Gujarat High Court

Malavi Bhanvarlal Ganeshji vs Himmatnagar Nagarpalika Office on 6 February, 2024

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     C/SA/193/2012                                     JUDGMENT DATED: 06/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SECOND APPEAL NO. 193 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed                        Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                                 Yes

3    Whether their Lordships wish to see the fair copy                        No
     of the judgment ?

4    Whether this case involves a substantial question                        No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                MALAVI BHANVARLAL GANESHJI & 1 other(s)
                               Versus
             HIMMATNAGAR NAGARPALIKA OFFICE & 4 other(s)
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Appearance:
MRS NISHA M PARIKH(2397) for the Appellant(s) No. 1,2
MS ABHA B MAKWANA(3025) for the Appellant(s) No. 1,2
KUMAR H TRIVEDI(9364) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 06/02/2024
                                ORAL JUDGMENT

1. The present Second Appeal is filed by the

appellants - original applicants by challenging the

impugned judgment dated 30.07.2010 passed below

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Exh.139 in Regular Civil Suit No.20 of 2002 by the rd learned 3 Addl. Senior Civil Judge, Himmatnagar as

well as the judgment dated 15.09.2011 passed below

Exh.25 & 26 in Regular Civil Appeal No.28 of 2010 by

the learned Principal District Judge, Sabarkantha,

whereby the same were dismissed by both the courts

below.

2. The present Second Appeal was filed in the year

2012 and is currently pending for admission. No further

orders have been passed since 2012, which is a highly

concerning aspect of this matter. It clearly indicates the

need for improvement in the system of the Registry for

listing cases. Upon perusal the proceedings of this case, it is revealed that it was initially filed on 07.09.2012

and subsequently listed before the learned Court on

26.09.2012, which came to be dismissed for want of

prosecution. However, by order dated 7.11.2012 in Misc.

Civil Application No.3044 of 2012 for restoration, the

Court restored the matter by allowing that application.

Despite this, it appears that the matter was never

brought before the Court again until 07.01.2020, when it

was finally listed again. Throughout the year 2020, the

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matter was scheduled for several occasions, but

unfortunately, no progress was made. For reasons best

known to the Registry, the matter wen to cut off, until

it was eventually brought back before this Court.

Consequently, the matter is now being taken up for

consideration.

3. Heard Mrs. Nisha M. Parikh, learned advocate for

the appellants. No notice is yet issued in the present

matter.

4. Brief facts of the case are as such that there is a

land bearing Survey No.23 admeasuring 28066 sq.mtrs.

at village Motipura, Ta.Himmatnagar. That there are

number of plots carved from the Revenue Survey No.23.

The Applicant No.1 has purchased the Plot No.8 from

survey No.23 by way of registered sale deed

dtd.24/1/2000 and the said sale deed registered at serial

no.162 as the registered maintain by the Registrar.

Similarly, applicant No.2 has also purchased the land

admeasuring 102.90 sq.ft., which was the part of the

Plot No.8 by way of registered sale deed on dtd.

24/1/2000 and the said sale deed registered at serial

no.163 as registered maintain by the Registrar. On the

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basis of the sale deed, the applicants have given the

application to the Himmatnagar Nagarpalika to be muted

their name in the record of the Nagarpalika. On the

basis of their application, their name came to be muted

in entry no.1129 on 23/5/2002. The applicants have put a

cabins and he is doing business. The applicants have

started to construct the common wall in the plot of their

own ownership. The respondent no. 2 to 5 have raised

the objection on it and made the representation to the

respondent no.1 to remove the said wall and cabin. It is

further the case of the applicants in this application that

the said entry came to be disputed and RTS/Case No.2-

3/04 was filed before the Mamlatdar, Himmatnagar by

the Respondent No.2. The Mamlatdar, Himmatnagar has passed the order on dtd.16/12/2004 to cancelled the entry

no.1129.

