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2003 DIGILAW 274 (JK)

Sham Lal v. Swarna Devi

2003-09-09

S.K.GUPTA

body2003
Sham lal, plaintiff/appellant, has commenced a suit for permanent prohibitory injunction refraining the respondents/defendants to encroach upon his land measuring 14 marlas located at village Sangoor and raise any construction unauthorisedly and illegally thereon with a further relief of mandatory injunction directing the defendants/respondents to remove the wall forcibly erected on the plaintiffs plot. In resisting the suit of the plaintiff by filing a demurrer, defendants/respondents asserted that a piece of land measuring 10 marlas in Survey No. 118/82/58 had been purchased by them and are in its continuous possession. Defendants emphatically denied to have encroached upon the land of the plaintiff/appellant and raised any construction. As many as four issues were framed consistent with the context and contour to the pleadings of the parties and which read as under:- "1. Whether plaintiff was at the time of suit in possession of 14 marlas of land comprised in Khasra No. 118/82/58 situated at village Sangoor and also enjoying the right of user over the 5 1/2 ft. wide land exixting on the southern side adjoining to the said plot both fully described and specified in the Titma Shajra annexed with the sale deed dated 21-6-1984 forming part of the plaint.....OPP. 2. Whether defendants cause interference into plaintiffs possession, right of enjoyment and user over his land and illegally started constructing a wall over the portion of the plaintiffs said plot of land after covering the said lane (Galli).....OPP. 3. Whether the defendants are liable to remove and demolish the wall which they have raised on plaintiffs plot.......OPP. 4. Relief." 2. After the parties led evidence in their respective support and rebuttal of the issues, the burden of which was on them to discharge, the Trial Court decided the issues in favour of the plaintiff/appellant and decreed the suit. Aggrieved by the judgment and decree passed by the Trial Court, respondents/defendants impugned its correctness before the First Appellate Court (District Judge, Udhampur). On appreciation of the evidence and hearing the parties, the First Appellate court reversed the judgment of the Trial Court in view of the finding on issue No.2 and dismissed the appellants/plaintiffs suit. 3. Aggrieved by the judgment and decree passed by the Trial Court, respondents/defendants impugned its correctness before the First Appellate Court (District Judge, Udhampur). On appreciation of the evidence and hearing the parties, the First Appellate court reversed the judgment of the Trial Court in view of the finding on issue No.2 and dismissed the appellants/plaintiffs suit. 3. It is this judgment and decree passed by the First Appellate Court, in dismissing the appellants/plaintiffs suit against which Civil Second Appeal has been preferred by the unsuccessful plaintiff/appellant in this Court, solely on the question formulated by the appellant, which reads as under:- "Whether the order of the learned trial court can be set aside by the appellate court on the ground that the description has not been given in the plaint and when the issue of description has not been framed ?" 4. It is pertinent to point out that issue formulated by the appellant cannot , by any stretch of reasoning, be termed as a question of law, muchless a substantial question of law. The First Appellate Court has elaborately dealt with the point both on the basis of oral and documentary evidence that the plots of the land of the parties are situated opposite to each other in parallel and a lane passes through it. First Appellate Court returned a finding that it is unimaginable that the defendants would cross over the lane and encroach upon the plaintiffs land. The First Appellate Court further found from evidence on record that no Nishandehi has been carried out, so as to prove the assertion of the plaintiff with regard to the encroachment on a portion of his land by the defendants. 5. It is, therefore, indisputable gatherable that the Trial Court, after assessing and evaluating evidence assembled by the parties, recorded a finding of fact that the plaintiff/appellant could not prove the interference into the land in possession of the plaintiff by the defendants and started construction illegally and unauthorisedly. The issue formulated by the appellant, therefore, cannot be said to be a substantial question of law involved in the case necessitating to entertain the civil second appeal. 6. The issue formulated by the appellant, therefore, cannot be said to be a substantial question of law involved in the case necessitating to entertain the civil second appeal. 6. It is meaningful to point out that second appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to High Court, if the High Court is satisfied that the case involves a substantial question of law. In an appeal under section 100 C.P.C., memorandum of appeal shall precisely state substantial question of law involved in the appeal. Where High Court is satisfied that a substantial question of law is involved, it shall formulate that question in the case. No second appeal on finding of fact lies unless substantial question of law is involved in the case. 7. Section 100 C.P.C. does not confer any jurisdiction on the High Court to interfere with the question of fact and entertain a Civil Second Appeal. The First Appellate Court is the final fact finding court. 8. In the facts and circumstances of the case, I am clearly of the view that no substantial question of law is involved for determination in this case to entertain to civil second appeal. High Court cannot interfere in civil second appeal just because another view is possible on appreciation of evidence. This civil second appeal is, thus, not maintainable and is, accordingly, dismissed.