Kailash Nath Tripathi
Vs. Kedarnath Tewari & Ors.  INSC 3 (5 January 2009)
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.
O R D E R
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
"[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?"
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
It would be open to
the High Court to formulate any other substantial question of law which it
deems fit and proper.