Manoj Kumar and Another Vs Hoshiar Singh and Others

. The present Regular Second Appeal arises out of the judgment and decree as passed by the learned Additional District Judge-1, Kangra at Dharamshala, H.P. dated 22.8.2024, whereby the appeal preferred by the present appellants has been ordered to be dismissed and the judgment and decree as passed by the learned Senior Civil Judge, (1), Kangra, District Kangra, H.P. dated 14.01.2020 has been affirmed.

¶13

The brief facts of the case are that the present appellants/plaintiffs had filed a suit for declaration and

¶14

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

¶15

2 ( 2026:HHC:11105 )

¶16

permanent prohibitory injunction in the Court of learned Senior Civil Judge(1), Kangra, H.P. on 29.01.2014.

¶17

It was averred in the plaint that as per the record contained in the revenue papers, the suit land is entered in the ownership of the defendants alongwith Smt. Krishana Devi and others after having inherited the same from late Sh. Gujjar Mal. It is the case of the plaintiffs that late Chandu Lal was adopted and taken by late Sh. Gujjar Mal as his son and therefore, out of love and affection, Sh. Gujjar Mal gave land measuring measuring 5 marlas to Chandu Lal vide writing dated 21.11.1966. Pursuant to the writing dated 21.11.1966, late Chandu Lal constructed a house and courtyard over the same and thereafter the plaintiffs are residing over the said suit land till date. It has been averred in the plaint that the aforesaid writing dated 21.11.1966 could not be incorporated in the revenue papers and taking undue advantage of the same, the defendants are threatening to raise construction over the suit land and for that purpose they have started to collect the construction material.

¶18

The suit of the plaintiffs was contested by the present respondents/defendants by taking various

¶19

3 ( 2026:HHC:11105 )

¶20

preliminary objections with regard to maintainability, cause of action, locus standi , non-joinder of necessary parties etc. On merits, all the avermets and contentions as raised in the plaint were refuted and it was specifically denied that Chandu Lal was adopted by late Sh. Gujjar Mal and further it was denied that the land measuring 5 marlas was given to Chandu Lal by Gujjar Mal vide writing dated 21.11.1966, as alleged. It was stated by the defendants that the said alleged writing is false, fabricated and not binding on the rights of the defendants. Further it was claimed by the defendants that the suit land is abadi land and the same is in exclusive ownership of the defendants which they have inherited from their father late Sh. Gujjar Mal. That as per revenue record i.e jamabndi for the years 1963-64 and 1968-69, late Sh. Gujjar Mal was shown to be in ownership and possession of the land measuring 5 marlas which was gair mumkin abadi, therefore, he had no other land which could have been gifted to the plaintiffs.

¶21

The plaintiffs did not file any replication to the written statement filed by the defendants. The learned trial Court framed the issues on 22. 08.2014 in the following manner:

¶22

4 ( 2026:HHC:11105 )

¶23

Whether paintiff is entitled for the relief of declaration as prayed for?OPP.

¶24

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

¶25

Whether suit is not maintainable in the present form, as alleged?OPD.

¶26

Whether plaintiff has got no cause of action and locus standi to file the present suit, as prayed for?OPD.

¶27

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

¶28

Whether suit is bad for non-joinder and mis-joinder of necessary parties, as prayed for? OPD.

¶29

Whether suit is not properly valued for the purpose of court fee and jurisdiction, as alleged?OPD.

¶30

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

¶31

Whether the present suit is hopelessly time bared, as alleged? OPD 10.Relief?

¶32

The learned trial Court directed the respective

¶33

parties to adduce evidence in support of their contentions and finally vide its judgment and decree dated 14.01.2020, the suit filed by the plaintiffs/appellants for declaration and permanent prohibitory injunction was ordered to be dismissed.

¶34

Feeling dissatisfied, the plaintiffs/appellants preferred an appeal in the Court of learned Additional

¶35

5 ( 2026:HHC:11105 )

¶36

District Judge, Kangra, at Dharamshala on 31.03.2021. The learned First Appellate Court vide its judgment and decree dated 22.08.2024 dismissed the appeal preferred by the present appellants.

¶37

Still feeling aggrieved, the plaintiffs-appellants approached this Court by filing the present regular second appeal.

¶38

It is contended by the learned counsel for the appellants that the judgments and decrees as passed by the Courts below are not sustainable and liable to be quashed and set-aside in view of oral as well as documentary evidence placed on record. He further submits that the application which was filed by the plaintiffs/appellants before the First Appellate Court for the withdrawal of the suit was wrongly rejected by the First Appellate Court and the said application ought to have been allowed. He further submits that the judgments and decrees as passed by the Courts below are erroneous as the plaintiffs have been able to establish their case. Consequently, the suit ought to have been decreed.

