Kuldeep, aged 62 years, S/o Late Sh. Duni Chand, S/o Beli Ram Vs Raghvir Singh S/o Late Sh. Duni Chand, S/o Beli Ram

Whether approved for reporting?¹ For the appellant : Mr. Rupesh Kumar, Advocate, vice Mr. Ramakant Sharma, Advocate. For the respondents : Mr. Vivek Thakur, Advocate.

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Romesh Verma, Judge (Oral):

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The present appeal arises out of the judgment and decree, dated 29.04.2022 as passed by the learned Additional District Judge, Hamirpur, H.P. in Civil Appeal No. 31 of 2019, whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree dated 12.03.2019, as passed by the learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in Civil Suit No. 160 of 2013, titled as Raghubir Singh vs. Kuldeep, have been affirmed, whereby the suit filed by the plaintiff/respondent for permanent prohibitory and mandatory injunction was decreed. 2. Brief facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendant through his agents, servants or family members from blocking the path by way of

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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fencing, digging the suit land comprised in Khasra No. 942/112 situated in Tika Saloh, Mouza Hathol, Tehsil Nadaun, District Hamirpur, H.P. In alternative, the plaintiff sought decree for possession in case the defendant succeeded in raising forcible construction over the suit land during the pendency of the suit. It was averred in the plaint that the plaintiff is the owner in possession of the suit land bearing Khasra No. 942/112 measuring 0-05-96 hectares and that the defendant has got no right, title or interest over the suit land and defendant is a stranger and he has no concern with the same. It was further averred that, with an intent to encroach the suit land, the defendant started raising illegal construction, including pillars, chhajja and a water tank without any right, title or interest over the same. Despite repeated requests by the plaintiff not to interfere, the defendant did not desist. Therefore, under such circumstances, the suit was filed by the plaintiff seeking decree for permanent prohibitory injunction restraining the defendant from raising any sort of construction or blocking path by way of fencing, digging suit land over Khasra No. 942/112.

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The suit was contested by the defendant by filing a written statement and taking therein preliminary objections regarding maintainability, estoppel and special cost etc. On merits, it was admitted that he has got no concern in the suit land, However, the averments and the allegations as levelled in the plaint were refuted

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and denied in toto. It was stated that the defendant is not interfering in the suit land in any manner nor any construction had been raised over the suit land.

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The plaintiff filed replication reiterating the averments as made in the plaint.

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On the pleadings of the parties, the learned trial court on 21.08.2014 framed the following issues:-

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“1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for ? OPP

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Whether, in the alternative, the plaintiff is entitled for decree for possession, as prayed for ? OPP

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Whether the suit is not maintainable, as alleged ? OPD 4. Whether the plaintiff has no cause of action to file this suit, as alleged ? OPD

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Whether the plaintiff is estopped from filing the present suit by his act and conduct, as alleged ? OPD

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Whether the plaintiff has not come to court with clean hands, if so its effect, as alleged ? OPD.

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Whether the defendant is entitled for special costs under Section 35-A of CPC, as alleged ? OPD

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Relief.”

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The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 12.03.2019 decreed the suit of the plaintiff and defendant was restrained from causing any sort of interference over the suit land in future and further directed him to handover the vacant

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possession of the encroached portion of the suit land as depicted by Khasra No. 942/112/1, measuring 0-00-45 hectares in the shape of retaining wall, path, stacking boulder and cultivation as shown in the Naksha Tawafat attached with the Local Commissioner report within two months from the date of decree, failing which execution will follow against the defendant.

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Feeling dissatisfied by the judgment and decree, dated 12.03.2019, the defendant preferred an appeal before the learned First Appellate Court on 24.04.2019, which came to be dismissed vide judgment and decree dated 29.04.2022, whereby the learned Additional District Judge, Hamirpur, H.P. affirmed the findings as returned by learned trial Court.

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Still feeling aggrieved by the aforesaid judgments and decrees, the defendant has preferred the present regular second appeal.

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It is contended by Mr. Rupesh Kumar, Advocate, vice Mr. Ramakant Sharma, Advocate, for the appellant that judgments and decrees as passed by learned Courts below are erroneous and liable to be quashed and set-aside. He further submits that courts below have not taken into consideration the point in controversy and has relied upon inadmissible evidence as led by the plaintiff.

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On the other hand, Mr. Vivek Thakur, Advocate for the respondents has defended the judgments and decrees as passed by

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the learned courts below and has submitted that learned courts below on the basis of demarcation report has rightly come to the conclusion that the defendant had encroached upon the suit land and keeping in view the fact that there are concurrent findings of fact by the courts below, the same does not call for any interference by this Court.

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I have heard the learned counsel for the parties and have also gone through the material available on the case file. 12. With the consent of the parties, the case is finally heard at the admission stage. 13. The plaintiff approached the learned trial Court by filing a suit for permanent prohibitory injunction and in alternative for possession in case the defendant succeeded in raising any construction over the suit land during the pendency of the suit.

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In order to substantiate its case, the plaintiff himself entered into the witnesses box as PW-1 and stated that he is owner in possession of the the suit land comprised in Khasra No. 942/112 situated in Tika Saloh, Mouza Hathol, Tehsil Nadaun, District Hamirpur, H.P. He has stated that defendant is a stranger to the suit land and he started interfering over the suit land on 18.08.2013 without any right, title or interest. He started excavation, digging and construction over the suit land and when he was requested not to do so, he did not accede to the request as made by the plaintiff. He has further stated that during the pendency of the suit the defendant had

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raised construction of retaining wall and one room over the suit land. He prayed for passing a decree of possession in his favour.

