IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2 OF 2009 (Arising out of S.L.P. (C) No.14513 of 2006)

Kailash Nath Tripathi        ...Appellant(s)

Versus

Kedarnath Tewari & Ors.       ...Respondent(s)

O  R  D  E  R

Leave granted.

By the impugned order, the High Court dismissed the second appeal on the

ground that no substantial question of law is involved therein.  

Having heard learned counsel for the parties and perused the records, we

are of  the opinion that the High Court was not  justified in dismissing the second

appeal on the ground that no substantial question of law was involved therein.  In our

view, the following substantial questions of law do arise in the second appeal before

the High Court:

“[a] Whether the statement made by an advocate appearing on behalf  of the plaintiff  under Order X Rule 2 of the Code of Civil Procedure, 1908, could be treated to be an admission by the party?;

[b]  Whether the finding of fact recorded by the First Appellate Court to the effect that passage from `Gha' to `Cha' in the map prepared by the Amin could not be treated as a public road as the passage  ends  at  the  `Ghari'  [cattle  shed]  of  the  plaintiff  was vitiated in law?”

...2/-

- 2 -  

Accordingly, the appeal is allowed, impugned order rendered by the High

Court is set aside and the matter is remitted to it for fresh disposal of the second

appeal in accordance with law.  Upon remand, the High Court shall issue notice to

the respondents in the appeal and formulate aforesaid substantial questions of law.

It would be open to the High Court to formulate any other substantial question of law

which it deems fit and proper.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, January 05, 2009.