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2012 DIGILAW 2248 (RAJ)

Himmat Singh v. Manohar Singh

2012-12-03

R.S.CHAUHAN

body2012
JUDGMENT 1. - The appellant is aggrieved by the judgment dated 07.11.2006 passed by the learned Additional Civil Judge (J.D.) No.1 Pali whereby the learned Judge had dismissed the suit filed by him. The appellant is also aggrieved by the judgment dated 01.20.2011 passed by the District Judge Pali whereby the learned Judge, Pali has dismissed the appeal filed by the appellant and has confirmed the judgment dated 07.11.2006. 2. Briefly the facts of the case are that the plaintiff appellant had filed a suit for mandatory and permanent injunction before the learned Magistrate inter alia claiming that appellant-plaintiff owns and possesses a Plot No.13, in village Sedariya, Tehsil Pali. The said plot was sold to the appellant plaintiff by the Gram Panchayat, Itandra Mertiya by patta No.21 dated 27.11.1984. It was averred that one Manohar Floating Frame 2 Singh, is the owner of a plot situated on the southern side of the appellants plot. He has encroached about 10 feet of the appellant's plot from southern side. Therefore, he complained to Gram Panchayat and to the Developed Officer Rani. The respondents-defendants filed their written statement. On the basis of the pleadings of the parties, the learned trial court framed three issues including the issue of relief. In support of his case, the appellant-plaintiff examined himself and exhibited three documents. The respondent-defendant examined four witnesses and exhibited two documents. However, by judgment and decree dated 07.11.2006, the learned Magistrate dismissed the suit. Against the judgment and decree dated 07.11.2006, the appellant filed an appeal before the learned Judge. But, by judgment and decree dated 01.10.2011, the learned Judge dismissed the appeal. Hence, this second appeal before this court. 3. Mr. R.S. Choudhary, the learned counsel for the appellant, has vehemently contended that commissioner's report does exist which clearly shows that the plot of the appellant was encroached upon by Manohar Singh. However, the said report has been ignored by both the courts below. Therefore, a grave illegality has been committed. 4. Heard the learned counsel for the appellant and perused the record. 5. A bare perusal of the record clearly shows that the the said report was never exhibited and marked as a document. Since the document was never marked and exhibited, the learned courts below cannot be faulted for having ignored the said document. 4. Heard the learned counsel for the appellant and perused the record. 5. A bare perusal of the record clearly shows that the the said report was never exhibited and marked as a document. Since the document was never marked and exhibited, the learned courts below cannot be faulted for having ignored the said document. Moreover, both the courts below have meticulously discussed the other evidence which was brought on record. Thus, the entire case is based on appreciation of facts. In fact, no substantial question of law arise in the present case. 6. It is, indeed, trite to state that the second appeal does not lie merely on the basis of finding of fact. In the case of Gurdev Kaur and Ors. v. Kaki and Ors., (2007) 1 SCC 546 , the Apex Court interpreted Section 100 CPC after it was amended in 1976. The Hon'ble Supreme Court held as under: "Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words " substantial question of law" which is indicative of the legislative intention. The legislative intention is very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, is: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 CPC". It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 CPC". 7. This position has been followed constantly both by this Court and by the Apex Court. This second appeal is bereft of any substantial question of law. Therefore, it is not maintainable. 8. Since this appeal does not involve any substantial question of law, this appeal is devoid of any merit; it is, hereby, dismissed.Appeal dismissed. *******