Second Appea! No. 53/2007 v. Chhattisgarh

JSB: Hon'ble Mr. N.K. Aaarwal, J.) Present : Shri Sushobhrt Singh, counsel for the appe!!ants. Shri G.D.Vasv^ani, G.A. forthe State. .^^^^ ^^ ^ r;f5-fc. ^ ^•^s^^ (0) (Passed on 10/0T/2012) Heard on admlssion. Thls is plasntiffs' Second Appeal filed under Section 100 of

2. CPC agalnst the judgment and decree dated 20.09.2006 passed by the 10th Additionai Distrid Judge (F.T.C.), Biiaspur, in Civll AppeaS No. 36-A/2005 affirming thejudgment and decree dated 10.05.2005 passed by the 2nd Civli Judge Class-2, BiSaspur in Civii Suit No. 27- A/05.

3. Facts necessary for dlsposal of this appeal are as under: (i) Pjaintiffs cjaiming themselves to be the owners in possession of suit tank inciudlng Paithu and Paar situated on land bearing Kh.No.101 area 2.65 acres, Kh.No.99 area

0.30 acres and ^i.No.102 area 1.42 acres (hereinafter referred to as sult property) fiied a suit for declaration ofthe order passed by the Sub-DiyisionaJ Officer, Biiaspur under Section 251 of

1959. the C.G.Land Revenue Code, 'the Code of 1959) on 30.12.1996 as iijegal (henceforth for permanent Injunction restrainang defendants 2 to 11 from interfering with their possession over the sult property. (il) The cSaim was denied by the respondents. ,—f^. '\ .^:'^ t . "'s.S^-1 On the basis of the pieadings of the partles, the trial Court framed issues. Parties led evidence. (iv) The triai Court dismissed the suit, findjng inter alia, piaintiffs failed to prove that they acquired ownershlp of the suit propertyafter acqulring the same in partltion; to prove Interference by the defendants; the villagers have Nistar rights in the suit tank. (v) The first appeal preferred by the appelfants/plaintiffs was also dismissed by the flrst appellate Court. Hence, this second appeal.

4. Shri Sushobhit Singh, learned counsei appelJants/plaintiffs, would submit: the order of Sub-Divisional Officer dated 30.12.1996 has aiready been set aside by the Additlonal Coiiector in Revenue Appeal No. 121/A-71/98-99 vide order dated

03.02.1999 and the matter has been remanded to the Sub-Divlsional Offlcer for its re-hearing, which is pending consideration. He would further submit: the defendants are interfering with the appeiiants' possession over the suit property, inasmuch as, they are using the tank for Msterwithout such right.

5. I have heard Shrs Sushobhit Singh, learned counsel for the appeliants and perused the records of both the Courts below incSuding judgment and decree impugned. --'^•^. &.C?i%W]? '••^^^'

6. As per own case of the appellants, thelr application under Section 251 of the Code of 1959 is pending consideration after the remand order passed by the Additional ColSector. Under Section 257 (y) of the Code of 1959, the revenue authorities have exclusive jurisdictlon to decide the dispute regarding vesting of tanks in the State Government under Section 251 of the Code'of 1959 and the Civi! Court's jurisdiction is barred.

7. Both the Courts below have concurrently held: plaintiffs failed to prove their case. The villagers have Nlstar right over the suit property is also evident from the statement of plaintiff No.1 - Sheikh Jahan paragraphs 11 and 15, relevant part of which reads thus: "ii.......................... 7m ^ ^Nr ^?T ^^cp4 ^ft ^IoTlif TT? ^TT tj ^ ?r ^T t ^W^ m^ ^ ^^ ^ ^ 'jTFTrTT ^^ ^ ^ 'w^^i^ 15 ^ ^ ^IT ^ RcijRc! HI^N ^r T[^ ^ ^rff ^- ^T 'T?^ ^ 1^R<TR ^l'm' 31T "'??r •^ -cFT -t^dtd t T^T ^TFT ^Rt t TTNt ^€f 1ft^ 7Hcr ^ cf1TT ^ctRj^ t f^ ^|c||Rd aiollsi "q? •^ t |

8. I have gone carefuii'y through the evidence brought on record and I do not find any infirmity, perversity and absurdlty In the factual findings recorded by both the Courts below. Sn my opinton, no substantiaj questlon of law arises for determination In the instant case. -y^' '•^•-^ ;• <s^

9. Whiie dealing with the scope of Section 100 of C.P.C., Supreme Court in the case of Ssntosh Hazarl v. Pumshottam Tiwart, (2001) 3 SCC 179 in para 12 held thus: "substantiai "12. The phrase no^ substance question of iaw", as occurring In the amended Section 100 is not defined In the Code. The word "question of iaw", means - of having substantial, as qualifying important or real, of sound worth. substance, essentiai, It is to be understood as something in considerable. contradistlnction wlth - technicai, consequence, or academic merely. However, it is ctear that the jegislature has chosen oot to qualjly the scope of "substantlaj questlon of law" by suffixing the words "of generai importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) ofthe Constitutjon. The substantiai question of !aw on whlch a seconcj appeai shail be heard need iaw of general not necessariiy be a substantial question of In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), importance. question of law" as it was employed in the the phrase tast ciause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordsh'sps heid that it did not mean a substantial question of importanc®but a substantiaj question of law which was general jnvoived in the case as between the parties..........." "substantlal

10. This Court cannot proceed to hear a second appeal without there being any substantiai question of law jnvoSved in the appeal. Exjstence of substantiai question of law is the ssne qua non for the exerca'se of the jurisdictjon under the amended Section 100 of the Code. Learned counsel appearing for the appeSlants faiied to point out any substantial question ot' Saw which may arise for determinatjon in this case. Sn the absence whereof, this Court has no optlon but to dismiss the appeal.

11. The appeal, therefore, fails and is dismissed.

12. No order as to costs. Sd/- N. K.Agarwal Judcie