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In the cross-examination as conducted by the defendant nothing material could be extracted by the defendant in his favour. 16. Plaintiff examined PW-2 Ms. Nisha Prashar, Advocate, in order to prove the report Ext. PW-2/A. PW-2 stated that she was appointed as Local commissioner and she had prepared report Ext. PW-2/A. As per report, the defendant has encroached the suit land. She stated that in Ext. PW-2/A the extent of encroachment was told to her by the Patwari who was assisting her during the demarcation.

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The defendant in order to prove its case entered into witness box and stated in his deposition Ext. DW-1/A that he has got no concern to the suit land and neither he has raised any construction nor has interfered in the suit land in any manner.

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Plaintiff in order to corroborate its case placed on record Ext. P1, the copy of Jamabandi for the year 2007-2008 of Mohal Saloh comprising of Khasra No. 942/112 which depicts the plaintiff to be the owner in possession of the suit land. The title of the plaintiff has not been disputed by the defendant rather he has admitted that he has no concern with the suit land. The presumption of truth is attached with the revenue record Ext. P1, which shows the plaintiff to be the owner in possession of the suit land.

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The point to be adjudicated before this Court is whether the defendant has encroached over the suit land as has been alleged by the plaintiff. The copy of the report of the Local commissioner dated 04.06.2015 has been exhibited as PW-2/A, which reveals that defendant has covered approximately eight meter land of the plaintiff in the shape of retaining wall and further it has been stated that the exact encroachment can be ascertained on the proper demarcation of the suit land. The second report of the Local Commissioner has been placed on record which is dated 11.05.2018. The perusal of the said report shows that as per the report of this Commissioner the defendant had encroached the suit land comprising Khasra No. 942/112/1 measuring 0-00-45 hectare. It has been stated in the report that the defendant has encroached the suit land by raising construction of a wall and by keeping the boulders of the stone over the suit land. The learned Courts below relying upon the report of the Local commissioner has rightly come to the conclusion that the defendant, is a stranger to the suit land, and he has got no concern, right, title or interest over the same. That he has encroached over the suit land. Therefore, a decree of injunction and vacant possession has been passed in favour of the plaintiff.

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The defendant did not take any steps to cross-examine the second Local Commissioner, namely, Sh. Dhyan Singh Kaushal, retired Naib Tehsildar in order to confront him to prove his case. The

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reports of the local commissioners clearly show that the defendant has been found to be in an unauthorized possession of the suit land, which is admittedly owned by the plaintiff. There are concurrent findings of fact by the courts below which do not call for any interference by this Court. Both the courts below have rightly appreciated the oral as well as documentary evidence placed on record and have rightly decreed the suit filed by the plaintiff.

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The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interference with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

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The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Civil Appeal Nos. 2843/2844/2010, titled Nazir Mohamed Vs. J. Kamala & ors decided on 27.08.2020, held that a second appeal only lies on a substantial question of law. It is not open to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to

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those cases, where a substantial question of law is involved. Relevant

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paras of the aforesaid judgment read as under:-

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“25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.

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26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.”

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A question of law must arise from the pleadings. It becomes substantial question of law, if it is debatable, not previously settled by law of land or any binding precedent, must have a material bearing on the decision of the case. A pure finding of fact is not open to challenge in second appeal even if appreciation of evidence is palpably erroneous & finding of fact incorrect.

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“29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1 , where this Court held:-

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

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30. In Hero Vinoth v. Seshammal 2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. 31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-

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“21. The phrase ”substantial question of law”, as occurring in the amended Section 100 CPC 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 v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (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. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) “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 views, 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

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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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32. To be “substantial”, a question of law must be debatable,not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.

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33. To be a question of law “involved 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 Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

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34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami.

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35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari .

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36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam .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.

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37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :

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(I) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

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(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

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(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to 14 such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

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(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised 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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

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24. In Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC

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545, the Hon’ble Supreme Court has held as under:

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“18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force

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at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "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 23 determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

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20. to 22 xx xx xx xx

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23. 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, insofar as

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the rights of the parties before it are concerned. To be a question of law "involving in the 24 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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All the aspects raised in the instant Second Appeal are purely factual. No question of law much less the substantial question of law is involved in the present appeal. Learned counsel for the appellant/defendant has failed to demonstrate any perversity in the impugned judgments and decrees, therefore, the present appeal being devoid of any merit, deserves to be dismissed. Ordered accordingly.

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Pending miscellaneous application (s), if any, shall also stand disposed off.

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(Romesh Verma)

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Judge

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April 1, 2026. (Nisha)

Kuldeep, aged 62 years, S/o Late Sh. Duni Chand, S/o Beli Ram v. Raghvir Singh S/o Late Sh. Duni Chand, S/o Beli Ram

Case brief

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Kuldeep, aged 62 years, S/o Late Sh. Duni Chand, S/o Beli Ram v. Raghvir Singh S/o Late Sh. Duni Chand, S/o Beli Ram

Case brief

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What the court decided

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