Raghuveer Saran vs Bhagwan Das

Pradeep Kumar Singh Baghel, J.—This is defendant''s second appeal under section 100, C.P.C.

The plaintiff-respondent filed a suit for permanent injunction restraining the defendant-appellant from interfering in his possession. The plaintiff''s case was that he is owner and in possession of the land in question which is shown in the plaint map by letters "A, B, C, D, Y, R, L", (hereinafter referred as suit property). It is his Sahan land and he has constructed chabootara which is shown by letters "D,Y,R,L". The plaintiff averred in the plaint that his house is an ancestral property and towards east and north house of the defendant is situated. The defendant is causing interference in his possession over the suit property and he intends to demolish chabootara for which he does not have any right. It is stated that cause of action arose on 15.8.2006 when the defendant attempted to demolish the chabootara.

The defendant - appellant contested the suit and took the plea that suit property is his Sahan and plaintiff has constructed said chabootara in his absence without any title or authority. The defendant also filed counter claim for demolition of the chabootara and possession over the said land.

The trial court dismissed the suit of plaintiff holding that he is not owner of the property and the land belongs to Gaon Sabha. The trial court also recorded a finding that defendant has not adduced any evidence to substantiate his claim over the said land and in spite of the said finding, the trial court allowed his counter claim.

The plaintiff and defendant both preferred two separate appeals. The appellate court has dismissed the plaintiff''s appeal affirming the findings of the trial court in so far as claim of the plaintiff was rejected and also dismissed counter claim of the defendant. However, in respect of appeal of the defendant-appellant, the judgment and decree of the trial court was modified to the extent that claim of the defendant was rejected by the appellate court and it set aside the order of the trial court and modified the judgment of the trial court to the extent that the land in question does not belong to Gaon Sabha. However, the appellate court.

The plaintiff has not preferred any second appeal against the judgment of the appellate court. The present appeal has been preferred by the defendant.

Learned counsel for the appellant Sri R.U. Ansari, submits that trial court has rightly allowed counter claim of the appellant and without reversing finding of the trial court in respect of his counter claim, the appellate court has set aside the order of the trial court. He further submits that defendant has established that suit property belongs to them, hence the order of the appellate court setting aside judgment and decree of the trial court without reversing findings recorded by the trial court, is illegal.

Sri Kamal Mehrotra, learned counsel for the plaintiff respondent has supported the impugned judgment and decree of the appellate court and submits that trial court has clearly recorded a finding that defendant has not adduced any evidence in support of his claim.

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

The trial court has dismissed suit of the plaintiff on the ground that plaintiff has not established his right over the suit property. The trial court framed nine issues, out of which issue no. 1 and 2 were in respect of title of the plaintiff. While deciding issue no. 1 and 2, the trial court has found that from the oral as well as documentary evidence, plaintiff has failed to establish his right over the suit property. It has recorded a finding that the land vested in Gaon Sabha and Gaon Sabha is owner of the suit property including chabootara. It has also recorded finding that defendant has not led any evidence to establish his title over the disputed property. In spite of recording said finding, the trial court has allowed counter claim of the defendant that disputed chabootara is part of Sahan of the defendant but it has vested in Gaon Sabha. I find that appellate court has rightly reversed the finding of the trial court. Once the trial court itself has recorded finding that there is no evidence to support counter claim of the defendant-appellant, the trial court was not justified in allowing his counter claim when the defendant had failed to establish his claim. In any view of the matter, findings of both the courts below are findings of fact.

The Court under section 100,C.P.C. has limited jurisdiction and second appeal can be entertained only if a substantial question of law arises in the matter. It is trite that even error of law is not sufficient to entertain second appeal unless substantial question of law arises in the appeal. From the facts and submissions advanced, it is evident that a pure question of fact has been decided by the courts below in respect of title of the suit property. Learned counsel for the appellant has failed to satisfy the Court that finding of the trial court to the effect that he did not lead any evidence to establish his title, is a perverse finding.

In view of the above, I find that appellate court has rightly reversed the order of the trial court. The Supreme Court in long series of decisions has elaborately dealt with about the scope of section 100,C.P.C. and in the case of State Bank of India and others v. S.N. Goyal, AIR 2008 SC 2594, while considering the scope of Section 100 of the Code of Civil Procedure and also as to what is a substantial question of law, the Supreme Court has held as extracted herein-below:

"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 viewpoints, 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."

The Supreme Court in the case of Kashibai and another v. Parwatibai and others, (1995) 6 SCC 213, has held that the Court under Section 100 of the Code of Civil Procedure cannot re-appreciate the evidence on record. The relevant of the judgment reads thus:

"12. Further, it may not be out of place to mention that Sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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 the case involves a substantial question of law. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to re appreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well reasoned findings of the two Courts below. Consequently, this appeal must succeed."

After careful consideration of the matter, I find that no substantial question of law arises in the present second appeal. Hence, the appeal lacks merit and is accordingly dismissed.

No order as to costs.