The High Court dismissed a second appeal filed by an appellant against the dismissal of a suit for declaration and permanent injunction regarding a strip of land. The court held that no substantial question of law was involved.
Second appeal dismissed; record of courts below to be sent back forthwith.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Second Appeal No. 127/2017
Moolchand S/o Nathulal, R/o Jhalawar Rajasthan
----Appellant-Plaintiff
Versus
----Respondents-defendants
For Appellant(s) : Mr. Sanjay Mehrishi For Respondent(s) : None
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
02/11/2022
(2 of 4)
[CSA-127/2017]
and their access from the 30 feet wide road do not adversely affect in any manner by the allotment of the strip of land which is situated opposite side of the road of 30 feet. It has also come on record that strip of land was sold by way of public auction and objections were also invited. Plaintiff neither raised any objection nor made any efforts to purchase that strip of land. Plaintiff claimed his right to keep the strip of land open but has not been found established as his right to have access through 30 feet wide road is not affected by allotment of strip of land. Such fact findings are based on appreciation/ re-appreciation of entire evidence on record as much as any hardship, if any, cause to plaintiff has also been taken into consideration. Both Courts have dismissed plaintiff’s suit on findings that he cannot claim any right over the open piece of land, which is in ownership of Nagar Palika and has been allotted to respondent No.1 by way of auction.
SCC 179] the Supreme Court Court held as under:-
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 case" there 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
(3 of 4)
[CSA-127/2017]
matter. It will, therefore, depend on the facts and circumstances 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 judicios balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]”
(4 of 4)
[CSA-127/2017]
with such fact findings while exercising its jurisdiction under Section 100 CPC.
(SUDESH BANSAL),J
NITIN /5
1 issue framed by the court
Whether substantial question of law is involved in an appeal where fact findings are based on appreciation of evidence and not perversely recorded.
Colour shows how this judgement treated each authority
Santosh Hazari Vs. Purushottam TiwariReferred¶22
Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179] · Who else cites this
State of Rajasthan v. Shiv DayalExplained¶27
State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637] · Who else cites this
Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.Referred¶27
Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors. [AIR 1943 Nag 117] · Who else cites this
C. Doddanarayan Reddy vs. C. Jayarama ReddyExplained¶29
C. Doddanarayan Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659] · Who else cites this
1 provisions across 1 enactments
Moolchand S/o Nathulal
Smt. Krishna Sharma W/o Shri Jagdish Chand Hardaniya
Nagar Palika Jhalawar
Sudes B Bansal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
