Dismissed

The Gram Panchayat Kafnu v. Surender Negi

Himachal Pradesh HC5 Dec 2017RSA/363/2017

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Himachal Pradesh dismissed the appellant Gram Panchayat's challenge to the lower courts' decree in favor of the plaintiff. The Court held that the lower courts' findings regarding the tender dispute were pure findings of fact immune to challenge in a second appeal, and no substantial question of law arose. The appeal was thus dismissed.

What did the court decide?

Appeal dismissed; parties to bear their own costs; pending application disposed of.

The Gram Panchayat Kafnu Vs… — Contract and Commercial Disputes | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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R.S.A. No. 363 of 2017

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Decided on : 05.12.2017.

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The Gram Panchayat, Kafnoo …..Appellant/Defendant

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Versus

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Surender Negi ..Respondent/Plaintiff

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting ? No.

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For the Appellant : Mr. Pratap Singh Goverdhan, Advocate. For the Respondent : Mr. Suneet Goel, Advocate

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Tarlok Singh Chauhan, Judge. (Oral)

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The appellant, who is aggrieved by the judgments and decrees passed against it concurrently by the learned Courts below, has preferred the instant second appeal.

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The parties shall be referred to as the ‘plaintiff’ and the

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‘defendant’.

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The plaintiff filed a suit for recovery of `2,23,388/- on

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the ground that on 19.03.2011, the defendant issued public notice

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inviting tenders from the general public for auction of sand and aggregate from the banks of Bhaba Khad vide notice of auction dated 19.03.2011. The plaintiff like other bidders deposited the security amount of 1,000/- with the defendant. On 21.03.2011, the defendant conducted auction and his tender being highest was accepted. As per terms and conditions, the plaintiff deposited an amount of 1,60,000/- vide cheque No.676758 dated 21.03.2011. The plaintiff claims that despite request the defendant failed to execute the agreement. The defendant disclosed to the plaintiff that the dispute has arisen between the Gram Panchayat, Kafnoo and the Gram Panchayat, Yangpa with respect to their rights and the defendant assured him that after the resolution of the dispute, the aforementioned works will be awarded to him. But even thereafter, the defendant failed to award the aforementioned works to him. The plaintiff served a legal notice under Section 80 CPC upon District Collector, Kinnaur, Block Development Officer, Development Block, Nichar, but to no avail.

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The defendant contested the suit by filing written statement, wherein preliminary objections regarding maintainability, suppression of true facts, estoppel, limitation,

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valuation and cause of action were raised. On merits, the defendant admitted that it had issued public notice for inviting participants for auction of sand and aggregate and the auction was allowed to the plaintiff on 21.03.2011 and that the plaintiff had deposited `1,60,000/- through cheque with the defendant on 21.03.2011. The defendant has denied any dispute between the Gram Panchayat, Kafnoo and the Gram Panchayat, Yangpa. The defendant thus prayed for dismissal of the suit with costs.

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The plaintiff filed replication, wherein he re-asserted and reaffirmed the averments made in the plaint and denied all the contrary averments made in the written statement.

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On the pleadings of the parties, the learned Trial Court on

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02.01.2015 framed the following issues:

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Whether the plaintiff is entitled for the suit amount alongwith interest, as prayed? ….OPP

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Whether the suit is not maintainable? ….OPD

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Whether the plaintiff is estopped from filing the present suit by way of his act, conduct, omission, commission and acquiescences, as alleged?

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…….OPD.

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Whether the suit is time barred, as alleged? …..OPD

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Whether the plaintiff has no cause of action to file the present suit, as alleged? …OPD

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Whether the suit is bad for non-joinder of necessary

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parties, as alleged? …OPD

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Relief.

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After recording the evidence and evaluating the same,

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the learned Trial Court decreed the suit of the plaintiff for a sum of `1,60,000/- alongwith interest at the rate of 6% per annum with yearly rest from 21.03.2011 till its realization.

