Ghulam Mohammad Wani & Others vs Brij Mohini Dhar & Ors.

This is a motion for the admission of a civil second appeal, directed against the judgment and decree dated 2961986, passed by the learned

Third Additional District Judge, Srinagar.

The facts of the case briefly are that a suit for permanent injunction was filed by one Brij Nath Dhar, the common ancestor of respondents 1 to 7

herein, in the court of the learned Judge Small Causes, Srinagar, alleging therein that he was in possession of the suit land, and that the appellants

and respondents 8 to 20 herein were interfering with his possession and walling of the said land. He prayed for a decree for permanent injunction

against them.

The suit was resisted by the appellants and respondents 8 to 20 herein on the ground that the suit property was not in exclusive possession of

the plaintiff.

The trial court framed the following issues:

1) Whether the suit land is exclusively owned and possessed by the plaintiff ? OPP

2) If issue No: 1 is proved in affirmative, whether defendants interfere in the possession of the plaintiff OPD

3) Relief.

After the trial of the issues, the learned trial court was of the opinion that the issue No; 1 was not proved in favour of the plaintiff and, therefore,

his suit came to be dismissed. Aggrieved by the said judgment and decree of the trial court, the plaintiff filed an appeal which was heard by the

learned Third Additional District Judge. The learned first appellate court was of the opinion that the plaintiff had proved his case, and therefore it

reversed the judgment and decree passed by the learned trial court, Consequently the said court passed a decree for permanent injunction against

the appellants and the respondents 8 to 20 herein. Hence, this second appeal.

Heard learned counsel for the parties on the admission of this Civil Second appeal.

The learned counsel for the respondents 1 to 7 (the contesting respondents) resisted admission of this appeal. He raised a preliminary objection

as to its maintainability. According to him, there was no substantial question of law involved in the appeal, and, therefore, it could not be admitted.

A second appeal is provided u/s 100 of the Code of Civil Procodure, which after amendment of the Civil Procedure Code by Act XI of 1983

reads, as under :

100, Second Appeal. (1) Save as otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal

shall lie to the High court from every decree passed in appeal by any court subordinate to the High court, if the High court is satisfied that case

involves a substantial question of law.

2) An appeal may lie under this section from an appellate decree passed exparte.

3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

4) Where the High court is satisfied that a substantial question of law is involved in any case it shall formulate that question.

5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing does not involve such question;

Provided that nothing in this subsection shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the

appeal on any other substantial question of law, not formulated by it, if, it is satisfied that the case involves such question.

The amendments made in section 100 have introduced drastic changes in the law as it existed before. Second appeal is now confined to cases

where a question of law is involved and such question must be a substantial one. The grounds on which a second appeal could lie under the former

section 100, stand abrogated, and in their place, only one ground has been substituted which is a highly stringent ground, namely, that there should

be a substantial question of law is involved. It must be a substantial one.

An error of fact was not one of the grounds of second appeal mentioned in section 100, as it stood prior to amendment in 1983. Nor is it a

ground for second appeal under the amended section. The reason is that public interest requires that there should be an end to litigation even at the

risk of occasional error, and section 100 and 101 taken together distinctly prohibit second appeal on questions of fact, unless in the process of

arriving at a finding of fact the court has committed an error of law which is substantial one. The High court neither investigate the grounds on which

the finding has been arrived at, nor interfere with it, either at the instance of the appellant or at the instance of respondent.

In the memo of appeal, the judgment or decree of the learned First Appellate Court has been assailed on the following grounds:

1) That the said court has misdirected itself by recording the finding of reversal;

2) That the said court has not appreciated the facts correctly;

3) That the said court has committed an error of law by decreeing the suit of the plaintiff;

4) That the said court has not considered as to whether the identity of the land has been established by plaintiff or not;

5) That the said court has not considered the material evidence and the documents put forth by the parties before the trial court;

6) That the said court has in a cursory manner returned a finding or reversal which is legally as also factually untenable; and

7) That the said court has not applied its mind to the facts of the case.

Mr. Qayoom argued that u/s 103 CPC, the High Court has the power to determine issues of fact also in the second appeal. According to him, the

grounds of appeal as mentioned above are of such a nature that this court can interfere with the findings of the First appellate court, in this appeal.

Before appreciating the argument of Mr. Qayoom on this point, it would be advantageous to refer to Section 103, which is reproduced, as

under 5

Power of High Court to determine issue of fact. In any second appeal, the High Court, may, if the evidence on the record is sufficient,

determine any issue necessary for the disposal of the appeal.

a) which has not been determined by the lower Appellate court or both by the court of first Instance and the lower Appellate Court, or

b) which has been wrongly determined by such court or courts by reason of decision on such question of law as is referred to in section 100.

The bare perusal of this section shows that it enables the High Court in Second Appeal to determine any issue, if there is sufficient evidence on the

record, in two cases :

1) When the issue has not been determined by Lower appellate Court or by that court and by the court of first instance; or

2) when it has been determined wrongly by such court or courts on such question or law as referred to in section 100,i.e a substantial question of

law.

In the case in hard, all the issues have been determined by both the courts below, and, therefore, the first ingredient of this Section has not

been fulfilled. The fact that the trial court and the lower appellate court have differed on the point is immaterial. It is an established law that though

the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility, still the fact that it has rejected

witnesses accepted by the trial court will be no ground for interference in a question of fact, when the lower appellate court has given satisfactory

reason for doing so. Whether in a given set of circumstances two inferences are possible, the one drawn by the lower appellate court is binding on

the High Court in Second appeal.

As regard the second ingredient of section 103 CPC it, also presupposes wrong determination of an issue on such question of law, as is

referred to in section 100, i. e. a substantial question of law. As no such substantial question of law, is involved in the case, therefore this ingredient

also cannot be invoked.

All the grounds of appeal mentioned above pertain to factual side of the case and, therefore, cannot be gone into in a second appeal by this

court. The High Court has no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, howsoever gross or

inexecusable the error may deem to be.

Now as regards the questions formulated in the memo of appeal, as the substantial question of law, in my opinion, such questions are not

involved in this appeal.

In these circumstances of the case, I am of the opinion that no substantial question of law is involved in this appeal, and, therefore, it is

dismissed in limini without costs. The record obtained from the courts below be returned to them. File be consigned to records.