Dismissed

Sushila v. Dhananjay Singh

Rajasthan HC3 Oct 2018CSA/181/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a second appeal challenging concurrent findings of fact below. The Court held that no substantial question of law arose as the findings were not perverse and the scope of review under Section 100 CPC does not permit re-appreciation of evidence unless findings are erroneous or based on no evidence.

What did the court decide?

The instant appeal was rejected summarily as it was bereft of merit and devoid of force.

Sushila Vs Dhananjay Singh — Property and Title | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Second Appeal No. 181/2018

¶3

Sushila W/o Shri Laxmi Lal Bhavsar, Aged About 67 Years, B/c Bhavsar, R/o 5/23, Khandu Colony, Banswara.

¶4

----Appellant

¶5

Versus

¶6

Dhananjay Singh S/o Shri Parvat Singh, B/c Rajput, R/o Suraj Pole, Banswara (Raj.)

¶7

Shailendra Kumar Singh S/o Shri Inder Kumar Singh, B/c Rajput, R/o Housing Board Colony, Banswara (Raj.)

¶8

----Respondents

¶9

For Appellant(s) : Mr. Arpit Bhoot

¶10

HON'BLE MR. JUSTICE P.K. LOHRA

¶11

JUDGMENT

¶12

03/10/2018

¶13

Unsuccessful to defend a suit for perpetual injunction of the respondent-plaintiffs, and failures in her attempt to secure favourable verdict from appellate Court, has prompted the appellant-defendant to prefer the instant second appeal.

¶14

The facts apposite for the purpose of this appeal are that respondent-plaintiffs instituted a civil suit for perpetual injunction against appellant before Civil Judge (Jr.Div.) Banswara (for short, ‘learned trial Court’) for restraining her from encroaching on urban land admeasuring 66+46/2 x 100 ft with total area of 5600 sqft situated at Shyampura-C, Banswara.

¶15

(2 of 8)

¶16

[CSA-181/2018]

¶17

As per the averments in the plaint, the land in question is jointly owned by both the respondent-plaintiffs as title thereof is acquired by them through a registered sale-deed dated 16^th of June 2007, executed by their predecessor-in-title Lalji S/o Devaji. It is also pleaded in the plaint that earlier land in question was part of agricultural land of Khasra No.114/2/1 & 114/2/2 Shyampura-C, Banswara, and subsequently it was converted into urban land. It is further pleaded in the plaint that appellantdefendant has clearly instructed masons to construct a boundary wall on her adjacent plot by encroaching upon the land jointly owned by them. As per version of the respondent-plaintiffs, appellant-defendant has no right to encroach over the land owned by them and further she is not entitled to raise any construction over it. With these facts, respondents have prayed for grant of perpetual injunction against the appellant not to encroach over the land owned by them and further not to raise any construction over it.

¶18

The suit filed by respondents was contested by appellant by filing written statement. In the written statement, appellant refuted all the averments.

¶19

Learned trial Court, on the basis of pleadings of rival parties, framed four issues for determination. The parties led their oral evidence and also submitted documentary evidence. After conclusion of the evidence of contesting party, the learned trial Court decreed the suit of respondent-plaintiffs by passing a perpetual injunction against appellant not to make any

¶20

(3 of 8)

¶21

[CSA-181/2018]

¶22

encroachment on the land owned by respondent-plaintiffs and also not to raise construction over it. While decreeing the suit of the respondent-plaintiffs, learned trial Court issued perpetual injunction against the appellant in following terms:

¶23

^^nkok oknh fo:) izfrokfn;k fMØh fd;k tkdj vkns”k fn;k tkrk gS fd izfrokfn;ka o oknhx.k ds LokfeRo o vkf/kiR; ds Hkw[k.M lkbZt lkbZt 66$46@2 ck; 100 QhV dqy {kS=Qy 5600 oxZQhV okds “;keiqjk&lh] ckalokM+k esa fLFkr gS tks fd Hkwfe vkjkth 114@2@1 o 114@2@2 jdck ,d ch?kk dk Hkkx gS] ij izfrokfn;k fdlh izdkj dk vfrØe.k ugha djsa o u gh fdlh izdkj dk fuekZ.k Lo;a vFkok vius fdlh izfrfuf/k ls djok;sA [kpkZ i{kdkjku viuk viuk ogu djsaxsA fu.kZ;kuqlkj fMØh ipkZ rS;kj fd;k tk;sA**

¶24

Being aggrieved by the judgment and decree of learned trial Court, appellant preferred appeal before District Judge, Banswara (for short, ‘learned first appellate Court’). The learned first appellate Court, after examining the matter afresh, in the light of evidence of rival parties, fully concurred with the findings and conclusions of learned trial Court. The learned first appellate Court also considered finding on all the issues threadbare and while recording its satisfaction about the findings and conclusions of the learned trial Court, dismissed the appeal.

¶25

Learned counsel for the appellant Mr. Arpit Bhoot has vehemently argued that both the Courts below have seriously erred in recording concurrent finding against the appellant. It is also submitted by learned counsel that the core issue, i.e. possession, has not been considered by both the Courts below, and therefore, even the concurrent finding of both the Courts

¶26

(4 of 8)

¶27

[CSA-181/2018]

¶28

below is perverse giving rise to a substantial question of law. Learned counsel has further submitted that learned trial Court has not settled proper issues for determination and this aspect was also not examined by learned first appellate Court, therefore, both the impugned judgments are per se vulnerable and furnish substantial questions of law requiring adjudication in second appeal. In support of his arguments, learned counsel for the appellant has placed reliance on following judgments:

¶29

(1) D.R. Rathna Murthy Vs. Ramappa [(2011) 1 SCC 158]

¶30

(2) Uma Pandey & Anr. Vs. Munna Pandey & Ors. [2018(2) WLC (SC) Civil 262].

