meet the same."

29. Upon consideration of the
aforesaid factors, it is apparent that the
judgment and order of the first appellate
court reversing the findings of fact
recorded by the trial court is based on the
material evidence on record and after
discussing the findings recorded by the trial
court. As such in the considered opinion of
this Court, there is no substantial question
of law involved which may require
admission of the second appeal.

30. Consequently the second appeal
being devoid of merits is dismissed
upholding the judgment & decree dated
16th February, 2015 passed in First Appeal
No. 136 of 2003. Parties shall bear their
own costs.
----------
(2021)08ILR A9
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

First Appeal No. 119 of 2021

Liaqat Hussain ...Appellant
Versus
Smt. Jainab Parveen ...Respondent

Counsel for the Appellant:
Sri Arun K. Singh Deshwal, Sri Anil Kumar
Dubey

Counsel for the Respondent:

A. Civil Law - Code of Civil Procedure,
1908 - Order XII Rule 6 - Family dispute
- Restitution of Conjugal Right - Wife's
admission of her willingness to cohabit
with
plaintiff-husband
-
Effect
of
admission - Held, finding of trial court is
perverse and against the evidence on
record - Suit should have been decreed on
the basis of admission of the defendantrespondent. (Para 10 and 12)
Appeal allowed. (E-1)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Subhash
Chand, J.)

1. Heard Sri Arun K. Singh Deshwal,
learned counsel for appellant.

2. Despite service of notice on
respondent no.2 none has put in appearance
on her behalf.

3. On the basis of submissions of
learned counsel for appellant and the
admission of defendant-respondent in her
written statement filed before the court
below, we proceed to decide this appeal at
the admission stage even in absence of
counsel for respondent.