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2005 DIGILAW 942 (PAT)

Deola Khatoon v. Vakil Mian

2005-10-19

J.N.BHATT

body2005
Judgment 1. Learned counsel appearing for the parties have been heard. 2. The impugned judgments of the trial court, as well as, the first appellate court have been examined and evaluated. The necessary, relevant and important evidence is, also, taken into consideration. 3. Obviously, the most important criteria in a case of Second Appeal as provided under Section 100 of the Code of Civil Procedure, 1908 (in short, the C.P.C.) has been that an appeal would lie from an appellate decree provided there is "any substantial question of law" involved in the appeal. It is, therefore, very clear that the Court has to first satisfy itself that there is involvement of not only a question of law but a substantial question of law requiring judicial adjudication. Upon consideration, if such a question is not found to be involved, obviously, the appeal shall be liable to be dismissed. 4. The High Court would be justified upon consideration and adjudication of the Second Appeal provided there is some such question and it has to be formulated even at the stage of admission of Second Appeal In this matter, at the admission stage, despite extensive exercise and extensive efforts and search nothing has been successfully, found or spelt out on record that there is involvement of "sub stantial question of low. " requiring interference against the concurrent finding of facts in two decisions challenged in terms of the provisions of Section 100 of the C.P.C. 5. Therefore, it would not be permissible or justified for the court in interfering and setting aside the impugned judgments, if found, even at the admission stage, when the party has not been able to show or the Court does not find any involvement of "substantial question of law." A question of fact, obviously, cannot be allowed to be raised in the Second Appeal. Again, it is, also, a celebrated principle of law in, so far as, the merits of Second Appeal are concerned. Ordinarily, when the concurrent findings of fact are recorded no interference is warranted unless there exists a substantial question of law. 6. In this Second Appeal, on hand, the parties are Mohammadans governed by Sunni concept of Mohammadan Law. There is, also, no dispute about the relationship. Ordinarily, when the concurrent findings of fact are recorded no interference is warranted unless there exists a substantial question of law. 6. In this Second Appeal, on hand, the parties are Mohammadans governed by Sunni concept of Mohammadan Law. There is, also, no dispute about the relationship. The appellants-original plaintiffs tiled a Suit for Partition being Partition suit No. 13 of 1991/25 of 1994, against the defendants-respondents herein, which came to be dismissed by Subordinate Judge II, Bagaha, by his judgment dated 26.5.1995, which on being questioned in Title Appeal No. 52 of 1995/32 of 1996, also, came to be dismissed by the 4th Additional District Judge, West Champaran, Bettiah, on 12.9.1997, and hence the present Second Appeal by invocation of the provision of Section 100 of the C.P.C. by the original plaintiffs. 7. The plaintiffs claim for partition in respect of the Suit properties came to be contested by the respondents, original defendants, on various grounds including a ground that the partition had, already, taken place long before which was found to be acceptable by the courts below by concurrent finding of facts on appreciation of evidence. The trial court upon consideration of the entire testimonial collections and documentary evidence reached to a conclusion that there was already a partition between the parties which prompted the Subordinate Judge to dismiss the Suit for Partition filed by the present appellants-original plaintiffs. 8. The learned trial court Judge has given consideration to the entire evidence and upon the scrutiny and the screening of the facts on record, reached to a conclusion that there had been a partition between the parties in respect of the suit properties. The suit was found to be without any substance. Thus, a finding of fact was recorded by the Subordinate Judge which was confirmed and affirmed by the appellate court in the Title Appeal. 9. The concurrent finding of facts reached by both the courts below cannot be shown or has not been spelt out to be in any way perverse, illegal or suffering from the vice of non-application of mind on vital issues or facts and the evidence and it cannot be said that the factual concurrent findings recorded by the courts below are based on no fact and evidence. 10. 10. It is, therefore, necessary to bear in mind that the factual conclusions reached by both the courts below and the reasons stated in support thereof are quite weighty requiring no interference as no question of substantial law has been involved in this Second Appeal, as a result of which this Second Appeal at the admission stage deserves to be dismissed. 11. Accordingly, this Second Appeal shall stand dismissed with costs.