CSA/287/2016 of MOHAMMADDEEN S/O IMAMUDDEEN Vs KHALEEL AHMED S/O MOHAMMAD YAKOOB on 20 December 2024

Order

1. Instant second appeal is preferred by appellants plaintiffsaggrieved from dismissal of civil regular appeal No.06/2016 on21.05.2016 by learned District Judge, Tonk affirming the judgmentand decree dated 11.12.2015 in civil suit No.69/2012 (120/2010)by learned Additional Senior Civil Judge, Tonk.

2. Learned counsel for appellants while relying upon grounds ofappeal submitted that both the courts below have committedserious error while not considering the material evidencesubmitted by the plaintiffs before the trial court. He furthersubmitted that on earlier occasion a civil appeal was allowed and contrary to findings recorded in previous appeal, the instant suitand appeal were dismissed. He also submitted that the plaintiffshave filed a suit for seeking injunction on land used as thoroughfare (common passage) by all the persons, residing in the vicinity.He also submitted that the defendants are trying to encroach uponland which was meant for use in common, between the parties. Healso referred the evidence of plaintiff and submitted that theyhave supported the case as mentioned in the plaint but the trialcourt and the appellate court have ignored the material evidenceproduced by the plaintiff. He further referred the admission of DW-1 in cross-examination and submitted that the courts below haveignored the admission of DW-1 about possession of previouslitigation about the same piece of land. He further referred thepara (i) of memo of appeal and submitted that he has suggestedseveral substantial question of law for consideration.

3. Heard learned counsel for the appellant and perused theentire record.

4. Appellants plaintiffs have filed a suit for permanentinjunction with contention that houses of plaintiffs were situated atMohalla Kali Pattan, wherein open land and public way is existingin the southern side of house of plaintiffs which has been shownwith red color in map annexed with the plaint. In plaint, furtherstated that defendants with malafide intentions are illegallyencroaching upon the said land which is marked as open land andpublic way. The plaintiffs claimed their easementry right and alsoright to enjoy property as being open land/public way and prayedfor injunction against the defendants so as to restrain them fromencroaching upon the land mentioned as red color in map annexed with plaint. The defendants (respondents) herein filed a writtenstatement denying the averments in the plaint and pleaded thatplaintiffs have wrongly mentioned boundary of houses and theirclaim is false. The defendants have claimed that the land situatedin front side of haveli of defendants and also on southern sidebelong to defendants. The contention of plaintiffs was denied bythe defendants in their written statement. On the basis ofpleadings of the parties, one issue was framed. Three witnesseswere examined by the plaintiffs whereas three witnesses wereexamined by the defendants. The issue NO.1 was decided againstthe plaintiffs and ultimately the suit of plaintiff was dismissed.Aggrieved from dismissal of civil suit, a civil regular appeal underSection 96 of CPC was filed before the District Judge, Tonk andsame was dismissed on 21.05.2016.

5. A perusal of evidence led by both the parties clearlyindicated that on earlier occasion civil suit No. 419/1984(190/1981) filed by Khaleel Ahmad and Jameel Ahmad againstImmamuddin and Mohamaddin for permanent injunction. Thejudgment and decree dated 24.11.1998 was exhibited as Ex.A-11.In this suit for permanent injunction defendants Immamuddin andMohamaddin were restrained by issuing permanent injunction. Acopy of plaint was exhibited as Ex.A-7. During cross-examinationDW-1 had admitted that an appeal was preferred againstjudgment as exhibited by him and in appeal before the DistrictJudge, the judgment of trial court was set aside and the land wastreated as common. One of the plaintiff was examined as PW-1and he has not exhibited any document in his support. SimilarlyPW-2 and PW-3 were also examined in support of plaintiffs but none of them have exhibited any document. Herein the judgmentof appellate court is not placed on record. If the plaintiffs have nottaken care to submit all documents relating to the land in questionthen they are responsible for same. The trial court and theappellate court have decided the issue No.1 on the basis ofmaterial on record. The rights as claimed by plaintiffs is a questionof fact and fact has to be pleaded and proved before the trialcourt. The first appellate court is final court to consider the factsbut herein the appellant has failed to show that the findings wererecorded against the material on record therefore there is noperversity or illegality in the findings recorded by the courtsbelow. The appellants have failed to show that the courts belowhave drawn conclusion contrary to material available on recordthus instant appeal does not give rise to any substantial questionof law.

6. Section 100 of CPC provides for second appeal, wherein theHigh Court is satisfied that the case involves a substantialquestion of law. Thus, the First Appellate Court is final court onfacts and in second appeal normally cannot re-appreciate theevidence or facts. A second appeal cannot be admitted unlesssubstantial question of law is framed for consideration.

