Manharan Sahu Vs Dulorin Bai

By the present appeal under Section 100 of the CPC, the appellant/plaintiff challenging the impugned judgment and decree dated 07.08.2015 passed by the 1st Additional District Judge, Bilaspur in Civil Appeal No.31A/2014 (Manharan Sahu Vs. Smt. Dasoda Bai and Ors.) arising out of the judgment dated 17.12.2009 passed by the Civil Judge, Class-II, Bilha, District

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Bilaspur in Civil Suit No.101-A/2008 ( Manharan Sahu Vs. Smt. Dasoda Bai and Ors.). For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

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The appellant/plaintiff instituted a civil suit seeking declaration of ownership and permanent injunction in respect of the land situated at Village Mudhipar, Patwari Halka No. 22, Tahsil and District Bilaspur, bearing Khasra Nos. 532 and 544/1, admeasuring 0.76 acre and 0.45 acre respectively, total admeasuring 1.21 acres (hereinafter referred to as “the suit land”), against respondent/defendant Nos. 1 and 2. The case of the plaintiff was that he is the owner and in possession of the suit land. It was pleaded that his father, Pusauram Sahu, an employee of the Indian Railways, died in a road accident and that the plaintiff performed the last rites and funeral ceremonies. Respondent No. 1 is the second wife of the deceased and respondent No. 2 is his daughter. According to the plaintiff, an oral partition had taken place long back in presence of respectable persons of Village Mudhipar, wherein it was agreed that respondent Nos. 1 and 2 would receive the entire service and terminal benefits of the deceased from the Railways, out of which land would be purchased and a house constructed at Village Podhi, and that the suit land would exclusively belong to the plaintiff, with respondent Nos. 1 and 2 having no right or interest therein. It was further pleaded that in pursuance of the said oral partition, the plaintiff had been in exclusive ownership and possession of the suit land for the last

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several years and that respondent Nos. 1 and 2 were attempting to claim a share in the suit land without any right or title.

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Respondent Nos. 1 and 2 filed their written statement denying the alleged oral partition and asserting that they had performed the last rites of the deceased and borne all related expenses. They further contended that no partition, oral or written, ever took place and alleged that the plaintiff was attempting to forcibly dispossess them.

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Upon appreciation of the pleadings and evidence on record, the learned Trial Court dismissed the suit vide judgment and decree dated 17.12.2009. Being aggrieved, the plaintiff preferred Civil Appeal No. 31A/2014 before the First Appellate Court, which, by judgment and decree dated 07.08.2015, partly allowed by holding that the plaintiff was entitled to 1/3rd share in the suit land and further restrained respondent No.2 from interfering with the possession of the plaintiff by granting a decree of permanent injunction. Aggrieved by the judgment and decree passed by the First Appellate Court, the present Second Appeal has been filed.

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I have heard learned counsel for the parties, perused the material available on record.

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The scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely limited. Interference is permissible only when the appeal involves a substantial question of law. Findings of fact recorded by both the Courts cannot be

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interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law.

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In the present case, both the Trial Court and the First Appellate Court have recorded findings, on the basis of evidence available on record, that the appellants/defendants failed to establish their case by placing cogent and sufficient material. The appellants have failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded.

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The questions sought to be raised in the present Second Appeal essentially relate to re-appreciation of evidence and challenge to findings of fact. Such questions do not give rise to any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure.

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Be that as it may, the argument advanced by learned counsel for the appellants and the proposed question of law cannot be regarded as satisfying the test of being ‘substantial question of law’ within the meaning of Section 100 of CPC. These questions, in my view, are essentially question of facts. The appellants failed to raise any substantial question of law which is required under Section 100 of the CPC. In any event, the Second Appeal did not involve any substantial question of law as contemplated under Section 100 of the CPC, no case is made out by the appellants herein. The judgments impugned passed by the learned trial Court as well as by the learned First appellate Court are just and proper and there is no illegality and infirmity at all.

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Accordingly, the present appeal is liable to be and is hereby dismissed at the motion stage itself.

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SD/(Bibhu Datta Guru)

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Judge Jyoti

Manharan Sahu v. Dulorin Bai

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Manharan Sahu v. Dulorin Bai

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