Murtaza Jahan @
Mussarrat Jhan Begum Vs. Mohan Chandra Tamta & Ors.  INSC 1475 (1
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.
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 -1- 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 asto 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.
[ CYRIAC JOSEPH ]
Delhi, September 1, 2008.