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2024 DIGILAW 53 (RAJ)

Indermal, S/o. Shri Kishan Lal Jamad v. Ganesh Lal, S/o. Govind Lal Parik, (Deceased)

2024-01-09

MADAN GOPAL VYAS

body2024
JUDGMENT : The present civil second appeal under Section 100 CPC has been filed against the judgment passed by the learned Additional District Judge No. 1, Chittorgarh (hereinafter referred to as the learned Appellate Court) in Civil Appeal No. 66/2003 whereby the judgment and decree passed by the learned Additional Civil Judge (Senior Division) No. 2 Chittorgarh (hereinafter referred to as the learned Trial Court) in Civil Original Suit No. 220/2000 was confirmed. 2. The facts in nutshell giving rise to the present second appeal are that a suit for permanent injunction was instituted by the plaintiff-appellant on 13.04.1994 with averments that the appellant has a house situated in village Narela. It was averred that the defendents-respondents were raising construction on the western side of appellant’s house and had also encroached upon the eastern side of the house and had started digging the land. Learned Trial Court dismissed the suit of the appellant. Being aggrieved by the judgment of the learned Trial court, the appellant preferred an appeal which also came to be dismissed by the learned Appellate Court. Being aggrieved by the decision of the learned Appellate Court, the appellant has preferred the present second appeal. 3. Learned counsel for the appellant submitted that the findings given by the learned Trial Court as well as the learned Appellate Court are wrong and contrary to the material available on record. It is submitted that the defendants have not produced any patta/title deed in their favor to showcase that they were in possession of the land on which construction was being made. It is further submitted that the evidence has not been examined in proper perspective. It is submitted that the defendants have not been examined on oath. Thus, it is prayed that the decisions rendered by the learned Trial Court and learned Appellate Court be quashed and set aside. 4. Heard learned counsel for the appellant. Perused the material available on record. 5. Existence of substantial question of law is a sine-qua-non for maintainability of second appeal. At the stage of admission of the present appeal, the question that needs to be determined is that whether a substantial question of law is involved in the present second appeal or not. 6. While deciding the suit, learned Trial Court framed 3 issues. 5. Existence of substantial question of law is a sine-qua-non for maintainability of second appeal. At the stage of admission of the present appeal, the question that needs to be determined is that whether a substantial question of law is involved in the present second appeal or not. 6. While deciding the suit, learned Trial Court framed 3 issues. In favor of plaintiff, PW1-Indermal, PW2-Lakshman Singh and PW3-Mohan Singh were examined and Exhibit 1A, 2, 3 and 4 were produced in documentary evidence. In favor of defendents, DW1- Satyanarayan, DW2-Lalu Bharti and DW3- Narayanlal were examined and Exhibit A1 to A4 were produced in documentary evidence. Learned Trial Court as well as learned First Appellate Court, after examining the evidence available on record, decided both the issues against the appellant-plaintiff and dismissed the suit and the appeal. It was held by both the Courts that the appellant-plaintiff failed to prove his right, title or interest over the land in question and it was also held that the respondent-defendant did not raise any construction on the appellant-plaintiff’s side of property. 6. Exhibit-3 is the report of Commissioner and Exhibit-4 is the Nazri Naksha, from which it is clear that the respondents have initiated the construction work in their portion of land. Both Exhibit 3 and Exhibit 4 are signed by the appellant-plaintiff. From a perusal of plaint, in para no. 1 of the plaint, the neighborhood of the disputed premises has been mentioned. However, no dimensions of the property have been indicated. Suffice it to say that the burden of proving the dimensions of appellant-plaintiff’s land lies on the plaintiff. There is no evidence available on record to suggest that the land on which construction was done by the respondent-defendant belonged to the appellant-plaintiff. Thus, the findings arrived at by the learned Courts below that the plaintiff has failed to prove his right, title or interest over the property are correct and suffer from no infirmity or illegality. 7. It is a settled law that evidence on record cannot be re-appreciated in a second appeal as it can be done in a first appeal. Both the learned Courts have recorded concurrent findings which are based on sound appreciation of evidence. In Surendra Kumar Jaggi v. Ahmed Farooq and Ors. (S.B. Civil Second Appeal No. 01/2011), decided on 23.08.2012, has in para 14 held that: "14. Both the learned Courts have recorded concurrent findings which are based on sound appreciation of evidence. In Surendra Kumar Jaggi v. Ahmed Farooq and Ors. (S.B. Civil Second Appeal No. 01/2011), decided on 23.08.2012, has in para 14 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." 8. Further, there is no reason to say that the learned Courts, while arriving at their conclusions, have misconstrued the material evidence or have acted in disregard to the established principles of law. It is a trite law that normally, in second appeal, concurrent findings of fact is not to be disturbed unless a substantial question of law is involved in the appeal. In Boodireddy Chandraiah and Ors. Versus 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." 9. There is nothing on record that suggests that the courts below have ignored material evidence or have acted on no evidence or that they have drawn wrong inferences from proved facts by applying the law erroneously or that they have wrongly cast the burden of proof. 10. Further, in Santosh Hazari Versus Purushottam Tiwari (Dead) by L.Rs. reported in AIR 2001 SC 965 , Hon’ble Supreme Court has held that: "12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. 10. Further, in Santosh Hazari Versus Purushottam Tiwari (Dead) by L.Rs. reported in AIR 2001 SC 965 , Hon’ble Supreme Court has held that: "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. Vs. 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. ..." 11. Thus, in the totality of facts and circumstances of the case, no substantial question of law is involved in the present appeal. 12. Consequently, the present appeal is rejected. The judgment dated 31.03.2014 passed by the learned First Appellate Court in Civil Appeal No. 66/2003 and judgment and decree dated 26.07.2003 passed by the learned Trial Court in Civil Original Suit No. 220/2000 are affirmed. 13. No order as to costs.