IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1164 OF 2009 (Arising out of S.L.P. (C) No.24797 of 2007)

Parul Bala Ghosh and Ors.     ...Appellant(s)

Versus

Bishnu Pada Ghosh and Ors.     ...Respondent(s)

O  R  D  E  R

Leave granted.

Heard learned counsel for the parties.

The suit for declaration of title and permanent injunction filed by Narayan

Chandra Ghosh (predecessor-in-interest of the appellants herein) was decreed by the

trial court on 7th July, 1989.  The appeal preferred against the judgment of the trial

court was dismissed by Assistant District Judge, Kalna, District Burdwan  vide his

judgment and decree dated 30th April, 1991.  However, when the matter was taken to

the High Court in second appeal, the decree of injunction was set aside.

A reading of the impugned order shows that the High Court proceeded to

decide the appeal on the premise that in terms of  the order passed at the time of

admission of the appeal, the grounds contained in the memorandum of appeal could

be treated as substantial questions of law.  We have carefully gone  through the memo

of appeal and find that the

....2/-

- 2 -  

grounds taken therein do not specify the substantial questions of law.  On its part, the

High Court did not frame any substantial question of law as postulated under Section

100 of the Code of Civil Procedure.  This being the position, the impugned order is

liable to be set aside.

Accordingly,  the appeal is allowed,  impugned order is set aside and the

matter  is  remitted  to  the  High  Court  which  shall  first  consider  whether  any

substantial question of law arises in the second appeal or not.  In case, the High Court

is of the opinion that substantial question of law arises, it shall first frame the same

and thereafter proceed to dispose of the second appeal on merits.

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

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

New Delhi, February 23, 2009.