¶39

On the other hand, Mr. Surinder Saklani, Advocate has defended the judgments and decrees as

¶40

6 ( 2026:HHC:11105 )

¶41

passed by the Courts below and he has submitted that there are concurrent findings of fact by the Courts below and no interference of any kind is required in the present proceedings. He further submits that the findings as returned by the Courts below are purely on the basis of the material placed on record by the respective parties and the Courts below have rightly appreciated the point in controversy and have rightly dismissed the suit filed by the plaintiffs and the said findings have been rightly affirmed by the First Appellate Court.

¶42

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

¶43

With the consent of the parties, the present appeal is finally heard at the admission stage.

¶44

The plaintiffs had filed the suit for declaration and permanent prohibitory injunction on the basis that their predecessor late Sh. Chandu Lal was the adopted son of late Sh. Gujjar Mal. Further it is a case of the plaintiffs that late Sh. Gujjar Mal out of love and affection gave 5 marlas of suit land to the predecessor in interest of the plaintiffs late Sh. Chandu Lal vide writing dated 21.11.1966. It has also been averred that mother of Chandu Lal had married to Sh.Gujjar

¶45

7 ( 2026:HHC:11105 )

¶46

Mal. It is contended by the learned counsel for the appellants that on the basis of the writing dated 21.11.1966, the plaintiffs are the owner in possession of the suit property and their predecessor had raised construction of the house, however, the said writing cannot be incorporated in the revenue record and taking undue advantage of the same, the defendants are threatening and interfering in the ownership and possession of the plaintiffs over the suit land. The said case of the plaintiffs has been duly refuted by the respondents. It is case of the defendants that neither late Sh. Chandu Lal was adopted by Sh. Gujjar Mal nor any land was given to the predecessor in interest of the plaintiffs and further it has been denied that any writing was executed between the parties on 21.11.1966.

¶47

In order to substantiate its case, the plaintiffs examined PW-1 Ram Saran. In its deposition, he has stated that Sh. Gujjar Mal was his relative and he got married to the mother of Chandu Lal. He further stated that Chandu Lal was child of second wife of Gujjar Mal. He stated that he was merely asked to put signatures on Ext.P1. However, the contents of the document were denied by PW-1.

¶48

8 ( 2026:HHC:11105 )

¶49

The plaintiff Manoj Kumar entered in the witness box as PW-2 and tendered his evidence by filing affidavit Ext.PW2/A. Interestingly, when the matter was fixed for his cross examination, he failed to appear in the witness box and finally the learned trial Court vide its order dated 10.03.2017, closed the evidence of the plaintiffs.

¶50

In order to corroborate its case, the defendants led evidence and DW-1 Hoshiar Singh entered in the witness box and he filed his affidavit Ext.DW1/A. He refuted the claim as put forth by the plaintiffs and he specifically denied that Sh.Chandu Lal used to live with Sh. Gujjar Mal and that he was maintained and brought up by Sh. Gujjar Mal. He denied the suggestion that suit land was given to Sh. Chandu Lal in the year 1966. He denied the suggestion that any structure was raised by the plaintiffs over the suit land.

¶51

The entire case of the plaintiffs hinges around the writing dated 21.11.1966 but the plaintiffs have miserably failed to prove the said writing. Though, in order to prove the said writing, the plaintiffs have examined one Ram Saran as PW-1, however, he has failed to prove the said document in accordance with the law. The writing

¶52

9 ( 2026:HHC:11105 )

¶53

dated 21.11.1966 Ext.P1 is in urdu and the hindi translation of the same has been filed. However, interestingly the person who translated the said urdu document has not been examined in order to prove the veracity of the said document. The description of the suit land has also not been mentioned in the said document which clinches the entire controversy and falsifies the case of the plaintiffs. The initial onus to prove the said writing dated 21.11.1966 is upon the plaintiff. However, they have failed to plead and prove the said document Ext.P1 in accordance with law. Therefore, the Courts below have rightly come to the conclusion that the plaintiffs have not been able to stand on their own legs and have rightly dismissed the suit filed by the plaintiffs and said findings have been affirmed by the First Appellate Court.

¶54

The submission of learned counsel for the appellants that the First Appellate Court has wrongly dismissed the application filed by the present appellants for the withdrawal of the suit under the provisions of Order 23 Rule 1 C.P.C is not sustainable.

