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2005 DIGILAW 823 (PAT)

Ram Balak Rai v. Daya Devi

2005-09-14

J.N.BHATT

body2005
Judgment 1. In this Second Appeal tiled by the appellants under Section 100 of the Code of Civil Procedure, 1908 (in short the C.P.C.), the challenge is against the judgment and decree passed by the appellate Court, whereby, the judgment and decree passed by the trial court dismissing the suit of the appellants-original plaintiffs, was affirmed. 2. The appellants herein, the original plaintiffs, initiated a legal battle by filing Title Suit No. 168 of 1978/409 of 1988 contending that they are entitled to the reliefs of declaration of title and confirmation of possession with a further prayer to restrain the respondents-original defendants from entering on the suit land by the order of the Court by granting permanent injunction. The original plaintiffs, as well, the original defendants led evidence. The trial court raised issues in terms of the pleadings of the parties. 3. Upon a consideration of the evidence documentary, as well as, oral, the trial court did not hold in favour of the contentions of the plaintiffs as a result of which the suit came to be dismissed, on 30.4,1992, which upon being challenged in the appeal before the District Court by filing Title Appeal No. 64 of 1992 was, also, unsuccessful. Hence, the original plaintiffs have come up before this Court challenging the illegality and validity of the judgments and decrees of both the courts below. 4. It is a settled principle of law that in the jurisdictional zone of an appellate court while entertaining a Second Appeal under Section 100 of the C.P.C. there are two limitations and inhibitions which must be made clear at this stage. From the plain perusal of Section 100 of the C.P.C. it becomes obvious that an unsuccessful party is entitled to file a Second Appeal from the appellate decree. However, the High Court is to be satisfied that the case involves a substantial question of law. From the plain perusal of Section 100 of the C.P.C. it becomes obvious that an unsuccessful party is entitled to file a Second Appeal from the appellate decree. However, the High Court is to be satisfied that the case involves a substantial question of law. It is, therefore, clear that there must be a question of law to be formulated and it must be substantial in nature in terms of the provision of Section 100 of the C.P.C. Section 100 of the C.P.C. which deals with the power and the right of the parties in a given situation for filing a Second Appeal reads as hereunder: "Second Appeal (1) Save as otherwise expressly provided in the body of the 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 the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (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 of the appeal, be allowed to argue that the case 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." 5. After having heard learned counsel appearing for the appellants-original plaintiffs and considering the facts and circumstances emerging from the records of the present case, this Court is of the opinion that there are two concurrent findings of fact recorded by the courts below precisely on the issue again sought to be raised and focused about the right of the original plaintiffs in respect of the subject matter of the suit which is immovable property. It is well known that in a Second Appeal the scope of High Court is circumscribed. No doubt, the High Court can interfere with the factual findings also recorded by the courts below provided it is shown to the satisfac-tion of the Court that it is perverted and insupportable from the evidence on record. 6. In the present case, apart from being not any further question of law much less substantial nature of question of law it has been, concurrently, decided by both the courts below that the plaintiffs have failed to prove any right, title and interest on the subject matter of the suit. Needless to reiterate that in a Second Appeal re-evaluation and reassessment of the evidence is not permissible. Incidentally, it could be considered if substantial question of law has arisen for adjudication. Both the courts below have found from the finding of fact that the original plaintiffs-appellants herein, have not been able to substantiate their case of having right of declaration of their share and confirmation of possession. It kannot be said even for a moment that the concurrent finding of fact recorded by both the courts below are in any way tainted or suffering from the vice of perversity, unreasonableness or celebrated principles of law. It is in this context that this Court has no option but to raise its hands in helplessness and to dismiss this SecMid Appeal. 7. Accordingly, this Second Appeal shall stand dismissed but without any order as to costs.