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Aggrieved by the judgment and decree passed by the learned Trial Court on 23.04.2016, the defendant/appellant preferred an appeal before the learned First Appellate Court, however, the same came to be dismissed vide judgment and decree passed to this effect on 18.05.2017. It is against the aforesaid judgments and decrees that the defendant/appellant has filed the instant appeal on the ground that judgments and decrees rendered by the Courts below are perverse and, therefore, deserves to be set-aside.

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I have heard learned counsel for the parties and gone through the records of the case carefully.

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In order to appreciate the contention of the defendant/ appellant, it is first necessary to understand as to what is perverse. The expression ‘perverse’ has repeatedly come up for consideration before the Hon’ble Supreme Court and reference of

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this Court can conveniently be made to certain recent decisions on the subject. In Arulvelu and another vs. State Represented

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by the Public Prosecutor and another (2009) 10 SCC 206,

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while considering the expression ‘perverse’ it was observed as

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under:-

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“ 26 . In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

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27 . The expression "perverse" has been defined by various dictionaries in the following manner:

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1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition

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PERVERSE:Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

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2. Longman Dictionary of Contemporary English - International Edition

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PERVERSE: Deliberately departing from what is normal and reasonable.

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3. The New Oxford Dictionary of English - 1998 Edition

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PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

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4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)

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PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

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5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition

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PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

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28 . In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8

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"8… We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."

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29 . In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing

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with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9- 10)

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" 9 . Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

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10 . A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

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30 . The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cumAssessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7)

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" 7 . In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of

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relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."

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What is ‘perverse’ has further been considered by

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this Court in RSA No.436 of 2000 , titled ‘Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others , decided on 28.05.2015 in the following manner:-

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“ 25 ….. A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.

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26 . If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.

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27 . If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.

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28 . Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated.”

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Thus, it can be taken to be settled that a judgment

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can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court’s entire approach with respect to dealing with the evidence

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or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is

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based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.

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Adverting to the facts, it would be noticed that subsequent claim of the plaintiff was that the defendant has not executed the agreement. It is not in dispute that the plaintiff was awarded tender in question and in response thereto had deposited 1,000/- as security amount and consequent there upon, the plaintiff had deposited a sum of 1,60,000/- by way of cheque. It has also come on record and so from the findings concurrently recorded by the Courts below. Even after accepting this amount, the defendant did not come forward to execute formal agreement containing terms and conditions thereof. Not only this, it has further been proved that it was the defendant alone, who was responsible for non-execution of the agreement.

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The plaintiff appeared as PW-1 and proved his case as pleaded in the suit in its entirety and such statement was duly supported by Smt. Sulochna, Secretary, Gram Panchayat, Kafnoo, who appeared as PW-2, who in her deposition clearly

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stated that as per cash book at page No.117 of Gram Panchayat, Kafnoo, an amount of `1,60,000/- was received by the Panchayat on 29.4.2011 vide cheque No.676758 and was credited in the Panchayat Saving Bank Account No.1729. This amount stands duly reflected in the cash book of the Panchayat.

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Even though the defendant while appearing as DW-1 had taken the plea that the plaintiff had carried sand and aggregate and distributed the same to his friends and relatives. However, there is no oral or documentary evidence led in support of such plea. Even before this Court, the appellant/defendant has not been able to point out any question of law muchless substantial question of law. Therefore, in the absence of there being any substantial question of law, obviously the judgments and decrees passed by the learned Courts below, cannot be faulted with.

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It is otherwise more than settled that the Appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam

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Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:

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“ 15 ……The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.”

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What would be the substantial question of law was

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thereafter considered in para 12 of the judgment, which reads

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thus:

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“ 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

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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. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-

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“When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”

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and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-

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“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably

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absurd the question would not be a substantial question of law.”

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Finally, in paragraph 14, the Hon’ble Supreme Court laid

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down the guidelines on the test of as to what is the substantial question of law, which reads thus:

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“ 14 . A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

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The findings recorded by the learned Courts below are

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based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal.

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No question of law much less substantial question of law

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arises for consideration in this appeal.

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Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

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December 05, 2017. (Tarlok Singh Chauhan) (rana) Judge

The Gram Panchayat Kafnu v. Surender Negi

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The Gram Panchayat Kafnu v. Surender Negi

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