¶55

The provisions of Order 23 Rule 1 C.P.C reads as follows: “Withdrawal of suit or abandonment of part of claim. —

¶56

10 ( 2026:HHC:11105 )

¶57

(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

¶58

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court”.

¶59

In the present case, the appellants/plaintiffs have failed to establish any formal defect in the suit which could have come to the aid of the plaintiffs for the withdrawal of the suit. In the present case after passing the decree by the learned trial Court, the appellants/plaintiffs filed the appeal and at the stage of the appeal, the application for the withdrawal of the suit has been filed. After the passing of the judgment and decree, the rights of the parties were crystallized by the learned trial Court, therefore, the application which was filed for the withdrawal of the suit has rightly been rejected by the First Appellate Court that too in the absence of any formal defect to have occurred in the said proceedings.

¶60

The Hon’ble Supreme Court in Executive Officer, Arthanareswarar Temple Vs. R. Sathyamoorthy and Others (1999)3 SCC 115, held as under:-

¶61

“14. It is true that in a large number of cases decided by the High Courts, it was held while

¶62

11 ( 2026:HHC:11105 )

¶63

dealing with applications under Order 23, Rule 1, CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such fndings by the trial court in favour of thei defendant would set nullified, such permission for withdrawal of the suit should not be granted, (See Thakur Singh v. A. Achuta Rao, Kedar Nath v. Chandra Kiran Vidydhar Dube v. HarcharaN Charles Sanuel Vs. Board of Trustees; Lala Chetram v. Krishnamoni, Jubedan Begum v. Sekhawat Ali Khan; Ram Dhan v. Jagat Prasad Sethi). In the present case, the learned Judge felt that no such finding in favour of the Commissioner was being nullified by the withdrawal of the OP at the stage of revision and therefore the withdrawal of OP was permissible”.

¶64

To the similar extent the The Hon’ble Supreme

¶65

Court in R. Rathinavel Chettiar and another Vs. V.

¶66

Sivaraman and others ( 1999) 4 SCC 89 has held that if a suit has already been decreed or, for that matter, dismissed and a decree has been passed determining the rights of the parties to the suit, which is under challenge in an appeal, can the decree be destroyed by making an application for dismissing the suit as not pressed or unconditionally

¶67

12 ( 2026:HHC:11105 )

¶68

withdrawing the suit at the appellate stage. In that back- ground, the Hon’ble Apex Court has held that what is essential is that the matter must have been finally decided so that it becomes conclusive between the parties. It is at this stage, that the rights of the parties are crystallized and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. The right of the plaintiff to withdraw the suit at the appellate stage is not an absolute right but it is subject to the rights acquired by the defendant under the decree. The withdrawal can be permitted only if no vested or substantive right of any party to the litigation is adversely affected.

¶69

In the present case, the learned trial court after appreciating the oral as well as documentary evidence placed on record, determined the rights of respective parties, therefore, in appeal the said rights cannot be taken away by filing the application for the withdrawal of the suit. Therefore, the dismissal of the application under the provisions of Order 23 Rule 1 C.P.C by the First Appellate Court cannot be interfered with.

¶70

13 ( 2026:HHC:11105 )

¶71

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.

¶72

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 re-analyze or reappreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to those cases, where a substantial question of law is involved. Relevant paras of the aforesaid judgment read as

¶73

under:-

¶74

“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

¶75

14 ( 2026:HHC:11105 )

¶76

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.

¶77

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.”

¶78

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.

¶79

“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:-

¶80

“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

¶81

15 ( 2026:HHC:11105 )

¶82

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.”

¶83

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.

¶84

31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-

¶85

“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

¶86

16 ( 2026:HHC:11105 )

¶87

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 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.”

¶88

17 ( 2026:HHC:11105 )

¶89

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.

¶90

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.

¶91

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.

¶92

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 .

¶93

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

¶94

18 ( 2026:HHC:11105 )

¶95

involved in the case, unless it goes to the root of the matter.

¶96

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

¶97

(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.

¶98

(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.

¶99

(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.

¶100

19 ( 2026:HHC:11105 )

¶101

(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.”

¶102

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

¶103

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

¶104

“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 at the relevant time. The conditions mentioned

¶105

20 ( 2026:HHC:11105 )

¶106

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."

¶107

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

¶108

21 ( 2026:HHC:11105 )

¶109

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.

¶110

20. to 22 xx xx xx xx

¶111

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 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.”

¶112

22 ( 2026:HHC:11105 )

¶113