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2023 DIGILAW 2252 (RAJ)

Ram Lal v. Narsingh

2023-12-14

MADAN GOPAL VYAS

body2023
JUDGMENT : Madan Gopal Vyas, J. The defendant No. 1-appellant has preferred the present civil second appeal under section 100 of CPC against the judgment and decree dated 07.02.2014 passed by the learned Additional District Judge No. 1, Chittorgarh (hereinafter referred to as the learned First Appellate Court) in Civil First Appeal No. 23/2008 whereby the learned First Appellate Court dismissed the appeal filed by the defendant No. 1-appellant and affirmed the judgment and decree dated 01.11.2007 passed by the learned Additional Civil Judge (Junior Division), Chittorgarh (hereinafter referred to as the learned trial Court) in Civil Original Suit No. 39/2006 (119/2005) whereby the learned Trial Court decreed the suit filed by the plaintiffs-respondents herein seeking decree of permanent injunction and declaration. 2. Briefly stated, facts of the case as stated in suit are that the plaintiff was allotted a residential plot in Gram Panchayat, Samri and Patta No. 13053 dated 30.11.1975 was issued in his favour. It was stated that when the plot in question was handed over to the plaintiff, a residential house was already constructed and on the western side of the plot, there is residential house of defendant No. 1 and in between the boundary wall of plot of the plaintiff and defendant No. 1, there is a public way. In the suit, it was stated that the boundary wall and wooden gate of plaintiff's property was demolished by the defendants and the defendants have put rocks on the public way resulting into non-access of the public way to the plaintiff. Therefore, seeking decree of permanent injunction and declaration, the plaintiff preferred the suit. 3. The defendants submitted that the residential house in question is not of the plaintiff and the plaintiff had sold out the said house to the defendant No. 1 on 20.06.2004 for a consideration of Rs. 35,001/- and the defendant is in power and possession of the house in question from the last 30 years. It was also submitted that there was no way on the western side of the house in question. 4. On the basis of the pleadings of the parties, the learned Trial Court framed three issues. On behalf of the plaintiff, two witnesses were examined and one document was exhibited. On behalf of the defendant, three witnesses were examined and no documentary evidence was adduced. 5. 4. On the basis of the pleadings of the parties, the learned Trial Court framed three issues. On behalf of the plaintiff, two witnesses were examined and one document was exhibited. On behalf of the defendant, three witnesses were examined and no documentary evidence was adduced. 5. After conclusion of the trial, the learned Trial Court decreed the suit in favour of plaintiff. 6. Aggrieved by the judgment and decree dated 01.11.2007, the defendant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court too vide judgment dated 07.02.2014 rejected the appeal so preferred by the defendant-appellant and affirmed the judgment and decree dated 01.11.2007 passed by the learned Trial Court. 7. Challenging the aforesaid judgment and decrees, learned counsel appearing for the defendant-appellant submits that the learned Courts below have committed material illegality while granting decree of permanent injunction in absence of any claim for relief of possession. It is submitted that even PW-2 has admitted that the defendant-appellant is in possession of the disputed house and the disputed public way. Learned counsel submits that learned Courts below have completely ignored the admission made by the witness PW-2. Further, when the plaintiff was not in the possession of the disputed house, the learned Courts below have committed illegality while granting decree of injunction in favour of the plaintiffs. It is further submitted that there is no evidence available on record to show that the defendant has stalled/caused obstruction in the disputed public way. Learned counsel submits that the learned Courts below have committed error while granting the reliefs, which were never even prayed by the plaintiffs, therefore, it is submitted that while admitting the present appeal, the proposed substantial questions of law may be framed. 8. Heard learned counsel for the appellant and perused the material available on record and also perused the impugned judgment and decree passed by the learned Courts below. 9. Both the Courts below, after appreciating the evidence have passed the impugned judgment and decree. It is a settled legal position that evidence cannot be reappreciated in a second appeal. In this respect, a co-ordinate bench of this Court in Surendra Kumar Jaggi v. Ahmed Farooq and Ors. (S.B. Civil Second Appeal No. 01/2011), decided on 23.08.2012, has held that: "14. It is a settled legal position that evidence cannot be reappreciated in a second appeal. In this respect, a co-ordinate bench of this Court in Surendra Kumar Jaggi v. Ahmed Farooq and Ors. (S.B. Civil Second Appeal No. 01/2011), decided on 23.08.2012, has held that: "14. It is well settled that evidence on record cannot be reappreciated in second appeal under section 100 CPC like it could be done in first appeal under section 96 CPC and such second appeal would lie only if substantial question of law, as defined in various case laws, arises in the matter. Nothing of this sort is found in the present case." 10. Further, both the learned Courts below have arrived at concurrent findings. There is no material available on record to suggest that the learned Courts below have not appreciated the evidence in its right perspective or have applied the law erroneously. The judgments rendered by the learned Courts below are well reasoned and thus, there are no sufficient reasons to interfere with the same. In Boodireddy Chandraiah and Ors. v. Arigela Laxmi and Ors. reported in AIR 2008 SC 380 , Hon'ble Supreme Court in para 13 has held that: "13. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 11. Further, in Santosh Hazari v. Purushottam Tiwari (Dead) by L.Rs. reported in AIR 2001 SC 965 , Hon'ble Supreme Court, in para 12 has held as under: "12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. reported in AIR 2001 SC 965 , Hon'ble Supreme Court, in para 12 has held as under: "12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. v. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase 'substantial question of law' as it was employed in the last clause of the then existing section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. ..." 12. Thus, both the Courts below after assessing the evidence oral as well as documentary have reached to the conclusion that the defendants are obstructing the public way which leads to the house of plaintiff. This Court finds no infirmity in the decision passed by the learned trial Court as well as the learned First Appellate Court. There is no substantial question of law involved in the present second appeal. 13. Consequently, the appeal preferred by the appellant is hereby dismissed. 14. No order as to costs.