STATE OF RAJASTHAN & ORS. versus SHIV DAYAL & ANR. on 14 August 2019

1. These appeals are directed against the final judgment and orderdated 23.03.1999 passed by the High Court of Judicature for RajasthanBench at Jaipur in S.B. Civil Second Appeal Nos.83, 84 and 85 of 1999whereby the High Court dismissed the second appeals filed by theappellants herein.

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2. A few facts need mention hereinbelow for the disposal of theseappeals, which involve a short point.

3. The appellants are the defendants and respondent No. 1 is theplaintiff in the civil suit out of which these appeals arise.

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4. The appellant No. 1 is the State of Rajasthan and respondentNo. 1 claims to be the mining lessee in relation to the suit land under theMines and Minerals (Development & Regulation) Act (hereinafterreferred to as “MMRD Act”).

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5. The respondent No. 1 filed a civil suit against the appellant -State and its authorities and claimed therein a relief of grant of permanentinjunction restraining the State and its authorities from interfering incarrying out the mining operations on the suit land by respondent No.1.

6. Respondent No. 1 claimed this relief inter alia on the avermentsthat the suit land was not the part of any protected Forest area as claimedby the State authorities but it was a part of the Revenue area. It wasaverred that since the suit land did not fall in the protected forest area,the respondent No. 1 (plaintiff) had a right to carry out mining operationon the suit land without any interference of the State and its authorities.

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7. The State contested the suit by denying the averments made inthe plaint. The Trial Court framed issues. Parties led their evidence. ByJudgment and decree dated 10.05.1998, the Trial Court decreed in favourof the plaintiff the suit and granted an injunction against the State and itsauthorities in relation to the suit land, as prayed in the plaint.

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8. The State felt aggrieved and filed first appeal before the DistrictJudge. By Judgment dated 03.09.1998, the first Appellate Court dismissedthe appeal and affirmed the judgment/decree of the Trial Court givingrise to filing of the second appeals by the State in the High Court.

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9. By impugned order, the High Court dismissed the second appealsholding that the appeals did not involve any substantial question of law. Itis against this order, the State felt aggrieved and has filed the presentappeals by way of special leave before this Court.

10. So, the short question, which arises for consideration in theseappeals, is whether the High Court was justified in dismissing the State’ssecond appeals on the ground that these appeals did not involve anysubstantial question of law.

11. Heard Mr. Milind Kumar, learned counsel for the appellantsand Mr. S.K. Bhattacharya, learned counsel for respondent No.1.

12. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeals, setaside the impugned order and remand the case to the High Court fordeciding the second appeals afresh on merits in accordance with law.

13. In our opinion, the need to remand the case to the High Courthas arisen because we find that the second appeals did involve severalsubstantial questions of law for being answered on merits in accordancewith law. The High Court was, therefore, not right in so holding.

14. Indeed, we find that the High Court dismissed the secondappeals essentially on the ground that since the two Courts have decreedthe suit, no substantial question of law arises in the appeals. In otherwords, the High Court was mostly swayed away with the considerationthat since two Courts have decreed the suit, resulting in passing of thedecree against the State, there arises no substantial question of law inthe appeals. It is clear from the last paragraph of the impugned order,which reads as under:

“Under these circumstances, when both the Ld. Courtshave arrived at the conclusion that the disputed area isoutside the forest area.Therefore, the principles laid downin T.N. GODAWARAN vs. U.O.I. (above-quoted) cannotbe enforced in this appeal.”

(Emphasis supplied)

15. We do not agree with the aforementioned reasoning and theconclusion arrived at by the High Court.

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A16. It is not the principle of law that where the High Court findsthat there is a concurrent finding of two Courts (whether of dismissal ordecreeing of the suit), such finding becomes unassailable in the secondappeal.

17. True it is as has been laid down by this Court in several decisionsBthat “concurrent finding of fact” is usually binding on the High Courtwhile hearing the second appeal under Section 100 of the Code of CivilProcedure, 1908(hereinafter referred to as “the Code”). However, thisrule of law is subject to certain well known exceptions mentioned infra.

18. It is a trite law that in order to record any finding on the facts,Cthe Trial Court is required to appreciate the entire evidence (oral anddocumentary) in the light of the pleadings of the parties.

19. Similarly, it is also a trite law that the Appellate Court also hasthe jurisdiction to appreciate the evidence de novo while hearing thefirst appeal and either affirm the finding of the Trial Court or reverse it.D20. If the Appellate Court affirms the finding, it is called “concurrentfinding of fact” whereas if the finding is reversed, it is called “reversingfinding”. These expressions are well known in the legal parlance.

