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2022 DIGILAW 2697 (RAJ)

Chain Singh v. Mangoo Singh

2022-11-02

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff (hereafter referred to ’plaintiff’) has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 17.09.2016 passed in civil regular appeal No. 03/2013 (32/13) by the Additional District Judge, No.1, Jhunjhunu, affirming the judgment and decree dated 13.08.2013 passed in Civil Suit No.37/2006 by the Additional Civil Judge (Jr. D.), Udaipurwati, District Jhunjhunu whereby and whereunder the plaintiff’s civil suit, for permanent injunction, has been dismissed and counter claim of the defendants has been decreed in respect of Bada in question in the following terms:- 2. Heard counsel for appellant and perused the impugned judgment. 3. It is not in dispute that plaintiff and defendants are real brothers and the dispute is in respect of a Bada situated in village Bagoli, Tehsil Udaipurwati, District Jhunjhunu. Plaintiff claimed his ownership and possession over the Bada in question but has not produced any document to show his ownership and possession. Plaintiff’s mother Smt. Pan Kanwar (PW-5) has clearly deposed that the Bada in question is in possession of defendant No.1-Mangoo Singh. Defendant No.1-Mangoo Singh has produced document of water bills in respect of Bada in question. It has come on record that the plaintiff does not reside in village and is in Government Job posted at Khetri. It has also come on record that in oral partition, Mangoo Singh did not get his share in the Haveli. In totality of evidence, both courts below have recorded a fact finding that the Bada in question is in possession of defendant No.1 and accordingly plaintiff’s suit for permanent injunction has been dismissed and counter claim of defendants has been decreed. The trial court has imposed condition upon defendants not to raise construction over the Bada without prior permission of the Gram Panchayat. The judgments and decree are just and cannot be said to suffer from any infirmity, irregularity or jurisdiction error. 4. The counsel for appellant could not point out any perversity on the part of courts below in recording findings which are based on appreciation/re-appreciation of evidence. In absence of only perversity, or when findings are neither based on surmises and conjunctures nor the same do not give rise to any substantial questions of law. Substantial questions of law are sine-qua-non to exercise the jurisdiction of high court under Section 100 of CPC. 5. In case of Damodar Lal Vs. In absence of only perversity, or when findings are neither based on surmises and conjunctures nor the same do not give rise to any substantial questions of law. Substantial questions of law are sine-qua-non to exercise the jurisdiction of high court under Section 100 of CPC. 5. In case of Damodar Lal Vs. Sohan Devi [ (2016)3 SCC 78 ], the Apex Court held that even if finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. The safest approach on perversity is the classic approach on the reasonable man’s inference on facts. 6. In case of State of Rajasthan v. Shiv Dayal [ (2019)8 SCC 637 ], the Hon’ble Supreme Court held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Hon’ble Court held as under:- "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)." 7. In the case of C. Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and ors. [ (2020)4 SCC 659 ], wherein the Hon’ble Supreme Court has observed that where two courts have reached a finding which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC. 8. 8. In view of concurrent findings of fact recorded by both courts below, this court is not inclined to interfere with impugned judgments, there is no force in the second appeal as no substantial question of law arises in the matter, hence the same is hereby dismissed. No Costs 9. Stay application and any other pending application, if any, stand(s) disposed of.