It is further the case of the applicants in this

application that being aggrieved against the order

dtd.16/12/2004, the present applicants have filled the

RTS/Appeal/Das/SR45/2006 before Himmatnagar on

21.7.2006. After considering all the facts and

circumstances, the Deputy Collector, Himmatnagar has

passed the order on 21.8.2006 to allow the appeal of the

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applicants and confirmed the entry No.1129. The Deputy

Collector, Himmatnagar has also stated that order passed

by the Hon'ble High Court in SCA No.11646/2006 and

11647/2006 is bound to both the parties. The applicants

have approached before this Court by way of SCA

No.11646/2006 and SCA No.11647/2006 against the

removal of the cabins of the applicants by the

Nagarpalika. This Court has passed the order on

dtd.17/1/2007, withdraw with liberty to file writ petition

before the learned Single Judge. Ss per the direction of

this Court, the applicants have filed the SCA

No.19681/2007 and 19682/2007 before the learned Single

Judge of this Court. In the said application, the learned

Signle Judge has passed the order dtd.18/9/2007, granted the permission to withdraw this petition with liberty to

approach before the appropriate forum.

It is further the case of the applicants in this

application that the applicants have also filed the RCS

No.20/2002 before the Civil Judge, Himmatnagar. The

Civil Court, Himmatnagar has dismissed the applicant's

suit on 30/7/2010 by considering the facts that the

applicants are not the owner of the suit property and

not able to prove possession over the suit property.

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Being aggrieved by the order dtd.21/8/2006 passed by the

Deputy Collector, Himmatnagar, the Respondent Nos.3

and 4 are approached the Collector, Sabarkantha by way

of RTS/Revision/Case No.5/2007. The Collector,

Sabarkantha has without considering the facts and

grounds of the applicants, allowed the said application on

dtd.20/12/2010 by stating that civil suit field by the

applicant was not allowed which is illegal and against

the provisions of law. Against the said order the

applicants have field the regular civil apple no.28/10

before the district court, which was rejected by the

learned Principal District Judge, Sabarkantha

Himmatnagar dtd 15-09-2011. Therefore, being aggrieved

by and dissatisfied with the impugned judgment and decree dtd.15.09.2011 below Ex. 25 passed by the Ld.

Principal District Judge, Sabarkantha at Himmatnagar in

Regular Civil Appeal No.28/2010, the present appeal is

preferred.

5. Learned advocate for the appellants has submitted

that the courts below have wrongly considered the fact

that the appellants are not the owners of the suit

property and failed to prove the possession over the suit

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property. Furthermore, she has submitted that the

learned Judge has not exercised their jurisdiction in

appropriate manner, which is vested in them by the

provisions of law. Furthermore, she has submitted that

appellant is a owner of the o-1 Guntha Land, in Block

No.111 situate at village Satem, Ta. Navsari, Dist.

Valsad, while she has an adverse possession over the

remaining land of the said block from the decade.

Furthermore, she has submitted that the land bearing

block No.110 belonging to Nathubhai is situated at

Northern side of Block No.111 and land bearing survey

No.112 belonging to Jivanbhai is situated on South-West

side of Block No.111. The public way is available on

Eastern side of block No.111. Furthermore, she has submitted that there is a depute regarding removal of

the obstruction on the public way. Furthermore, she has

submitted that the impugned order is against the settled

position of law and contrary to the facts and

circumstances as well as evidence on record.

Furthermore, she has submitted that the appellants

cannot be considered as a trace passer as she is having

the adverse possession from 50-60 years, and not making

any obstruction in the public way. Therefore, looking to

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over all circumstances, the appellants pray is entitled to

get the relief as prayed in the suit. Therefore, she has

prayed that in view of the substantial question of law,

which is framed in paragraph 5 of the appeal memo, the

present Second Appeal is required to be allowed.

6.1 I have considered the rival submissions made at the

bar by the respective parties. The substantial question of

law as framed in paragraph 5 are as under:

 (a) Whether the appellant is the legal owner of the

suit property and actual the possession of the suit

property?

 (b) Whether the appellant proves that the suit is

barred by miss-joinder and non-joinder of parties?

 (c) Whether the appellant proves that the suit is

barred for not giving statutory notice?

6.2 In view of the submissions made at the bar that

the appellants have tried to urged the point regarding

miss-joinder and non-joinder of the parties, whether the

suit is barred or not, giving the statutory notice as well

as also regarding the actual ownership of the property in

question. For considering these aspects, I have perused

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the impugned judgment, which is rendered by the

learned Addl. Senior Civil Judge, Himmatnagar. The

learned Addl. Senior Civil Judge, Himmatnagar has

considered the documentary evidences as well as oral

evidences in paragraph 19 to 21 in its judgment, as

under:

(19) The plaintiffs have adduced the following oral and documentary evidences to prove the facts stated in the plaint.

