Dismissed

Manak Chand and Anr. v. Nirmal Kumar and Anr.

Rajasthan HC7 Feb 2024CSA/148/2017

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by plaintiffs challenging the dismissal of their suit for permanent injunction. The Court held that no substantial question of law arose under Section 100 of CPC as the lower courts did not commit error in finding no possession or valid title based on the patta.

What did the court decide?

The second appeal and any miscellaneous application were dismissed. No relief was granted to the appellants.

Manak Chand and Anr. Vs Nirmal Kumar and Anr. — Specific Performance | Rajasthan HC (2024)

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[2024:RJ-JP:26509]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 148/2017

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Manak Chand S/o Shankar Lal, R/o Kherabad, Tehsil Ramganj Mandi, District Kota

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Tara Chand S/o Shri Shankarlal R/o Kherabad, Tehsil Ramganj Mandi, District Kota

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----Appellants

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Versus

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1. Nirmal Kumar S/o Lal Chand R/o Kherabad, Tehsil Ramganj Mandi, District Kota

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1. Bharat Kumar S/o Lal Chand R/o Kherabad, Tehsil Ramganj Mandi, District Kota

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----Respondents

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For Appellant(s)	: Mr. Ashwani Bhargava
For Respondent(s)	: None

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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07/02/2024

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Instant second appeal is preferred by appellant, aggrieved from judgment dated 25.11.2016 in civil regular appeal No. 06/2011 passed by learned Additional District Judge, Ramganj Mandi, Dist. Kota wherein appeal preferred under Section 96 of CPC aggrieved from judgment and decree dated 12.08.2011 in civil suit No. 04/2002 was dismissed.

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Learned counsel for appellant while relying upon grounds of appeal would submitted that learned appellate court had committed serious error while considering the appeal preferred from judgment and decree passed by the trial court. He raised specific grounds and submitted that there are considerable

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grounds on which this appeal is preferred which gives rise to certain question of law as mentioned in memo of appeal therefore this appeal requires consideration by this Hon’ble Court. He also submitted that the appellate court has committed grave error in arriving at a conclusion prejudicial to the interest of present appellant and the findings are contrary to the settled proposition of law thus the instant second appeal is liable to be admitted on substantial question of law as raised by the appellant.

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Heard learned counsel for appellant and perused the record. 4. The appellant plaintiff had filed a civil suit for permanent injunction on the basis of patta dated 28.09.1975. Learned trial court after considering the evidence of both the parties concluded that appellant plaintiffs were not in possession at the time of filing of civil suit therefore they are not entitled for any injunction and the suit was dismissed. Aggrieved from aforesaid first appeal under Section 96 of CPC was filed by the plaintiff appellant and first appellate court after considering the material on record also concluded that the possession of the plaintiff was not established and moreover no record of patta was found in village Panchayat. On the basis of material on record the appellate court has ruled against the appellant.

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Learned counsel for appellant has relied upon order dated 02.05.2023 in S.B. Civil Second Appeal No.324/2009, wherein a Co-ordinate Bench of this Court had admitted appeal and framed the question of law. A perusal of findings recorded by the court below indicated that once the possession is not established and moreover the patta on the basis of which the claim was made was not proved then it is very difficult for the second appellate court to

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enter into question of fact. There is no mis-reading or non-reading of any document or evidence. Learned counsel for appellant has failed to show any perversity in the orders passed by the courts below therefore, unless there is any substantial question of law arising from the material available on record, the appeal cannot be entertained for consideration.

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Having considered the material available on record, no substantial question arises from the grounds raised by appellant plaintiff. The Courts below have considered the material placed before them and the conclusion was drawn after perusal of said material.

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In order to determine the substantial question of law we have to consider the test laid down by the 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 Hon’ble Supreme Court has observed has observed 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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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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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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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) referred to the judgments and observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. 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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Herein, we do not find anything wrong in the judgment of the first appellate court in an appeal under Section 96 of CPC. The appellants herein have challenged the judgment of first appellate

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court under Section 100 of CPC and there are no grounds on which we can conclude that the trial court or the first appellate court has committed serious error while adjudicating the issue on hand.

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Hence, no substantial question of law arises for adjudication in the instant appeal.

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In view of aforesaid, the instant S.B. Second Appeal is hereby dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /45

Manak Chand and Anr. v. Nirmal Kumar and Anr.

Case brief

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Manak Chand and Anr. v. Nirmal Kumar and Anr.

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