Order
1. Leave granted.
2. Civil suit OS No. 176 of 1980, filed by Respondents 1 and 2 before the learned Munsif, Anekal for a declaration that the sale deeds executed by the parents, i.e, Defendants 8 and 9, in favour of the appellants are null and void and for delivery of vacant possession of the suit property, was decreed by the trial court on 18-6-1986. The appellant challenged the judgment and decree of the trial court through an appeal which was allowed by the first appellate court on 24-11-1990.
3. A regular second appeal filed by the respondents was allowed by the learned Single Judge of the High Court of Karnataka on 23-6-1998. Hence this appeal, by special leave.
4. The respondents have been served by substituted process, but despite service, are not present.
5. The grievance projected by Mr Mohta, learned Senior Counsel appearing for the appellants is that the learned Single Judge has totally ignored the provisions of Section 100 CPC and the judgments of this Court and dealt with the regular second appeal in a casual manner.
6. We find force in the submission of Mr Mohta.
7. From a perusal of the impugned judgment, we find that the learned Single Judge recorded in para 3 of the judgment:
“I do not want to go into the question as to whether during the lifetime of the mother, Gowramma is entitled to the share or not.”
But then, while allowing the appeal opined:
“However, taking equity into consideration, I am inclined to hold that Gowramma and Hanumaiah can sell only half share of the entire property to the defendants and the plaintiffs are entitled to the other half which is the share of Chikka Laxamma.”
8. This approach was totally fallacious. No jurisdiction under Section 100 CPC could have been exercised by the learned Single Judge without formulating a substantial question of law. The law laid down by this Court in Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and in Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 has been obviously overlooked. Under the circumstances, we do not find it possible to sustain the impugned judgment. This appeal, therefore, succeeds and is allowed. The impugned judgment is set aside. The case is remanded to the High Court for fresh disposal of the appeal in accordance with law. No costs.