Sr.No. Subject Exhibit

Affidavit on oath of Bhavarlal Ganeshji Exh. 38

Affidavit on oath of Soni Hasmikhbhai Chimanbhai

Certified copy of order passed in RTS 45/06

True copy of sale deed dated 04/0/87

True copy of sale deed No. 1018 dated 04/06/87

True copy of registered sale deed No. 162 dated 24/01/1960

True copy of sale deed executed on 24/01/1960

"Akani Patra" (2001 to 2003)

True copy of "Akarni Patra" (2003-2004)

Closing purses

(20) The defendant no. 1 has produced the following oral and documentary

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evidences to rebut the case of plaintiffs.

Sr.No. Subject Exhibit

Affidavit on oath by Sanjaykumar Manubhai Pandya

Certified copy of N. A. order dated 15 /09/1978

True copy of NA plan

Village form 7/12 of plot no. 7

Village form 7/12 of plot no. 8

Village form no. 6 showing entry nos. 334, 554, 456 and 506

N. A. order dated 08-/09/1994

Village form no.6 showing entry nos. 1019 and 1020

Village form no.6 showing entry nos. 1024 and 1025

Resolution No. 19(1) dated 13/6/2000

Resolution passed by Ayojan Samiti bearing no. 19(1) and 30

Letter of intimation sent to plaintiffs dated 29/06/2000

Office copy of intimation sent to plaintiffs dated 30/8/2000

Resolution No. 643 dated 02/07/2001 passed by Managing committee of N. P.

Intimation letter dated 30/7/20001

Akarani Patrak for the year 1999-2000 and 2000-

2004 of property bearing no. 12/1326

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Office copy of notice given to plaintiffs

Order passed by by Hon'ble High Court in Special Civil Application Nos. 11646/07 and 11647/07

(21) The defendant nos 2 to 5 have produced the following oral and documentary evidences.

Sr.No. Subject Exhibit

Affidavit on oath of Patel Vijubhai Khimjibhai

Affidavit on oath Patel Natubhai Kanjibhai

Amended document dated 30/03/2000

4. 105 & 115 Closing purses

6.3 Thereafter, the trial court has farmed the issues

and decided the same as mentioned in paragraph 22 &

23 of the memo of the appeal, as under:

(22) My Learned Predecessor Judge has framed following issues vide Exh. 31 which are re-produced herein below.

ISSUES

1. Whether the plaintiffs prove that they have legally owner of the suit property?

2. Whether plaintiffs prove that they have actually possession of the suit property?

3. Whether the defendants prove that suit is barred by mis-joinder and non-

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joinder of parties?

4. Whether the defendant no.1 prove that suit is barred for not giving statutory notice?

5. Whether the defendants prove that plaintiffs have no right to file such suit?

6. Whether plaintiffs entitle to get the relief as prayed?

7. What order and decree ?

(23) My replies to the above issues are as under: -

(1) In negative

(2) In negative

(3) In affirmative

(4) In affirmative

(5) In affirmative

(6) In negative

(7) As per final order

6.4 In light of this background, it is imperative to

consider the findings given by the trial court when

deciding such issues. The appellants' contention, as the

original applicants, is that the suit primarily seeks

declaration and injunction as prayed. It is crucial to

examine the defendants' case in response, as presented

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through their written statements. Defendant No.1 has

submitted a comprehensive written statement at Exh.22,

contending that the plaintiffs lack the legal standing to

bring the suit. They have further contested the

ownership claimed by the plaintiffs and have disputed

the boundaries delineated in the plaint. It is also

contended that initially the name of the plaintiffs were

entered into the record maintained by defendant no.1

and that names of plaintiffs, entered in record, was

maintained by them on the basis of Pencil entry made

by village accountant, but subsequent to entering the

names of plaintiffs on the basis of Pencil entry,

defendant no.1 asked for certified entry from village

accountant by way of written communication and Talati

has intimated the defendant no.1 that entry Nos.1024

and 1025 were cancelled as plaintiffs have produced

amendment sale deed, whereby, they have purchased plot

No.16/A instead of plot No.8. Upon defendant No.1

receiving the letter from Talati stating out the above

mentioned facts. The defendant no.1 by way of general

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Resolution No. 643 dated 02/07/2001 cancelled the entry