21. When any concurrent finding of fact is assailed in secondappeal, the appellant is entitled to point out that it is bad in law becauseEit was recorded de hors the pleadings or it was based on no evidence orit was based on misreading of material documentary evidence or it wasrecorded against any provision of law and lastly, the decision is onewhich no Judge acting judicially could reasonably have reached. (seeobservation made by learned Judge -Vivian Bose,J.- as HisLordship then was a Judge of the Nagpur High Court in RajeshwarFVishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar& Ors., AIR 1943 Nagpur 117 - Para 43).

22. In our opinion, if any one or more ground, as mentioned above,is made out in an appropriate case on the basis of the pleading andevidence, such ground will constitute substantial question of law withinGthe meaning of Section 100 of the Code.

23. Coming to the facts of the case, we are of the view that thefollowing are the questions which do arise for consideration in the suit/appeal for proper adjudication of the rights of the parties to the suit andare in the nature of substantial questions within the meaning of SectionH100 of the Code.

24. First, whether the suit land was a part of a protected Forestarea, i.e., Forest land and, if so, whether the parties satisfied all thestatutory provisions of the Forest Laws enacted by the Center and theState?

25. Second, whether the suit land was a part of a Revenue landand, if so, whether the parties to the suit satisfied all the statutory provisionsof the State Revenue Laws.

26. Third, whether a mining lease of the suit land could be grantedby the State to the plaintiff for carrying out the mining operation inaccordance with the provisions of the MMRD Act and, if so, whether itsatisfied all the statutory provisions of the MMRD Act read with relevantForest and Revenue Laws.

27. Fourth, whether a suit is hit by any provision of Forest Lawsor MMRD Act or/and Revenue Laws expressly or by implication.

28. Lastly, whether the plaintiff on facts/evidence has proved thatthe suit land is a part of Revenue land and, therefore, it does not fall inthe protected forest area and, if so, whether any prima facie case, balanceof convenience and irreparable loss is made out for grant of permanentinjunction in plaintiff’s favour?

29. In our opinion, all the five questions enumerated above didarise in the case. As a matter of fact, the suit could not have been triedproperly without deciding these questions in the light of the pleadings,evidence and the applicable laws mentioned above.

30. In our view, the High Court, therefore, should have admittedthe second appeal by framing appropriate substantial question(s) of lawarising in the case and answered them on their respective merits ratherthan to dismiss the appeals without considering any of the aforementionedquestions.

31. It is for this reason, we are of the view that the interference inthe impugned order is called for to enable the High Court to decide thecontroversy in its proper perspective.

32. In the light of the foregoing discussion, the appeals succeedand are accordingly allowed. The impugned order is set aside. The caseis remanded to the High Court for deciding the second appeals afresh onmerits after framing appropriate substantial questions of law(s) arisingin the case.

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33. Needless to say, the High Court will frame proper questionskeeping in view the pleadings/evidence and the findings of two Courts inthe context of relevant provisions of the specific Forest Acts (Centreand State), MMRD Act and State Revenue Laws.

34. We, however, make it clear that we have not expressed anyBopinion on the merits of the case having formed an opinion to remandthe case to the High Court for deciding afresh.

35. It was, however, brought to our notice that during pendencyof the appeals Shiv Dayal- plaintiff/respondent No.1 in civil suit hasexpired. We, however, find that his wife – Smt. Kasturi Devi is alreadyCon record in two connected appeals/civil suits; Second, all the three suits/appeals, i.e., the one filed by Shiv Dayal and two filed by his wife KasturiDevi) were clubbed together for their analogues disposal; Third, whenone legal representative of the deceased is already on record, the appealwould not abate; and lastly, when the remand of the case is directed,consequential steps to bring remaining legal representative of the deceasedDon record, if there are, can always be taken before the High Court inpending appeals. It is for these four reasons, we are of the view that theappeals filed against Shiv Dayal have not abated.

36. The parties are, however, granted liberty to make necessaryamendments in the cause title of the second appeals after remand of theEcase to the High Court by deleting the name of Shiv Dayal and substitutein his place the name of his wife- Kasturi Devi and his other legalrepresentatives, if there are, before hearing of the second appeals.

37. We request the High Court to expedite the hearing of theappeals preferably within 6 months.F

Devika Gujral

Matter remitted to High Court.

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