On a second appeal, the Bench found no substantial question of law arising from concurrent findings of fact based on proper appreciation of evidence by courts below, hence the appeal was not entertained and was ultimately dismissed as it failed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 190/2016
Bardi Chand S/o Shri Amba Lal Ji Mochi, aged 60 years, by caste Mochi, Proprietor M/s. Champa Plastic Industries, Manpura, Chittorgarh.
----Appellant
Versus
----Respondent
For Appellant(s) : Mr. Nitin Trivedi.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
06/09/2018
Appellant-plaintiff has preferred this second appeal to challenge concurring finding of both the Courts below.
Facts, in brief are that appellant-plaintiff filed a suit for injunction seeking perpetual injunction against Rajasthan Financial Corporation not to take possession of the suit property. Learned trial Court on the basis of pleadings of rival parties settled the issues and thereafter recorded evidence of the rival parties. Finally, the learned trial Court, by its judgment and decree dated 23rd August, 2005, dismissed the suit.
Feeling aggrieved by the same, appellant preferred appeal before District Judge, Chittorgarh, which was subsequently
(2 of 2)
[CSA-190/2016]
transferred to Addl. District Judge No.3, Chittorgarh (for short, ‘learned appellate Court’). The learned appellate Court, by its judgment dated 24th of May, 2016, affirmed the judgment of learned trial Court by dismissing the appeal.
I have heard learned counsel for the appellant, perused impugned judgments and also examined entire record of the case. It is not in dispute that both the courts below have recorded a concurrent finding of fact unfavourable to the appellant upon appreciation of evidence and second appeal can only be entertained when there is substantial question of law involved in the matter. While, it is true that if the finding is not based on the evidence or if it is founded on misconstruction of law, this Court can settle substantial question of law for adjudication.
Upon examining the matter in its entirety, I am unable to find any question of law much less substantial question of law in the instant appeal. Law is trite that for entertaining second appeal, availability of substantial question of law is sine-qua-non. As there is concurrent finding of fact based on proper appreciation of evidence and no substantial question of law is forthcoming in the matter, I feel disinclined to entertain this appeal.
Consequently, this second appeal fails and same is, hereby, rejected.
a.asopa/-
2 issues framed by the court
Whether the Special Bench can ascertain a substantial question of law on second appeal when the courts below have recorded concurrent findings of fact based on proper appreciation of evidence without
Whether the order of the appellate court dismissing the special civil appeal is lawfully passed.
Bardi Chand S/o Shri Amba Lal Ji Mochi
The Chief Manager, Rajasthan Financial Corporation
The Branch Manager, Rajasthan Financial Corporation, Chittorgarh
Ram Niwas S/o Shri Mool Chand Toshaniwal
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
