Dismissed

Afsar Son of Karim Urf Abdul Karim, v. Nagar Parishad.Karauli

Rajasthan HC1 Feb 2024CSA/45/2022

Case brief

AI extract

What is this about?

In this civil second appeal, the High Court of Rajasthan examined the scope of Section 100 of the CPC. Upholding the lower appellate court's decision, the Bench held that no substantial question of law arose regarding the dismissal of a permanent injunction suit concerning ancestral property and disputed construction. The appeal was accordingly dismissed.

What did the court decide?

Second appeal dismissed. Concludes settlement of disputes at the appellate level where no substantial question of law exists.

Afsar Son of Karim Urf Abdul Karim, Vs Nagar… — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JP:5786]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 45/2022

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Afsar Son Of Karim Urf Abdul Karim, Resident Of Outside Wazirpur Gate, Karauli Tehsil, And District Karauli (Rajasthan).

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----Appellant

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Versus

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Nagar Parishad.karauli, Through Chairman Nagar Parishad Karauli,

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Commissioner, Nagarparishad Karauli,

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District Collector, Karauli,

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Divisional Commissioner, Bharatpur Division, Bharatpur.

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Khali Son Of Habib, Resident Of Outside Wazirpur Gate, Karauli Tehsil And District Karauli, Rajasthan.

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Liyakat Son Of Habib, Resident Of Outside Wazirpur Gate, Karauli Tehsil And District Karauli, Rajasthan (Absent).

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Mehmood Son Of Habib, Resident Of Outside Wazirpur Gate, Karauli Tehsil And District Karauli, Rajasthan (Absent).

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Shahanaz Wife Of Shahrukh, Daughter Of Habib, Resident Of Meena Masjid, Nahari Ka Naka, Jaipur (Raj) (Omitted).

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Phirdos Wife Of Azad, Daughter Of Habib, Resident Of Madina Masjid, Nahari Ka Naka, Jaipur (Raj) (Omitted).

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Sattar Son Of Abdul Rahman, Resident Of Outside Wazirpur Gate, Karauli Tehsil And District Karauli, Rajasthan (Absent).

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Asgari Wife Of Abdul Rahman, Resident Of Outside Wazirpur Gate, Karauli Tehsil And District Karauli, Rajasthan (Absent).

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----Respondents

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For Appellant(s) : Mr. Manak Chand Jain For Respondent(s) :

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

01/02/2024

[2024:RJ-JP:5786]

[CSA-45/2022]

(2 of 10)

Instant second appeal is preferred aggrieved from order dated 30.10.2021 in Civil Regular Appeal No. 29/2019 passed by learned Additional District Judge, Karauli whereby judgment and decree dated 18.09.2019 in Civil Suit No. 40/2006 (129/2003) was affirmed and the appeal was dismissed.

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Learned counsel appearing for appellant/plaintiff submitted that a suit for permanent injunction was filed by the appellant on the basis of ancestral property but learned trial court without considering the evidence and the material on record has dismissed the suit and further appellate court in most arbitrary and superficial manner dismissed the appeal. He specifically referred the fact that the issues and findings recorded by the learned trial court and submitted that there are legal and substantial questions involved in the present appeal so the present appeal is liable to be admitted on substantial question of law as framed by the appellant. At last, he submitted that judgments of Courts below suffers from material illegality.

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Heard learned counsel for appellant.

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Instant second appeal is preferred from concurrent findings of courts below, therefore, this Court has to consider whether their exists some substantial question of law required to be adjudicated by this Court.

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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.

(3 of 10)

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[CSA-45/2022]

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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In case of In M.S.V. Raja v. Seeni Thevar AIR 2001 SC 3389 , it was held by Hon’ble Supreme Court that the formulation of a substantial question of law may be inferred from the kind of questions actually considered and decided by the High Court in second appeal, even though the substantial questions of law were not specifically and separately formulated.

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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

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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.

