Dismissed

Gopal Lal Choudhary S/O Manaram, v. Smt. Asgari Begum W/O Late Fajaluddin

Rajasthan HC14 Feb 2024CSA/85/2024

Case brief

AI extract

What is this about?

Second appeal challenging a decree protecting the plaintiffs' possession without declaring title, after first appeal was dismissed. Applying Supreme Court tests for a substantial question of law under Section 100 CPC, the court found none and dismissed the appeal.

What did the court decide?

None granted; second appeal dismissed, no costs, misc. applications disposed of.

Gopal Lal Choudhary S/O Manaram, Vs Smt. Asgari Begum… — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JP:26514]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 85/2024

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Gopal Lal Choudhary S/o Mannaram, R/o Hingoniya, Tehsil Kishangarh Renwal, District Jaipur.

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----Appellant

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Versus

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Smt. Asgari Begum W/o Late Fajaluddin, Aged About 75 Years, R/o Ward No. 2, Jobner, District Jaipur (Deceased).

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1/1. Nafisa Bano D/o Late Fajaluddin Qureshi, Aged About 58 Years, W/o Jumankhan, R/o Jobner, Presently Residing At Vyapariyon Ka Mohalla, Sursagar, Jodhpur.

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1/2. Rukhsana Bano D/o Late Fajaluddin Qureshi, W/o Mohamma Najar, Aged About 53 Years, R/o Jobner, Presently Residing At M.d. Road, Sanganeri, Gate, District Jaipur.

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Salauddin S/o Late Fajaluddin, Aged About 43 Years, R/o Ward No. 2, Jobner, District Jaipur.

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Nagar Palika Mandal Jobner, Through- A. President, Nagar Palika Mandal, Jobner. B-Executive Officer, Nagar Palika Mandal, Jobner.

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Raisuddin S/o Fajaluddin, Aged About 48 Years, R/o Ward No. 2 Jobner, District Jaipur.

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----Respondents

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For Appellant(s)	: Mr. Mahaveer Singh Sherawat
For Respondent(s)	: None

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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14/02/2024

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Instant second appeal is preferred by appellant, aggrieved from judgment dated 30.10.2023 in civil regular appeal No. 20/2020 passed by learned Additional District Judge No.2, Sambhar Lake, Jaipur wherein appeal preferred under Section 96

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of CPC aggrieved from judgment and decree dated 13.02.2017 in civil suit No. 741/2004 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 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 first 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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Learned counsel for appellant submitted that a suit for declaration and injunction was filed by the respondent claming to be their on property but this property was never remained in possession of the plaintiff. He also submitted that a counter claim was also filed wherein the husband of plaintiff had acknowledged the ownership of appellant defendant but the trial court dismissed the counter claim without a valid reason. He also submitted that aggrieved from judgment and degree of the trial court in favour of the plaintiffs the first appeal was preferred by him and same was dismissed without considering the grounds raised by the appellant. He also submitted that the courts below have committed serious error while discarding the case of defendant and allowing the

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claim of the plaintiffs as the suit was filed without any basis and locus.

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Heard learned counsel for appellant and perused the record.

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The facts giving rise to instant second appeal are that a suit for declaration and perpetual injunction was filed by plaintiff Asgari and Sallaudin before learned Civil Judge Sambhar Lake, Jaipur city claming that the suit property does not belong to defendant No.1 and 3 but they are trying to dispossess the plaintiff. Defendant No. 2 had filed written statement in support of plaint and plaintiff has also claimed the relief for defendant No. 2, as proforma defendant. Defendant No.3 had filed written statement with counter claim stating that the husband of plaintiff No.1 has claimed that the property belongs to defendant No.3 same was purchased by defendant No.3 in open auction therefore this property is not an ancestral property of the plaintiffs and defendant No. 2.

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On the basis of pleadings of the parties, six issues were framed by the trial court. Total 06 witnesses were examined by the plaintiffs and five documents were produced in support of claim of plaintiff. Two witnesses were examined and 15 documents were produced by the defendant. Learned trial court had adjudicated issue No. 1 in favour of plaintiff only up to the extent of protection of possession but refused to declare plaintiffs as owner of the suit property. The issue Nos. 2, 3 and 4 were decided together and issue No.2 was partially decided in favour of plaintiff but issue No. 3 and 4 against the defendant. Learned trial court had passed following judgment and degree in favour of plaintiff:

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"vkns'k

21&Qyr% okn oknhx.k ckcr ?kks"k.kk ,oa LFkkbZ fu"ks/kkKk fo:) izfroknhx.k bl izdkj vkaf'kd :i ls fMØh fd;k tkrk gS fd izfroknhx.k dks bl vk'k; dh LFkkbZ fu"ks/kkKk ls ikcan fd;k tkrk gS fd os oknhx.k dks okn i= dh en la[;k ,d ls of.kZr Hkw[k.M ftls layXu uD'ks esa ekdZ , ch lh Mh ls nf'kZr fd;k gS] ls fcuk fof/kd izfØ;k viuk;s csn[ky ugha djsa u oknhx.k ds mi;ksx miHkksx esa O;o/kku mRiUu djsaA i{kdkj viuk viuk [kpkZ ogu djsaxsA ipkZ fMØh rnuqlkj eqfrZc fd;k tkosA"

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Aggrieved from aforesaid first appeal under section 96 of CPC was filed by the appellant defendant No. 3 before the first appellate court and same was dismissed.

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A perusal of judgment of trial court clearly indicated that the counter claim was filed by defendant No. 3 appellant herein and issue was framed on the basis of pleadings of the parties and this issue was decided against the defended No. 3 appellant. Though there is no formal order of dismissal of counter claim but still the counter claim was not found proved in favour of appellant defendant No.3.

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The decree passed in favour of plaintiff clearly indicated that the possession of the plaintiff was established from the material on record and the trial court has passed the decree after considering the evidence of both the parties. The evidence of DW 1 Gopal, who is present appellant, was not found to be trustworthy and same was affirmed by the first appellate court. The decree is only for the protection of the possession and not

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more than protection. Defendant no. 1 and 3 are free to evict the plaintiffs after adopting due process of law as the plaintiffs were found to be entitled for protection. Herein this case that trial court has refused to declare title in favour of plaintiff for suit property and this property does not belong to plaintiff and they are only position holder. Admitted facts and further affirmed by two courts below cannot be reagitated in second appeal under Section 100 CPC.

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A perusal of grounds raised by the appellant shows that there are no sufficient grounds which give rise to substantial question of law which requires any consideration by the court, therefore we do not find any perversity or illegality in the orders passed by the courts below which give rise to substantial question of law, therefore, we do not find any abnormality in the orders passed by the courts below.

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Having considered the material available on record, no substantial question arises from the grounds raised by appellant defendant. It is settled proposition of law that first appellate court is last court to agitate facts in civil cases.

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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

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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 405 , Hon’ble Supreme Court explained the purpose of framing

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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. 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.

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(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

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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 appellant herein has challenged the judgment of first appellate 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. No order as to costs. 19. Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /53

Gopal Lal Choudhary S/O Manaram, v. Smt. Asgari Begum W/O Late Fajaluddin

Case brief

What is this about?

What did the court decide?

Gopal Lal Choudhary S/O Manaram, v. Smt. Asgari Begum W/O Late Fajaluddin

Case brief

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What did the court decide?

What the court decided

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