by which the names of plaintiffs were mutated in the

record maintained by defendant no.1. It is also contended

in the written statement that plaintiffs herein had

sought permission of Nagarpalika to carry out the

construction, but permission was never granted as a road

was existing on the site, and without obtaining

permission, the plaintiffs had carried out some

construction which was removed. It is contended that the

permission sought by plaintiffs herein pursuant to the

said premises, was refused by Resolution No. 19(1) dated

13.06.2000, and the fact regarding refusal of construction

permission was also communicated by letter bearing

outward No.1025. It is further contended that the

plaintiffs herein have no title over the land on which

the road passes, but with a view to create title,

plaintiffs have filed the Suit by suppressing material

facts. It also transpires that considering these last

aspects, the suit of the plaintiff and averments made in

the pliant as well as written statement made by the

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defendant, the trial court has decided the issues and has

rightly come to the conclusion by appropriating oral as

well as documentary evidence. The trial court has after

considering the deposition as well as cross-examination of

the various witnesses, like Hasmukhlal Chimanlal Soni

and plaintiff himself had come to the conclusion that

the sellers in sale deeds which are on record vide Exh.

52 & 53 did not have any right or title to alienate the

property which was subject matter of sale deeds on

record vide Exh. 54 and 55 and, therefore, the Court has

found that since Soni Hasmukhlal Chimanlal had no title

or right to convey the property, which was subject

matter of sale deeds vide Exh. 54 and 55, no title was

conveyed to plaintiff Nos.1 & 2 by way of registered sale

deed and, therefore, plaintiff has not been able to prove

his legal ownership over the suit property. The trial

court has also found the proceeding of RTS Appeal No.45

of 2006, which indicates the plaintiff's possession over

the suit property. But the plaintiff has admitted in his

cross examination that the cabin installed on suit land

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has been removed. Considering the same admission on

behalf of the plaintiff, though it transpires that plaintiff

was in possession of the suit land once upon a time, but

subsequently, he was removed from the possession of the

suit property and now he is not in possession of the suit

property, as there is existing road on the suit land and

the cabin has also been removed.

6.5 Therefore, the trial court has also found that the

suit, which is filed by the plaintiff, is raised for non-

issuance of statutory notice to Nagarpalika. The trial

court has also found that the plaintiffs have miserably

failed in establishing ownership on the suit property. It

is settled law that one does not convey a better title

then what he has and when one has no title, none is

conveyed. It is observed that the plaintiffs have made a

feeble attempt to establish the legality of their ownership

by examining Hasmukhbhai Chimanbhai. This witness

has admitted in his cross-examination that sale deeds

which are on record vide Exh. 53 and 52 by which he

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had purchased suit property which wan executed in the

year 1987 and he had also admitted that sale deed on

record vide Exh. 52 shows the name of Aminabibi as

seller and sale deed vide Exh. 53 shows the name of

Chhaganlal Bechardas Darji as seller. Thus, the person

from whom he had purchased suit property did not have

title over suit property and could not have sold the suit

property and, therefore, the trial court has dismissed the

suit. It also transpires that the appellate court has also

considered the relevant aspects of the matter and has

framed the four points for determination in paragraph

12, and findings are also indicated in paragraph 13,

which are as under:

12. Heard learned Advocate Ms. K.R. Soni for the He

8/22 respondent-defendant No.1 and Advocate Mr. R.C.

Joshi for respondent-defendant Nos.2 to 5. produced his

written argument, which is at Exh.24. The points raised

for consideration of this Court are as under:

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POINTS

 1. Whether the appellants prove that the Trial

Court has erred in plaintiffs have not deciding been that

successful the in proving that they are the legal owners

and in actual possession of the suit property?

 2. Whether the appellants prove that the Trial

Court has erred in deciding that the suit is barred by

mis-joinder and non-joinder of the parties?

 3. Whether the appellants prove that the Trial

Court has erred in deciding that the suit is barred for

not giving statutory notice and that the plaintiffs have

no right to file the suit.

 4. What order?

13. My findings on the above points are as under for

the reasons following thereafter:

FINDINGS

1. In negative.

2. In negative.

3. In negative.

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4. As per final order.

