Mohanlal v. Anjalsai

RESPONDENTS Defendants about 45 years. resident of village Both Sanvala, PS Khadgaon, Tehsil Manendragarh, Distt. Korea (CG).

Govt. of Chhattisgarh through Collector, Korea (CG). CAPPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDIJRE, 1908) fSinsIe Bench: Hon'Ue Mr. N.K. AjzarwaL J.) Present : Shri Sanjay Patel, Advocate for the appellants. Shri Anil Gulati, Advocate for respondent No. 1. Shri Sanjeev Agrawal, Panel Lswyer for the State.

ORAL ORDER (Passed on 13.09.2012) Heard cn admission. This is plamtiffs Second Appeal under Section 100 of CPC against the judgment and decree dated 13.12.2007, passed by the IInd Addl. District Judge, Korea, in Civil Appea! No. 36-A/07 aftlrming the judgment and decree dated 05.08.2004 passed by ^.^^se53i f&^.!' 1 ^ ^K^\ ^. '•^^...^ "•^^:.^-' -y•^ ^ Civil Judge, Class-II, Manendragarh, in Civil Suit No. 12-A/02 whereby and vvhereunder plaintiffs appea! has been dismissed.

3. Facts in brief, necessaty for disposa! of this appeal, are that: appellants/'plaintifTs father Gopalram filed a suit for declaration against the defendants for declamtion ofhis title over the suit land

based on prior partition. The claim was denied by the defendants. The trial court fi-amed issues. The parties led evidence. The trial court, on appreciation of the evidence led in the case, dismissed the suit finding inter alia suit property is not ancestral property of late Gopalram and Amritmm; nor was partitioned in the lifetime oflate Agarsai i.e. father of Gopalram and Amritram.

First appeai preferred there-against was also dismissed. Hence this Second Appeal.

Learned counsel appearing for the appellants/plaintiffs could not point out and illegality, perversity or absurdity in the concurrent findings recorded by both the courts below. Aiter going care&lly through the documents available on record, I also do not find any illegality or perversity in the concurrent findings arrived at by both the courts below.

The Supreme Court in the case of Kondiba Dagadu Kadain v. Savitribai Sopan Gujar, AIR 1999 SC 2213 has held in paragmph 4 ofitsjudgment as under: •^: ^^^ ^ 'The right of appeal is neither a natural or an iiiherent right attached to the litigation. Being a substantive statutorv' right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintamed and no Court has the power to add or to enlarge those grounds. The Second Appeal cannot be decided on merely equitable grounds The concurrent fiiidings offacts howsoever en-oneous cannot be disturbed by the High Court in exercise ofthe powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. "

While dealing with the scope of Section 100 of C.P.C., Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 in para 12 held thus: "substantial "12. The phrase question oflaw", as occurrmg in the amended Section 100 is not defmed in the Code. The "question of law", means - of word substantial, as qualifying having substance, essential, real, ofsound vvorth, important or considerable. contradistinction with - It is to be understood as something m technical, of no substance or consequeiice, or academic merely. However, it is clear that the legislature has chosen not "substantial to qualify the scope of question of law" by suffixing the words "of importance" as has been done in many other general provisions such as Section 109 of the Code or Article 133(l)(a) ofthe Constitution. The substantial question oflaw on which a second appeal shall be heard need not necessarily be a substantial question of law of general importaiice. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase "substantial question of law" as it was employed in the last clayse ofthe then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration aiid '^ ^;^^^ ,f'^'"~"'^ ;1:: ^'^.-.. ^ it did not niean a substantial their Lordships held that question of general importance but a substaiitial question of involved in the case as between the law which was parties..........."

From the decisions cited above, it is clear that under Section 100 of the Code of Civil Procedure, it is not permissible for this Court to re-appreciate the evidence of the parties without coming to the conclusion that a substantial question of law is involved in the appeal. It should be kept in mind that the substantial question of law is different from the substantial question of fact and the law does not permit this Court to decide substantial question oftacts in the garb ofsubstantial question oflaw.

Leamed counsel appearing for the appellants failed to point out any substantial question of law which may arise for determination in the case, in the absence whereof, this Court has no option but to dismiss the appeal.

For the foregoing, the appeal fails and is dismissed summarily. Sd/- N.K. Agrawal Judge Sahu