Dismissed

Gajendra Singh S/O Daulat Singh Alias Devendra Singh v. Randheer Singh S/O Bhagwan Singh

Rajasthan HC29 May 2024/12/2024

Case brief

AI extract

What is this about?

The Appellant filed a civil second appeal against concurrent findings of fact dismissing a suit for mandatory and permanent injunction regarding land, on the ground that the civil court lacked jurisdiction under Section 207 of the Rajasthan Tenancy Act. The Court condoned delay and dismissed the appeal, holding that no substantial question of law arose as the lower courts' findings were based on e

What did the court decide?

None; Second Appeal dismissed.

Gajendra Singh S/O Daulat Singh Alias Devendra Singh Vs… — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JP:47985]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 12/2024

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Gajendra Singh S/o Daulat Singh Alias Devendra Singh, R/o Village Madhauni, Tehsil And Bharatpur (Raj.)

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----Appellant

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Versus

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Randheer Singh S/o Bhagwan Singh, R/o Village Madhauni, Tehsil And District Bharatpur (Raj.)

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Khem Singh S/o Bhagwan Singh, R/o Village Madhauni, Tehsil And District Bharatpur (Raj.)

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Rup Singh Alias Ruplla S/o Bhagwan Singh, R/o Village Madhauni, Tehsil And District Bharatpur (Raj.)

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Banay Singh S/o Bhagwan Singh, R/o Village Madhauni, Tehsil And District Bharatpur (Raj.)

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Sahab Singh S/o Bhagwan Singh, R/o Village Madhauni, Tehsil And District Bharatpur (Raj.)

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Mahendra Singh S/o Daulat Singh Alias Devendra Singh, R/o Madhauni, Tehsil And District Bharatpur

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----Respondents

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For Appellant(s) : Mr. J.K. Moolchandani For Respondent(s) :

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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29/05/2024

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Instant S.B. Instant Civil Second Appeal is preferred by appellant-plaintiff aggrieved from dismissal of Civil First Appeal No. 03/2018 by learned Additional District Judge No.4, Bharatpur on 12.05.2023 affirming the judgment and decree dated 24.11.2016 in Civil Suit No. 47/2016 passed by learned Civil Judge No.2, Bharatpur.

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Office has pointed out a delay of 138 days and to substantiate the reasons of delay, an application under Section 5 of Limitation Act is filed and considering the application and submission of learned counsel for appellant, application is allowed and delay is condoned.

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Misc. application stands disposed of.

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Two plaintiffs Gajendra Singh and Mahendra Singh have filed a civil suit for mandatory and permanent injunction with respect to land bearing Khasra Nos. 444, 445, 463 and 467, situated in Village Madhauni. Learned Trial Court after considering the evidence of the parties draw a conclusion that the plaintiffs have failed to establish their possession and the land in question is an agricultural land and civil suit is barred under Section 207 of Rajasthan Tenancy Act.

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Aggrieved from dismissal of civil suit present appellantGajendra Singh has filed a civil regular appeal but same was dismissed by the Appellate Court affirming the findings recorded by Trial Court. Herein, this appeal is filed against concurrent finding of facts recorded by the Courts below.

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Learned counsel for appellant while relying upon grounds of appeal submitted that father of plaintiffs was Khatedar tenant of land bearing Khasra Nos. 445, 463, 467 and 444 Village Madhauni and after the death of father of plaintiffs, the plaintiffs are Khatedar tenant. He also submitted that in some portion of Khasra No. 445, the plaintiffs are residing after constructing their own house and admittedly same is in possession of plaintiffs. He also submitted that the land in question is part of Aabadi land and

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except 1/5th share in Khasra Nos. 445, 463 and 467 remaining land is in possession of plaintiffs. He also submitted that only 1/5th share in Khasra Nos. 445, 463 and 467 was sold to father of defendants but defendants are trying to disturb the peaceful possession of the plaintiffs on remaining part of the land. He also submitted that the plaintiffs have filed suit for removal of encroachment upon other land by dispossession of defendants from portion marked as ABCD in site plan annexed with plaint but learned Trial Court without considering the entire evidence has drawn a conclusion on basis of a partial admission, which is factually incorrect and erroneous against the record. He also submitted that subject matter is within the jurisdiction of Civil Court. At last, he submitted that he suggested three substantial questions of law in para No.7 of the memo of appeal, thus, this appeal may be admitted.