6.6.1 On perusal of the order of the lower appellate

court, it transpires that the lower Appellate Court has

once again perused the entire material available on

record and re-appreciated the evidence in detail as an

appellate court and has observed in paragraph 24, as

under:

24. The plaintiffs have produced the attested copy of the

order passed by the Deputy Collector, Himatnagar in

RTS Appeal No.45/2006 at Exh.59 to support their claim

of their possession on the suit land. The documentary

evidence along with the oral deposition of the witnesses

clearly show that the plaintiffs have no legal right, title,

interests on the suit property. It has been stated by the

Chief Officer plaintiff in his had examination-in-chief

asked for the that permission the of construction by

producing the correction deed No.162 stating plot No.8 to

be read as plot No.16-A and on local inspection, it was

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found that at the suit place Nagarpalika had already

made a metal road and the place for which the

permission was sought for was a part of the road.

Bence, the cabin and the shed made of metal was

removed on 12.06.2000.

It has been held by this Court in case of

Vitthalbhai Chhaganbhai (since deceased)

through his legal representative Navnitbhai Vs.

State of Gujarat and Ors. reported in 2008 (4)

GLR 3522, that Section 185, Sub Section 2 of

the Gujarat Municipalities Act 1963, empowers

the Chief Officer of the Municipality to remove

obstruction made on Municipal land, whether

the obstruction was made before or after the

application of the Act to the term in question.

The said road appears to have been used by the

public since long. The Nagarpalika had made metal road.

It appears to have been dedicated to the public. Hence,

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the contention of the advocate к.к. Patel that the.к.к. Patel that the. Patel that the

Nagarpalika has not followed the procedure laid down

under Section 69 of the Gujarat Municipalities Act, 1963

would not be tenable and as observed by the Hon'ble

High Court in Vitthalbhai Chhaganbhai's case (supra) the

Chief Officer, is empowered to remove the obstructions

made on the Municipal Land. Hence, in view of the

above discussion, point No.1 is answered in negative.

6.6.2 Thereafter, on point No.2 in its judgment, it is

observed in paragraph 25 by the trial court, as under:

25. The contention of the defendant Nos. 2 to 5 with

regard to nonjoinder of parties was with respect to not

joining one of the co-owners Moksingh Bhikusing

Parmar of the shop owned by defendant Nos. 2 to 5. It

appears from the dispute between the parties that

Moksingh Bhikusing Parmar is one of the proper

parties to be joined to the suit. The learned Advocate

had put some questions in cross examination with

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respect to the ownership of plot No.8, the original

owner Rasikbhai Ravjibhai Patel had sold the plot No.7

and 8 to Dilipkumar Nalinkant Gandhi, Jagdishchandra

Harishchandra Choksi, Shrichand Dwarkadas Talreja,

Ishwarlal Ganpatlal Patel and Dwarkesh Complex has

been constructed by them. They are the necessary and

proper parties to the suti. The plaintiff ought to have

joined them. The village form No.6 with Entry No.506

clearly shows them, as the owner of plot No.8, more so

it has come on record during the evidence of the Chief

Officer that they had made construction on the plot of

Dwarkesh Complex. They were the proper and necessary

party. They were required to be heard for the

adjudication of the reliefs claimed by the plaintiffs.

Hence, the Trial Court has rightly observed that the suit

of the plaintiffs is bad for mis-joinder and non-joinder of

the necessary parties. Hence, point No.2 is answered in

negative.

6.6.3 On point no.3, the trial court has observed in

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paragraph 26, as under:

26. Advocate Κ.Κ. Patel has contended statutory notice.Κ.Κ. Patel has contended statutory notice. Patel has contended statutory notice

was required to be that issued no to defendant No.1

prior to filing the suit against them, as the rights of the

plaintiffs were infringed by the defendant. The Trial

Court has observed that the plaintiff has admitted in the

cross examination that no statutory notice was issued by

them to the Municipality before instituting the suit.

