Beerja Nishad vs Ramdeen

Pradeep Kumar Singh Baghel, J.—This is plaintiff-appellant''s second appeal under Section 100 of the C.P.C.

The plaintiff-appellant filed a suit for rectification in the sale deed and the permanent injunction over plot no. 703. It was averred that the plaintiff-appellant has purchased plot no. 703 over which he has possession but in the sale deed it has been wrongly mentioned as plot no. 702. The case of the plaintiff-appellant was that he has no possession over plot no. 703 wherein he has constructed poultry form, boring etc.

Later, the plaintiff-appellant has given up his claim for rectification of the sale deed over plot no. 702. The trial court found that the plaintiff-appellant is owner of only plot no. 702 in respect of which the sale deed was executed on 07.06.1994 and 17.08.1994. The trial court has also found that the defendants-respondents are in possession of plot no. 703 as such, the finding is based on the documentary and oral evidence.

The plaintiff-appellant went in the appeal before the learned District Judge who has also dismissed the appeal.

I have heard learned counsel for the plaintiff-appellant Sri Manish Kumar Nigam and Sri Narendra Kumar Chaturvedi for the defendants-respondents.

Learned counsel for the plaintiff-appellant Sri Manish Kumar Nigam submits that the plaintiff has very clearly pleaded that over plot no. 703, he has raised some constructions and he is in possession for the said property, hence he has drawn attention of the Court on the written statement filed by the defendants-respondents, according to which, the pleading of the plaintiff with respect to the existence of construction over plot no. 703 has not been specifically denied.

Sri Nigam further submits that in view of the said fact, the findings of both the courts below are perverse. The learned counsel for the caveator Sri Chaturvedi submits that the plaintiff-appellant has given up his prayer for correction of the sale deed in respect of plot no. 703. He has also drawn the attention of the to the documentary evidences on Khasra Nos. 52 Ga, 51 Ga and Khasra Nos. 78 Ga, 79 Ga which clearly indicate that the names of the defendants-respondents were recorded over plot no. 703 in the Khatauni and their possessions have also been demonstrate upon aforementioned Khasras.

Lastly, Sri Chaturvedi submits that the plaintiff-appellant in his cross-examination, has clearly admitted that he has no concern with plot no. 703.

I have heard learned counsel for the parties and perused the record.

It is common ground that the plaintiff-appellant has got the sale deed executed in his favour in respect of plot no. 702 vide sale deeds dated 07.06.1994 and 17.08.1994. The said sale deed was only in respect of plot no. 702. The only prayer made in the plaint with respect to correction of the sale deed which has been given up by the plaintiff. Both the courts below on the basis of oral and documentary evidences arrived on the conclusion that the defendants-respondents are in possession over plot no. 703. Learned counsel for the plaintiff-appellant has fail to satisfied the Court that the findings recorded by both the courts below are based on oral as well as documentary evidences, are perverse in any manner, hence, I find that the concurrent finding of fact recorded by both the courts below with respect of plot no. 703 does not warrant any interference under Section 100 of the C.P.C. Besides this, the urgency raised by the plaintiff in this second appeal does not raise any substantial question of law.

In the long series of decisions of Supreme Court the issue with regard to the substantial questions of law has been settled. The Court has held that mere questions of law are not the substantial questions of law. The Supreme Court in the case of AIR 2008 Supreme Court page 2594 (State Bank of India and others v. S.N. Goyal), it has been held as under :-

"9.1. Second appeals would lie in cases which involve substantial questions of law. The word ''substantial'' prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may."

In view of the aforementioned facts and circumstances of the case, I do not find that any substantial question of law arise in this appeal. The appeal lacks merit and is liable to be dismissed.

Accordingly, the appeal is dismissed.