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Heard learned counsel for appellant and perused the material placed on record. 8. On basis of pleadings of the parties, six issues were framed by learned Trial Court. It is quite clear that plaintiffs have filed a site plan (map) with plaint, wherein marked encroachment as ABCD in map and raised illegal construction of wall from E and F. The plaintiffs have examined three witnesses and exhibited four documents whereas defendants have examined two witnesses.

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Learned Trial Court has decided issue Nos. 1 and 2 together and after considering the revenue record and the evidence available on record, the Trial Court has drawn a conclusion that Khasra No. 444 was registered as “ Gairmumkin ”. The Trial Court

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has also observed that a mutation entry was recorded in the name of Bhagwan Singh who is father of defendants. The Trial Court has considered the statement of PW1 and PW2 and also the documents submitted by them. In cross-examination, both PW1 and PW2 admitted that in revenue record (Ex.P2), the land was not recorded in their name as tenant. The statement of PW3 is not helpful for the plaintiffs. Herein, the admission of both the plaintiffs was considered by Trial Court while drawing conclusion on issue Nos. 1 and 2. The admission in cross-examination is also a part of evidence and same was against the present appellantplaintiff.

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If there is any dispute as regard to entry in revenue record, then a suit for correction of entries can be filed before the Revenue Court but not before the Civil Court. While considering the issue No.3, the Trial Court has drawn a conclusion that Khasra No. 445 which was claimed as Aabadi land was shown as Chahi Bhoomi. The Trial Court invoking provision under Section 207 of the Rajasthan Tenancy Act ruled that the jurisdiction to consider the suit lies exclusively with the Revenue Court.

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Aforesaid conclusion was further affirmed on issue No.4 wherein the Trial Court has concluded that the plaintiffs have admitted that they are not in possession of land in question, therefore, the Trial Court has decided issues against the plaintiffs and ultimately dismissed the suit.

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While considering the appeal, learned Appellate Court has also drawn the same conclusion that the plaintiffs are not in possession on the land in question. The question of fact as

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answered by learned Trial Court was affirmed by the First Appellate Court.

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A perusal of grounds raised in this appeal indicates that the appellant-plaintiff has not raised any dispute about their residence and same was not an issue under consideration before the Trial Court. The pleadings of the parties clearly indicates that no relief was sought with regard to house (residence) of the plaintiffs. There was no threat or apprehension as regard to house of plaintiffs is concerned. The plaintiffs have raised an issue of land mark ABCD also the wall E and F. Thus, the findings of the Trial Court is confined to the issue raised in Civil Court.

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After considering the material placed on record, I am of considered view that no substantial question of law arises from the grounds raised by the appellant-plaintiff, therefore, the Courts below have not committed any error which give any scope of consideration by this Court by invoking power under Section 100 of CPC.

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Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

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Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314, as under:

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"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

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The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles.

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13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that:

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“At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only

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the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was:

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(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question;

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(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

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(iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71

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13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:-

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a) Not previously settled by law of land or a binding precedent.

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b) Material bearing on the decision of case; and (c) 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 matter. Therefore, it will depend on facts of each case.

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Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC

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1273

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16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.

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b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

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In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

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405 , Hon’ble Supreme Court explained the purpose of framing question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.

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c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

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19. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

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Online (SC) 1273 (decided on 22.09.2022) has summarised

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principle relating to Section 100 of CPC in following words:-

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“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

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In view of discussion made hereinabove, no case for interference is made out as the grounds raised herein are not sufficient to formulate any substantial question of law. Thus, the S.B. Civil Second Appeal sans merits and liable to be dismissed.

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In view of discussion made hereinabove, instant S.B. Civil Second Appeal is hereby dismissed.

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Misc. application(s), if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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GAURAV /445-S

Gajendra Singh S/O Daulat Singh Alias Devendra Singh v. Randheer Singh S/O Bhagwan Singh

Case brief

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Gajendra Singh S/O Daulat Singh Alias Devendra Singh v. Randheer Singh S/O Bhagwan Singh

Case brief

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