Itappears from the evidence on record that the suit was

filed on 22.01.2002 and the cabin was removed by the

Chief Officer, on 12.06.2000, the fact regarding the date

of removal has not been challenged in the cross-

examination. The plaintiff had come with the cause of

action that the defendant Nos. 2 to 5 through defendant

No.1 were creating hindrance in their construction of the

compound wall. As per the evidence of the Chief Officer,

no permission was given to the plaintiffs for the

construction of the compound wall. In view of the fact,

the suit filed without issuing statutory notice to the

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Nagarpalika is bad in law. Thus, the Trial Court has

rightly observed that the suit is barred for not giving

statutory notice. The plaintiffs have failed to show their

legal right, title, interests on the suit property. They

have not bonafidely purchased the suit land. The claim

put forward is for the margin land of the plot belonging

to Dilipkumar Nalinkant Gandhi, Jagdishchandra

Harishchandra Choksi, Shrichand Dwarkadas Talreja,

Ishwarlal Ganpatlal Patel and therefore, the observation

of the Trial Court that the plaintiffs have no right to

file the suit is upheld. Hence, point No.3 is answered in

negative.

6.7 After considering the above findings, both the courts

below have given cogent and convincing reasons. While

exercising powers under Section 100 of the Civil

Procedure Code, the Court has to keep in mind the

certain aspect.

6.8 Section 100 of the Civil Procedure Code reads as

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under:

100. Second appeal.--(1) Save as otherwise expressly

provided in the body of this Code or by any other law

for the time being in force, an appeal shall lie to the

High Court from every decree passed in appeal by any

Court subordinate to the High Court, if the High Court

is satisfied that the case involves a substantial

question of law.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum

of appeal shall precisely state the substantial question

of law involved in the appeal.

(4) Where the High Court is satisfied that a

substantial question of law is involved in any case, it

shall formulate that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the hearing of

the appeal, be allowed to argue that the case does not

involve such question:

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the

Court to hear, for reasons to be recorded, the appeal

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on any other substantial question of law, not

formulated by it, if it is satisfied that the case involves

such question.

STATE AMENDMENT

Kerala.

In sub-section (1) of section 100 of the Principal Act,

after clause (c), the following clause shall be added,

namely:

(d) the finding of the lower appellate court on any

question of fact material to the right decision of the

case on the merits being in conflict with the finding of

the Court of first instance on such question.

6.9 It is relevant to refer some of the judgment of the

Hon'ble Apex Court, regarding exercising of powers under

Section 100 of the C.P.C., in the case of Narayana

Gramani and Others versus Mariammal and Others

reported in 2018 SCC OnLine SC 1427, the relevant

observations in para 17 reads as under:

"Subsection (1) of Section 100 says that

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the second appeal would be entertained by the High

Court only if the High Court is

"satisfied" that the case involves a "substantial

question of law". Sub section (3) makes it obligatory

upon the appellant to precisely state in memo of

appeal the "substantial question of law" involved

in the appeal. Subsection (4) provides that

where the High Court is satisfied that

any substantial question of law is involved in the case,

it shall formulate that question. In other words, once

the High Court is satisfied after hearing the appellant

or his counsel, as the case may be,

that the appeal involves a substantial

question of law, it has to formulate that

question and then direct issuance of notice

to the respondent of the memo of appeal along with

the question of law framed by the

High Court. Subsection (5) provides that the appeal

shall be heard only on the question

formulated by the High Court under sub-

section (4). In other words, the jurisdiction of the

High Court to decide the second appeal

is confined only to the question framed

by the High Court under subsection(4). The

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respondent, however, at the time of hearing

of the appeal is given a right under sub-

section (5) to raise an objection that

the question framed by the High Court under sub-

section (4) does not involve in the appeal. The reason

for giving this right to the respondent for raising such

objection at the time of hearing is

because the High Court frames the question

at the admission stage which is prior to issuance

of the notice of appeal to the respondent.


  In       other         words,          the        question             is       framed

  behind           the           back          of           respondent               and,

  therefore,        sub section(5) enables him                         to raise such

objection at the time of hearing that the question

framed does not arise in the appeal. The proviso to

subsection (5), however, also recognizes the power of

the High Court to hear the appeal on any other

substantial question of law which was not initially

framed by the High Court under sub section (4).

However, this power can be exercised by the High

Court only after assigning the reasons for

framing such additional question of law at the time of

hearing of the appeal. (See Sanatosh

Hazari vs. Purushottam Tiwari [(2001) 3 SCC

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179] and Surat Singh vs. Siri Bhagwan & Ors.

[(2018) 4 SCC 562"