In a second appeal by legal heirs of Bhadar Khan challenging the dismissal of a suit for declaration and perpetual injunction, the High Court rejected the appeal. The court found no substantial question of law as lower courts had not committed manifest error in appreciating evidence.
The second appeal was rejected and dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 95/2018
Bhadar Khan Since expired S/o Shri Subhan Khan, By Caste Kumhar Musalman, R/o Sahwa, Tehsil Tara Nagar, District Churu, Through His Legal Representatives
By caste Kumhar Musalman, R/o Sahwa Tehsil Taranagar, District Churu.
1/7 Santo D/o Late Shri Bhadar Khan, w/o Najir Deen, r/o Gandhi Badi Tehsil Bhadar, District Hanumangarh
1/12 Akbar S/o Shri Gafur Khan, S/o Shri Bhadar Khan
By caste Musalman Kumhar, R/o Sahwa Tehsil Tarangar, District Churu, Rajasthan.
----Appellants
Versus
By caste Musalman Kumhar, R/o Sahwa Tehsil Taranagar
(2 of 4)
[CSA-95/2018]
1/8 Fama D/o Shri Sher Mohd w/o Basir Khan
By caste Musalman Kumhar, R/o Gandhi, Tehsil Bhadra, District Hanumagnarh.
R/o Ramgarh, Tehsil Bhadra, District Hanumangarh. 1/11 Suman Bano W/o Ilakat D/o Kama D/o Sher Mohd R/o Ward No.22 Bhadra District Hanumangarh
1/12 Madina Bano D/o Kama D/o Sher Mohd. R/o Ward No.22 Bhadra District Hanumangarh.
1/13 Salma Bano D/o Kama D/o Sher Mohd R/o Ward No.3 Jamal Post Chopra Tehsil and District Sirsa
By Caste Kumhar Musalman, R/o Sahwa Tehsil Taranagar, District Churu
----Respondents
For Appellant(s) : Mr. R.K. Charan
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
03/10/2018
Appellant-plaintiffs have preferred this second appeal under Section 100 CPC to assail judgment dated 17.03.2018 passed by Additional District and Sessions Judge, Rajgarh Camp Taranagar (for short, ‘learned first appellate Court’), whereby learned first appellate Court has affirmed judgment dated 07.12.2012 passed by Civil Judge (Junior Division), Taranagar (for short, ‘learned trial Court’).
The facts, in brief, are that a suit was originally filed before the learned trial Court for declaration, perpetual injunction and partition by Bhadar Khan, whose legal heirs are appellants in the
(3 of 4)
[CSA-95/2018]
instant appeal. Learned trial Court during pendency of the suit permitted the plaintiff to withdraw the relief of partition, and therefore, the suit remained confined to declaration and perpetual injunction. The rival parties led their evidence and the learned trial Court, upon consideration of evidence and other materials available on record, decided all the issues including issue of limitation against the plaintiff and that entailed dismissal of the suit. Feeling aggrieved by the same, appellants, being legal heirs of Bhadar Khan, approached the learned first appellate Court and the learned first appellate Court, after examining the evidence and other materials available on record, de novo fully concurred with the findings and conclusions of the learned trial Court and rejected the appeal.
I have heard learned counsel for the appellants, perused the impugned judgments.
It is not in dispute that second appeal can be entertained by this Court if the aggrieved party satisfies that there is substantial question of law involved in the matter. Normally, the concurrent finding of fact recorded by Courts below based on proper appreciation of evidence is not liable to be tinkered with.
Upon overall analysis of the judgments rendered by learned first appellate Court as well as learned trial Court, it is crystal clear that both the Courts below have made sincere endeavour in appreciation of evidence for arriving at a conclusion and, there is no perversity in the findings recorded by both the Courts below. While it is true that a concurrent finding of fact recorded by Courts below is not an absolute embargo for entertaining second appeal but then it is expected of the appellant to show that learned Courts below have committed manifest error in appreciation of
(4 of 4)
[CSA-95/2018]
evidence or have eschewed to consider relevant evidence. No ground as such is forthcoming and the proposed substantial questions of law are also not satisfying the requirement of substantial question of law, therefore, I feel disinclined to interfere in the matter.
Consequently, the appeal fails and the same is hereby rejected.
(P.K. LOHRA),J
Bharti/11
2 issues framed by the court
Whether the Second Appellant has made out a case for entertaining the second appeal under Section 100 CPC given the concurrent findings of fact by lower courts.
Whether the learned courts below committed manifest error in appreciation of evidence or eschewed to consider relevant evidence.
1 provisions across 1 enactments
Bhadar Khan Legal Representatives
Sher Mohd Legal Representatives
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