7. Just to determine whether a question is substantial questionof law or not, was laid down by a Constitution Bench of Hon’bleSupreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs.Century Spg. and Mgf. Co. Ltd. 1962 AIR 1314, as under:

"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importanceor whether it directly and substantially affects thelaw raised in the case is substantial would, in ouropinion, be whether it is of general public importanceor whether it directly and substantially affects the rights of the parties and if so whether it is either anopen question in the sense that it is not finally settledby this Court or by the Privy Council or by the FederalCourt or is not free from difficulty or calls fordiscussion of alternative views. If the question issettled by the highest court or the general principles tobe applied in determining the question are well settledand there is a mere question of applying thoseprinciples or that the plea raised is palpably absurd thequestion would not be a substantial question of law."

8. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (CivilAppeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022decided on 21.09.2023) considered the scope of Section 100 of CPC

and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich andvaried. Time and again this Court in numerousjudgments has laid down, distilled and furtherclarified the requirements that must necessarily bemet in order for a Second Appeal as laid downtherein, to be maintainable, and thereafter beadjudicated upon. Considering the fact thatnumerous cases are filed before this Court whichhinge on the application of this provision, we find itnecessary to reiterate the principles.

13.1 The requirement, most fundamental under thissection is the presence and framing of a “substantialquestion of law”. In other words, the existence ofsuch a question is sine qua non for exercise of thisjurisdiction.

13.2 The jurisdiction under this section has beendescribed by this Court in Gurdev Kaur v. Kaki(2007) 1 SCC 546 (Two-Judge Bench) stating thatpost 1976 amendment, the scope of Section 100CPC stands drastically curtailed and narrowed downto be restrictive in nature. The High Court’sjurisdiction of interfering under Section 100 CPC isonly in a case where substantial questions of law areinvolved, also clearly formulated/set out in thememorandum of appeal. It has been observed that:“At the time of admission of the second appeal, it isthe bounden duty and obligation of the High Court toformulate substantial questions of law and then onlythe High Court is permitted to proceed with the caseto decide those questions of law. The language usedin the amended section specifically incorporates thewords as “substantial question of law” which isindicative of the legislative intention. It must beclearly understood that the legislative intention wasvery clear that legislature never wanted secondappeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendmentmainly, according to the amended section, was:(i) The High Court would be justified in admitting thesecond appeal only when a substantial question oflaw is involved;

(ii) The substantial question of law to precisely statesuch question;(iii) A duty has been cast on the High Court toformulate substantial question of law before hearingthe appeal;

(iv) Another part of the section is that the appealshall be heard only on that question.”Gurdev Kaur (supra) was referred to and reliedupon in Randhir Kaur v. Prithvi Pal Singh & Ors.(2019) 17 SCC 71

13.3 In Santosh Hazari v. Purushottam Tiwari(2001) 3 SCC 179 a Bench of three Judges, held asunder in regard to what constitutes a substantialquestion of law:-

a) Not previously settled by law of land or a bindingprecedent.

b) Material bearing on the decision of case; and (c)New point raised for the first time before the HighCourt is not a question involved in the case unless itgoes to the root of the matter. Therefore, it willdepend on facts of each case.

Such principles stand followed in Government ofKerala v. Joseph 2023 SCC Online SC 961 andChandrabhan v. Saraswati2022 SCC Online SC1273.

16.5 Interference on findings of fact permitted inexceptional cases, i.e., when finding is based oneither inadmissible or, no evidence. This Court inDinesh Kumar v. Yusuf Ali (2010) 12 SCC 740referring to various other cases held:- a) It is notpermissible for High Court to reappreciate evidenceas if it was the first appellate court unless findingswere perverse.

b) Finding of fact can be interfered in exceptionalcircumstances as rarity, rather than a regularity.

c) Scrutiny of evidence in second appeal is notprohibited but has to be exercised upon propercircumspection.

9. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

405, Hon’ble Supreme Court explained the purpose of framing

Issues

question of law in following manner:

“a) The purpose of framing of substantialquestion of law is to give the parties anopportunity to come prepared on thatparticular question.

b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter theyhave to be given an opportunity to advancedarguments thereon.

c) If any additional questions were framed atthe time of hearing, the Court must hear theparties on that question as well.”

10. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignoredmaterial evidence or acted on noevidence;(ii) the courts have drawn wronginferences from proved facts byapplying the law erroneously; or(iii) the courts have wrongly castthe burden of proof.”

11. After considering the material on record and also the legalposition, the instant appeal can only be entertained if groundsgive rise to substantial question of law but in absence of sameappeal is liable to be dismissed.

12. Accordingly, instant appeal is hereby dismissed. Misc.application, if any, stands disposed of.

13. No order as to cost.

(ASHOK KUMAR JAIN),J

PREETI VALECHA /268