¶31

I have bestowed my consideration to the arguments advanced by learned counsel for the appellant, perused the judgments of both the Courts below and also examined proposed substantial questions of law.

¶32

At the very outset, it may be observed that appellant has made an attempt in the instant appeal to challenge concurrent findings of fact recorded by both the Courts below.

¶33

Scope of review in second appeal with the concurrent findings of fact is very much limited and circumscribed. Interference with the concurrent finding is desirable where the Court comes to the conclusion that learned trial Court and/or first appellate Court misdirected themselves in appreciating question of law or recorded perverse finding based on misreading of evidence or no evidence. The legislature in its wisdom, after amendment

¶34

(5 of 8)

¶35

[CSA-181/2018]

¶36

in Section 104 of 1976 w.e.f. 01.02.1977 has made sincere endeavour to minimize litigation, ensure fair trial in accordance with accepted principles of natural justice, to expedite disposal of civil suits, introduced restriction on second appeals under the Code. Essentially, creation of powers or confining such power of the appellate authorities is founded on public policy enunciated in the maxim “ interest reipublicae ut sit finis litium” , which means, in the interest of society as a whole litigation must come to an end.

¶37

The CPC amending Act 1976 postulates with clarity and precision that High Court, while exercising jurisdiction under Section 100, must adhere to the procedure and conditions prescribed therein and not to add or enlarge the conditions of appeal. Therefore, the Court must satisfy itself that a substantial question of law is involved and then formulate the same on which the appeal can be heard. In abstract sense, it can very well be said that the Court, while hearing second appeal, cannot decide the same on merely equitable grounds. Legal precedents are also clear and unequivocal that concurrent findings of fact, however erroneous, cannot be disturbed under Section 100 CPC.

¶38

Although Law mandates stringent requirement for entertaining second appeal, i.e., involvement of substantial question of law in an appeal but under the Code the term “substantial question of law” is not defined. The Court feels that prefix “substantial” has qualified a question of law so as to construe the same meticulously relying on legislative intent.

¶39

(6 of 8)

¶40

[CSA-181/2018]

¶41

Thus, the term “substantial question of law” can be defined as a question having subsistence, essential, truly of sound worth, exigent or considerable. In other words, it is to be understood something very special in contradistinction with purely technical, of no substance or consequence or merely academic. Likewise, a point of law, which gives rise to two opinions, may be construed as a proposition of law but by no means a substantial question of law. It is clearly apparent that crucial finding on the issues recorded by them is based on some evidence. Simply because the findings according to the appellant is insufficient or inadequate, it is rather difficult to fathom concurrent finding perverse or based on misreading of evidence. It is trite that for exercise of jurisdiction under Section 100 CPC, re-assessment, reappreciation and making a roving inquiry by entering into factual arena is not contemplated.

¶42

In D.R. Rathna Murthy (supra), Supreme Court, while examining scope of judicial review in second appeal, has observed that finding of fact can be interfered with if it is found to be perverse, however, with a word of caution that re-appreciation of evidence is permissible in exceptional circumstances. The Court held:

¶43

Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v.

¶44

(7 of 8) [CSA-181/2018]

¶45

Mahadev Channabasappa , Hafazat Hussain v. Abdul Majeed and Bharatha Matha v. R. Vijaya Renganathan )

¶46

In the instant case, I am at loss to say that there is no perversity in concurrent finding of fact recorded by both the Courts below, and therefore, it would be inappropriate to reappreciate the evidence. Likewise, in the second judgment of the Supreme Court in Uma Pandey & Anr. (supra), the fact situation is entirely different. It was a case wherein the Court has found that interpretation of document is also a substantial question of law. Moreover, in that case, the Court has taken note of a very vital fact that the learned first appellate Court had reversed the judgment and decree passed by the learned trial Court. As such, the case was not of concurrent finding, and consequently cannot render any assistance to the appellant.

¶47

The unison findings of fact, recorded by both the Courts below, upon evaluation of evidence and other materials available on record, sufficiently demonstrate that afflictions of the appellants are wholly untenable. As a matter of fact, concurrent finding of fact recorded by both the Courts below is in consonance and in conformity with evidence and other materials available on record. Legal position is no more res integra that in exercise of powers under Section 100 CPC, it would be unwise and imprudent to enlarge the scope of judicial review so as to treat even an erroneous decision of a final Court of law and facts, i.e., first appellate Court, vulnerable. In other words, jurisdiction of this Court in second appeal is not available to correct the errors of law

¶48

(8 of 8)

¶49

[CSA-181/2018]

¶50

or erroneous findings recorded by first appellate Court vis-a-vis questions of law unless such question of law be a substantial one. Therefore, upon close scrutiny of the impugned concurring judgments, in my view, no substantial question of law is forthcoming requiring adjudication in this appeal.

¶51

Now adverting to the proposed substantial question of law, suffice it to observe that none of these questions can be construed as questions of law much less substantial question of law.

¶52

In view of foregoing discussion, the instant appeal is bereft of any merit and devoid of any force and therefore, same is hereby rejected summarily.

Sushila v. Dhananjay Singh

Case brief

What is this about?

What did the court decide?

Sushila v. Dhananjay Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Choru Lal Vs Murlidhar and Anr.

Durga Devi Vs Navratan Ram and Ors.

The Cotton Corporation of India Ltd. Vs Navin Oil and Ginning Factory

Gajendra Sankhla Vs State of Rajasthan and Ors.

Lrs of Bhadar Khan Vs Lrs of Sher Mohd and Ors.

Onkar Ram Vs Daula Ram