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2017 DIGILAW 331 (ALL)

Nafees Khan v. Munne Babu

2017-01-24

P.K.S.BAGHEL

body2017
JUDGMENT Pradeep Kumar Singh Baghel,J. This is a second appeal by the plaintiff under Section 100 of the Code of Civil Procedure. The plaintiff-appellant has filed a suit, being Original Suit No. 57 of 2002, for permanent injunction for restraining the defendants from interfering in his possession over the disputed property. The plaintiff's case was that the disputed property was purchased by him by a registered sale-deed dated 06th January, 1976 and he started raising construction but due to paucity of fund, he could not complete the construction. The suit was contested by the defendants, whose stand in the written statement was that Mirza Azam Beg, who had executed the sale-deed in favour of the plaintiff, was not owner of the property and the property was used as Imambara and the plaintiff was not in possession of the land. The land is belonging to Waqf and is used by the public. The trial Court dismissed the suit of the plaintiff on 31s March, 2012. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal, which was allowed by the lower appellate Court on 17th October, 2012 and the matter was remanded to the trial Court to record a finding with respect to the claim of the plaintiff afresh in the light of the directions given therein. After the matter was remanded, the trial Court considered the points framed by the lower appellate Court and held that Mirza Azam Beg had no right to transfer the property and in the municipal records the property was entered as abadi and the name of the plaintiff or Mirza Azam Beg was never recorded over the land in dispute. The trial Court also found that the property in dispute was, in fact, an Imambara. It further found that in the plaint the claim of the plaintiff was totally vague and general. The detail of the property has also not been mentioned in the plaint and the Nagar Nigam or the State Government has not been impleaded in the suit. Hence, the suit was dismissed by the trial Court vide judgment and order dated 30th November, 2015. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred a regular first appeal, which has also been dismissed on 23rd September, 2016. Learned counsel for the appellant has urged that both the Courts below have recorded perverse findings. Hence, the suit was dismissed by the trial Court vide judgment and order dated 30th November, 2015. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred a regular first appeal, which has also been dismissed on 23rd September, 2016. Learned counsel for the appellant has urged that both the Courts below have recorded perverse findings. He has taken the Court to various findings recorded by the trial Court and the lower appellate Court in support of his submissions. I have heard learned counsel for the appellant and perused the judgment of the trial Court, lower appellate Court and also the previous order of the trial Court. Both the Courts below have recorded findings of fact regarding execution of the sale-deed by one Mirza Azam Beg and in respect of the possession of the plaintiff. From the evidence both the Courts below were satisfied that the land in dispute was used for Imambara and in the municipal records also the predecessors of the plaintiff has never been recorded as owner. The Courts below have also found that the plaintiff has failed to establish his possession over the disputed property. Hence, in my view, the judgments of the Courts below do not warrant any interference under Section 100 of the Code of Civil Procedure. It is a trite that a second appeal can be admitted only on substantial questions of law. After considering the submissions of the learned counsel for the appellant and after perusal of the grounds of appeal, I am satisfied that no substantial question of law arises in this appeal. The Supreme Court in the case of State Bank of India and others v. S.N. Goyal, AIR 2008 SC 2594 , has elaborately considered the scope of Section 100 of the Code of Civil Procedure and also as to what is a substantial question of law. The relevant part of the judgment of the Supreme Court in extracted herein-below: "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. 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 viewpoints, 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..." The Supreme Court in the case of Kashibai and another v. Parwatibai and others, (1995) 6 SCC 213 , has held that the Court under Section 100 of the Code of Civil Procedure cannot re-appreciate the evidence on record. The relevant of the judgment reads thus: "12. Further, it may not be out of place to mention that Sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well reasoned findings of the two Courts below. Consequently, this appeal must succeed." In view of the above, I find that no substantial question of law arises in this second appeal. Hence, the appeal is dismissed. No order as to costs.