Summary
The Court set aside dismissal of the second appeal and remitted it to the High Court for a finding on the substantial question it had framed after a court-directed survey. The High Court had endorsed the earlier findings without resolving the fresh evidence of a mismatch between defendants’ occupied area and their sale deeds. The purchaser’s prior knowledge of occupation also required assessment against that evidence. No final determination of title or encroachment was made; disposal was requested expeditiously, preferably within six months of receipt.
Issues
- Whether the High Court could dismiss the second appeal without deciding the substantial question framed in light of the court-appointed surveyor’s evidence.
Held
- Although concurrent findings are not routinely disturbed, the court-directed survey and later appellate findings generated a further substantial question of law. The High Court did not independently decide that question and instead relied on absence of encroachment after the plaintiff’s purchase. That omitted a matter going to the root of the dispute. (¶¶ 5, 6, 10, 11)
- The apparent discrepancy between the defendants’ occupied area and the areas in their sale deeds required consideration. The recital acknowledging their occupation in the plaintiff’s sale deed also had to be weighed in light of the new survey evidence; the Court did not finally decide the competing property claims. (¶¶ 8, 9, 10, 11, 12)
- The High Court judgment was set aside and the second appeal remanded for a finding on the substantial question framed on 2 May 2018. Given the long pendency and restricted remand, expeditious disposal was requested, preferably within six months of receipt of the order. The appeal was allowed without costs. (¶¶ 12, 13)
Result
Appeal allowed without costs; second appeal remanded to the High Court to decide the specified substantial question, preferably within six months of receipt. No final title or encroachment determination.