(4 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

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: “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 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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13.4 Non-formulation of substantial question(s) of lawrenders proceedings “patently illegal”. This

(5 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

Court’s decisions in Umerkhan v. Bimillabi (2011) 9 SCC 684 and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678 indicate this position.

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Substantial questions of law, as framed by the High Court must be answered in light of the contentions raised therein.

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14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties. 14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11 SCC 114 where the following principles were observed: -

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a) The substantial question of law framed by the High Court must be answered, with reasons. Disposing off the appeal without answering the same cannot be justified.

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b) If a need is felt to modify, alter or delete a question, a hearing must be provided to the parties in respect thereof.

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14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal.

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In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd (2009) 16 SCC 280 it was observed:

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“4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted “to argue that the case does not involve such question” i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law.”

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Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in U.R. Virupakshappa v. Sarvamangala (2019) 2 SCC 177 held:

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“15. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)].

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The High Court, in this case, however, formulated a substantial question of law while dictating the judgment in open court. Before such a substantial question of law could be formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same.

(6 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil Procedure were required to be met.”

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16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani , (2019) 19 SCC 415 observed in respect of application of Section 100(5) CPC as under:-

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a) It is not rule under proviso to sub-section (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC.

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b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court. 16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj ) (2007) 15 SCC 387.

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16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not qualify for substantial question of law and neither wrong application of facts.

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16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai (2020) 16 SCC 255

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This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , observed-

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“6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law…”

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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.

(7 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

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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Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd.

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Khalil (2001) 5 SCC 30

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…The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.”

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This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors (2021) 13 SCC 816. 17.1. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a “third appeal” is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala (2020) 19 SCC 57

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as under:

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“33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where:

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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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 17.2 The extent of the same may be underscored by the observation that:

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“32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . 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 matter.”

(8 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

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 Court in case of Chandrabhan Vs. Saraswati

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2022 SCC Online (SC) 1273 (decided on 22.09.2022) has

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summarised 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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Thus, Hon’ble Supreme Court summarised the principle relating to Section 100 of CPC in following words:

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“(i)An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(9 of 10)

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[CSA-45/2022]

(ii)The Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue.

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(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle.

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(iv) In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (v)The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below, But it is not an absolute rule. Some of the well-recognised exceptions are where

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(a) the courts below have ignored material evidence or acted on no evidence;

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(b) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or

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¶115

(vi)When the Court refers to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

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The appellant plaintiff has preferred a civil suit for permanent injunction before the learned Additional Senior Civil Judge, Karauli wherein on the basis of pleadings of the parties issues were framed wherein both the parties have led their evidence and after considering the evidence on record the civil suit was dismissed.

(10 of 10)

[2024:RJ-JP:5786]

[CSA-45/2022]

The trial court has considered the evidence on record and concluded that the construction of staircase and balcony by the plaintiff was not on the land belongs to plaintiff. The trial court has rightly considered the evidence on record and has not committed any illegality or perversity while reading the evidence produced by the parties. Aggrieved from aforesaid, a civil regular appeal was filed before the learned Additional District Judge, Karauli and same was dismissed on 30.10.2021. The first appellate court has also considered the grounds raised by the appellant/plaintiff in the right perspective and has not committed any illegality, therefore, no illegality or perversity was found in the order of the Courts below .

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Considering the law over the point in light of Section 100 of CPC, I am of the considered view that a suit for permanent injunctions was preferred by the appellant/plaintiff and same was dismissed by the trial court and the findings of the trial court were affirmed by the appellate court, therefore, looking to material on record and impugned judgments of the Court below, I am of the considered view that no substantial question of law exists for adjudication by this Court under Section 100 of CPC.

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Hence, the appeal is liable to be dismissed.

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In view of aforesaid, the 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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CHETNA BEHRANI /16

Afsar Son of Karim Urf Abdul Karim, v. Nagar Parishad.Karauli

Case brief

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Afsar Son of Karim Urf Abdul Karim, v. Nagar Parishad.Karauli

Case brief

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