Dismissed

Kamlesh and Ors. v. Balveer Singh

Rajasthan HC3 Nov 2022CSA/13/2018

Case brief

AI extract

What is this about?

This second appeal under Section 100 CPC was preferred against a trial court and first appellate court decree in a civil suit for permanent injunction regarding land possession. The High Court held that the first appellate court's findings of fact on possession were based on evidence and not perverse, and no substantial question of law arose. Accordingly, the appeal was dismissed as devoid of meri

What did the court decide?

No substantial question of law found; the second appeal is dismissed. All pending applications are disposed of.

Kamlesh and Ors. Vs Balveer Singh — Property and Title | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No.13/2018

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Kamlesh W/o Jeetendra D/o Deviram, R/o Bhuriya Ki Ghadi, Distt. Agra Up

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Vimlesh W/o Kedar Singh D/o Late. Deviram, R/o Hatheni Ka Nagala, Tehsil And Distt. Bharatpur Raj

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Bala W/o Laguriya D/o Late Deviram, R/o Hatheni Ka Nagala, Tehsil And Distt Bharatpur Raj

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Bhuri W/o Naresh D/o Late Deviram, R/o Hardaya, Tehsil Kiravali, Distt. Agra Up

¶7

Santosh W/o Man Singh D/o Late Deviram, R/o Hardaya, Tehsil Kiravali, Distt. Agra Up

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----Appellants

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Versus

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Balveer Singh S/o Pyare, R/o Sabora, Teh. Kumher, Distt. Bharatpur

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----Respondent

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For Appellant(s) : Mr. Raj Kumar Sharma for Mr. Arvind Sharma For Respondent(s) :

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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03/11/2022

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The instant second appeal has been preferred under Section 100 CPC by appellants-plaintiffs assailing the judgment and decree dated 05.10.2017 passed in Civil Appeal No.75/2011 by the Court of Additional District Judge No.1 Bharatpur whereby the appeal filed by respondent-defendant has been allowed and the judgment and decree dated 08.09.2011 passed in Civil Suit No.57/2011 filed by appellants-plaintiffs for permanent injunction in respect of claiming his possession over the part of land of

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(2 of 4)

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[CSA-13/2018]

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Khasra No.1820/0.13 hectare at Village Sabora Tehsil Kumher District Bharatpur, was set aside.

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Heard counsel for appellants and perused the impugned judgments. 3. It appears that first appellate court has clearly recorded a finding that plaintiffs are not in possession and the land of Khasra No.1820 is recorded in the name of defendant (Ex.A/2, Zamabandi of revenue record is available on record).

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The first appellate court has also observed that the document of map (Ex.A1) also shows that the suit property is in possession of defendant and the learned trial court misreading this document and committed error of fact and law in decreeing the plaintiffs’ suit.

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The instant second appeal was filed on 04.01.2018. Perusal of previous order-sheets show that from the side of appellantsplaintiffs, the appeal was not persuaded.

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Even otherwise, Hon’ble the Supreme Court in case of

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Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999)

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3 SCC 722] has held as under:-

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“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 two inferences are possible. one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the first appellate Court unless it is found that the conclusions drawn by the lower

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(3 of 4)

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[CSA-13/2018]

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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 arriaved at without evidence.”

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The aforesaid judgment has been affirmed and relied upon by the Supreme Court in another judgment of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641].

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In a recent judgment of Murthy & Ors. Vs. C. Saradambal & Ors. [(2022) 3 SCC 209] , the Hon'ble Supreme Court while examining the powers of the first Appellate Court to interfere with findings of the trial Court and to reverse findings of the trial Court has placed reliance upon a celebrated judgment in case of Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179] has held as under:-

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"61. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari V. Purushottam Tiwari, wherein it has been observed that while writing a judgment of reversal, an appellate court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the trial court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the findings of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the trial court should not be interfered with lightly on a question of fact. Secondly, while reversing a findings of facat, it is necessary that the appellate court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Civil Procedure Code, 1908, as the first appellate court is the final court of facts and the said findings are immune from challenge in a second appeal."

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(4 of 4)

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[CSA-13/2018]

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Applying the aforesaid proposition of law on the case at hand, it is clear that fact findings either recorded by two Courts below or recorded by the first Appellate Court, if based on appreciation of evidence not to be interfered with by the High Court while exercising its jurisdiction under Section 100 of CPC unless the same is not perverse or otherwise against settled proposition of law. Counsel for appellants could not point out that the findings of first appellate court suffer from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal. Substantial question of law is sine qua non for exercising the jurisdiction under Section 100 CPC and to entertain the second appeal. Hence, the second appeal is found to be devoid of merits and the same is dismissed.

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All pending application(s),if any, stand(s) disposed of.

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(SUDESH BANSAL),J

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SAURABH/87

Kamlesh and Ors. v. Balveer Singh

Case brief

What is this about?

What did the court decide?

Kamlesh and Ors. v. Balveer Singh

Case brief

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