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2017 DIGILAW 673 (ALL)

MAHMAD @ MEHMOOD v. TUFAIL

2017-03-02

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—This is plaintiff’s second appeal under Section 100 C.P.C. 2. The plaintiff-appellant has preferred this second appeal against the judgment and decree of the trial Court dated 11.8.2016 and the judgment of the appellate Court dated 4.11.2016, dismissing the appeal. 3. The plaintiff filed a suit for permanent injunction restraining the defendant from interfering in his Sehan land and further direction to remove his wall and a new door which he has opened in the suit property (Sehan land of the plaintiff). 4. The plaintiff’s case was that he is the owner and in possession of the suit property which is towards east of his house and is Sehan land. The defendant had no concern with the suit property. The defendant intend to raise a wall. The cause of action arose on 28.8.2009 when he removed his wall and tried to raise a new wall on the Sehan land of the plaintiff and has opened a door therein. 5. The trial Court has received the evidence and framed issues. The plaintiff and defendant both had got themselves examined. The trial Court appointed an Amin Commissioner who submitted his report on 31.10.2009. The plaintiff appellant filed his objection on 29-GA-2 dated 2.3.2012 against action report (14-Ga-2). After considering the evidence on record, the learned Additional Civil Judge has dismissed the suit. 6. Dissatisfied with the judgment and decree of the trial Court, the appellant went in appeal which has also been dismissed. 7. The defendant contested the suit. He filed his written statement. The stand, that has been taken by the defendant is that the suit property is not the Sehan (appurtenant of the land) of the plaintiff. It is an Abadi land and a hand pump was also installed there for the use of the local people. The plaintiff wanted to grab this property. It has also stated that the averments made in the plaint, is totally vague and of general in nature. From the plaint map as well as from the averments of the plaint, the property is not identified. 8. The trial Court considered the evidence on record and found that the plaintiff has failed to establish that the suit property is his Sehan land. 9. PW-2 in his statement has stated that defendant’s entrance is towards north at RCC road and there is 10 feet open area towards RCC road as entrance. 8. The trial Court considered the evidence on record and found that the plaintiff has failed to establish that the suit property is his Sehan land. 9. PW-2 in his statement has stated that defendant’s entrance is towards north at RCC road and there is 10 feet open area towards RCC road as entrance. He has also stated that towards east of defendant’s house, the house of Kalloo and Azmi are situated and the plaintiff’s house is situated towards west of the defendant’s house. 10. The trial Court after analyzing the oral as well as the documentary evidences including the Amin Report has recorded the finding that towards the north of the plaintiff’s house, there is common way. 11. Thus, the claim of the plaintiff that towards east of Sehan land has not been found to be correct. The appellate Court has affirmed the finding of the trial Court. 12. Learned counsel for the appellant Sri Ramendra Asthana submits that the findings of both the Courts below are perverse. The appellate Court has framed the points of determination. The appellate Court has considered the evidence on record and has also adverted to the issues whether the plaintiff has failed to establish that before 1st July, 1952, the plaintiff’s house was adjacent to the suit property. From the Pariwar Register and other documentary evidences, it was found that the plaintiff’s date of birth was 25.6.1944. 13. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 , has held as under : “13. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the Court of Law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same.” 14. In Kulwant Kaur v. Gurdial Singh Mann, 2001 (4) SCC 262 , the Supreme Court has held that the question whether the lower Court’s finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgmet of the High Court as to perversity in order to show compliance with the provisions of Section 100 CPC. However, there must be a clear finding in the judgmet of the High Court as to perversity in order to show compliance with the provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in the second appeal. 15. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, 2000 (6) SCC 120 , the Apex Court has held that it is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the Court below were perverse. 16. The liberty emerges from the aforesaid cases is that the second appeal under Section 100 C.P.C. is maintainable only on the substantial questions of law and not on the facts. In the present case, as noted above, the learned counsel for the appellant has failed to point out any perversity in the judgment under challenged. 17. Both the Courts below have disbelieved the testimony of PW-2, on the ground that in the year 1952, he was eight years old, hence, his statement regarding suit property and facts regarding possession was not found to be worth credence. 18. I do not find any error in the findings recorded by both the Courts below. 19. The scope of interference under Section 100 C.P.C. is well-settled. The appeal lacks merit and is accordingly dismissed.