IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL NO.5528  OF 2008 (Arising out of S.L.P. (C) No.14265/2007)

   Smt. Murtaza Jahan         ...Appellant             @ Mussarrat Jhan Begum

Versus

    Mohan Chandra Tamta & Ors. ...Respondents   

O  R  D  E  R

Leave granted.

One of the grounds raised in this appeal is that although the

name of the appellant is Mussarrat Jhan Begum  and she is a resident of District

Rampur; when Anwar Ali  expired during pendency of the Second Appeal he was

sought to be substituted by one lady named   Murtaza Jahan and her address was

shown as resident of District Almora. The appellant, therefore, was not heard by the

High Court. The fact that a wrong address was shown, however, is disputed.

The following substantial question of law was formulated by the

High Court:

" Whether the plaintiff's suit was barred by limitation or that it could be dismissed on the ground that he was not the owner of a 1/3rd share of the property or that the predecessor in interest of defendant-respondent No.3 was legally authorised to induct defendant-respondent No.1 as a tenant."

The High Court, however, by reason of the  impugned judgment

opined that as the mortgage was redeemed in the year 1954, the suit could be filed

within thirty years thereafter. The very fact that an alternative relief of redemption of

mortgage has been prayed for, it prima-facie  

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appears that there was no basis for arriving at the said finding. The High Court could

have gone into the matter at some details and considered the materials on record so as

to enable it to hold that the property was redeemed in the year 1954. It did not do so.

The  High  Court,  furthermore,  applied  Article  65  of  the

Limitation  Act,  1963,  inter  alia,  on  the  premise  that  the  plaintiff-respondent  was

dispossessed in February, 1964 whereas the suit was filed in the year 1969.  

We fail to understand as to how and on what basis the findings

of fact arrived at by the First Appellate Court were interfered with.

We are, therefore, of the opinion that the impugned judgment

should be set aside and the matter be remitted to the High Court for consideration of

the Second Appeal afresh. It would, however, be open to the High Court to formulate

such substantial  questions  of  law which  in its  opinion arise  for consideration and

proceed to hear out the  same in the presence of the appellant herein. The parties may

appear before the High Court on 20.10.2008.

A copy of this order may be sent to the Registrar, High Court of

Uttrakhand  so  that  the  Second  Appeal  bearing  No.  670/2001  be  listed  before  an

appropriate Bench on that date.

The  High  Court  is  requested  to  dispose  of  the  appeal  as

expeditiously as possible and preferably within a period of six months from the date

of communication of this order.

The appeal is allowed with the aforementioned observations.

......................J.       [S.B. SINHA]

     .....................J                                       [ CYRIAC JOSEPH ] New Delhi, September 1, 2008.

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