Shobha Ram vs Tiras Pal

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

The plaintiff-appellant filed a suit against defendants-respondents, his cousin brothers for permanent injunction. The defendant nos. 2 and 3 are sons of plaintiff''s father''s real brother namely Shri Chand. The plaintiff''s case was that on 26.06.1940, a sale deed was executed in favour of his father and uncles in respect of Khasra no. 1797, area admeasuring 7 Biswa and they are in possession and have constructed their separate houses. In the year 1958, a family settlement was arrived at in the presence of grand father of the plaintiff and in terms of the said settlement, the plaintiff''s father and his uncles got their share and they are in possession. The disputed property which have been shown by letters A, B, C and D in the plaint map was allotted to his father Beni Ram and after the death of his father in the year 1984, the plaintiff has become the owner and in possession of the suit property. It is stated that in the family settlement, it was agreed by all the parties that the area shown in the plaint map as E, F. G, H. N, M and O, admeasuring 165 feet was left for Sehan for common use. It is stated that the defendant no. 2 has executed a sale deed in favour of defendant no. 1. The cause of action arose when the defendant no. 1 tried to raise construction over the suit property. The trial court dismissed the suit recording the finding that the plaintiff has failed to prove that the suit property was a Sehan land which is used by the plaintiff and it also found that from the record, it was established that the suit property was given to father of defendant no. 2, Jagveer and later he executed a sale deed in favour of defendant no. 1. The trial court has also recorded the finding that the plaintiff was not in possession of the Sehan land.

Aggrieved by the judgment and decree of the trial court, the plaintiff went in appeal which was also dismissed by the appellate court affirming the findings of the trial court.

Learned counsel for the plaintiff-appellant submits that the order of both the courts below are illegal and perverse. No other submission has been made. Although several grounds have been taken in the appeal and substantial question has also been suggested.

I have heard learned counsel for the plaintiff-appellant and perused the record.

The genealogy mentioned in the plaint has been admitted by the defendants-respondents which indicates that the defendant nos. 2 and 3 are the cousin brothers of the plaintiff. Their fathers were the real brothers. The suit property was purchased by their father Baldeo on 05.06.1940 who has died in the year 1964. Prior to his death, a family settlement was arrived at in the year 1958 in the presence of their grand father Baldeo. It is admitted thing that pursuant to the said family settlement, the plaintiff and the defendants came into possession over their share. The suit property admittedly came in the share of Jagveer, the father of defendant no. 2, his possession has also not been denied. Later, he has sold the said property in favour of defendant no. 1. The claim of the plaintiff is that the suit property which have been shown by letters E, F, G, H, N, M and O is a common Sehan and the plaintiff as well as defendants are using the said Sehan land. The trial court referring the statement of the some of the witnesses namely PW-3 Sonepal and PW-2 Virendra as well as documentary evidence, has arrived at the conclusion that the plaintiff has failed to prove his possession over the suit property. The appellate court has affirmed the finding of the trial court on the said issue.

Learned counsel for the appellant has failed to point out any perversity in the judgments of the trial court as well as the appellate court. Both the courts below have recorded the findings of fact regarding the possession of the Sehan land.

I do not find any perversity in the findings recorded by both the courts below on the said issue and no substantial question of law arise in this appeal. The Supreme Court in the case of State Bank of India & Ors. v. S.N. Goyal, AIR 2008 Supreme Court page 2594, has examined the scope of Section 100 C.P.C. elaborately wherein, it has been held thus :-

"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."

Having regard to the aforesaid facts and circumstances of the case, I find that no substantial question of law arise in this appeal.

The appeal lacks merit and is dismissed accordingly.

No order as to costs.