Judge (CJM) Handwara (for short “Trial Court”) v. Ali Mohammad Bhat for land measuring 05 Kanals under Khasra no.402

Judge (CJM) Handwara (for short “Trial Court”), was decreed vide judgement dated 29th December 2012, cancelling decree dated 24th June 1997 in File no.122/Numbri titled Abdul Aziz Khawaja v. Ali Mohammad Bhat for land measuring 05 Kanals under Khasra no.402, situated at Sherkote Tehsil Handwara, with a decree for permanent CSA no.01/2018 injunction restraining defendants permanently from causing any sort of interference over the suit land.

4. It is worthwhile to mention here that the Trial Court framed and settled following issues: (1) Whether the plaintiff is in possession as owner of the land described in para 1st of the plaint? (OPP) (2) Whether the decree dated 24.6.97 passed by Sub Judge, Handwara, for land measuring 05 Kanals under Khasra no.402 situated at Sherkote is fake, forged and based on fraud, being null and void on the rights of plaintiff as such deserves to be cancelled? (OPP) (3) Whether the defendants are interfering in the possession of the plaintiff over the suit land on the basis of fake and forged decree? (OPP) (4) What are the reliefs to which the parties are entitled?

5. Evidence was adduced before the Trial Court. Before the Trial Court, judgement and decree dated 24th June 1997 was sought to be cancelled with perpetual injunction restraining defendants from interfering in the suit property. The Appellate Court has found that a plaint was instituted on 18th June 1997 and decreed on 24th June 1997 as being compromised. In terms of judgement dated 29th December 2012, the Trial Court (Sub Judge (CJM), Handwara, has found that plaintiff had not executed any compromise in favour of defendant nor had appeared before the court and that defendant no.1 had managed to obtain fake and forged decree regarding suit land on the basis of fake and forged compromise deed, thereby impersonating someone else in place of plaintiff in the court. Accordingly, the Trial Court cancelled the decree dated 24th June 1997 and restrained defendants from causing any sort of interference over the suit land.

6. Civil First Appeal was preferred by defendants – appellants herein before the 1st Appellate Court, which was dismissed vide impugned CSA no.01/2018 judgement and decree dated 31st October 2017, upholding the Trial Court judgement and decree.

7. Counsel for appellant has proposed the following substantial questions of law for deciding the instant appeal: (1) Whether consented decree/judgement could be set aside without following the mandate of law, so as to plead and prove impersonation or fraud? (2) What procedure is to be adopted for verification of thumb impression or signature subscribed on compromise deed entered between the parties before court of law. If in the circumstances or eventuality forensic science laboratory opined specimen of parties do not reveal detail or does not project characteristic detail and in case of being smudged and opinion for its veracity is not possible due to improper specimen? (3) Whether compromise entered between the parties in presence of witnesses and before the court is binding on court of law so as to pass collusive decree after satisfaction of parties in accordance with mandate of law envisaged under Order 23 Rule 3 of CPC? (4) What is period/time is sufficient for passing judgment and decree in the suit for declaration after the date of its institution? (5) What is the responsibility of court under law, when a party alleges that collusive decree is fake and fraud? The suit declaring it nullity or non est and mandate of law as envisaged under Order 23 Rule 3 CPC, then how to fix responsibility and punishment? (6) What are the basic requirements of law as prescribed under Code of Civil Procedure for the court of law for reaching to conclusion regarding veracity of documents on the basis of oral and documentary evidence adduced by parties and how could same be properly scrutinized and appreciated under law? (7) Whether the consented decree and judgment could be declared null and void on the basis of vitiated finding and on the basis of conjectures resulting in involvement of perversity? (8) Whether Order 23 Rule 3 of Civil Procedure Code makes mandatory on the court to look into intention of parties and prayer made in the suit and then only pass a judgment/decree based on mutual consent? (9) Whether term fraud and impersonation are to be pleaded on the test of strict scrutiny to be done in accordance and within the legal requirement under law of evidence and criminal procedure code? (10) Whether under Order 23 Rule 3 of CPC, it is obligatory on court to pass decree based on compromise in terms of compromise after it records statement of parties and same is binding on the parties? (11) Whether remedy under Order 23 Rule 3 of Civil Procedure Code becomes infructuous in the light of mandate of law as CSA no.01/2018 envisaged under Section 39 of Specific Relief Act of J&K read with Section 31 of the Central Act?

8. In the above background, it would be appropriate to say that it is well settled that it is not within the domain of the High Court to investigate grounds on which the findings were arrived at by the last court of fact, being first appellate court. It is true that lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by trial court, the same is no ground for interference in second appeal when it is found that appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal and adopting any other approach is not permissible.

9. The first issue as to whether consented decree/judgement can be set- aside without following mandate of law so as to plead and prove impersonation or fraud, that has been raised by counsel for appellant as being substantial question of law, has already been discussed by both Trial Court and Appellate Court. Thus, the said issue is not a substantial question of law.

10. Insofar as second issue, relating to thumb impression and specimen, is concerned, it relates to fact and cannot be said as substantial question of law. The Trial Court has, while deciding Issue no.2, has discussed in detail thumb impression and specimen. Thus again, the second issue proposed by counsel for appellant is not a substantial question of law that could be decided in Civil Second Appeal. CSA no.01/2018

11. The third issue, proposed by counsel for appellant as being substantial question of law, relates to compromise. This factual aspect/issue of the matter has been dealt with by both Trial Court and Appellate Court.

12. First Appellate Court has attended to, discussed and decided all the issues, which have been proposed here by counsel for appellant as substantial questions of law and, therefore, the proposed issues do not come and fall within the meaning of “substantial question of law”. The basic and primary facets and questions of the matter, including those raised in the instant memo, have already been threadbare discussed and settled by both Trial Court and Appellate Court.

13. Section 100 of the Code of Civil Procedure provides for a second appeal on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law.

14. The Supreme Court in State Bank of India and others v. S.N.Goyal, AIR 2008 SC 2594, explained the terms “substantial question of law” and observed as under: “The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ……..... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.” (Emphasis added) Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, this Court for the purpose of determining the issue held:- CSA no.01/2018 “The proper test for determining whether a question of law raises 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…..”

15. The Supreme Court in Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673 has held that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ’substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law ’involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

16. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine qua non for exercise of jurisdiction under the provisions of Section 100 CSA no.01/2018 CPC. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of relevant evidence.

17. There may be a question, which may be a “question of fact”, “question of law”, “mixed question of fact and law” and “substantial question of law.” Question means anything inquired; an issue to be decided. The “question of fact” is whether a particular factual situation exists or not. A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. [See: Salmon on Jurisprudence, 12th Edn. Page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil an dothers, AIR 1994 SC 678]

18. From the above background it is inferable that a second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the court cannot expand the scope of the appeal. 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 by the Supreme Court in Ramchandra v. Ramalingam, AIR 1963 SC 302. In the present case, it is not open for appellant to re-agitate the facts or to call upon this Court to reanalyse or reappreciate evidence CSA no.01/2018 in Second Appeal, which has been dealt with, discussed and decided by 1st Appellate Court in detail and in comprehensive manner. Having said so, the instant appeal is liable to be dismissed.

19. For the reasons discussed above, as no substantial question of law is made out by appellant or come out from the case set up by him, the instant Second Appeal is dismissed and resultantly judgement and decree dated 31st October 2017 passed in Civil First Appeal, is upheld as there is no illegality or perversity in the judgement and decree passed by 1st Appellate Court.

20. Decree sheet be prepared accordingly. 21. No order as to costs. 22. Copy be sent down along with the record. Srinagar 06.05.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes/No (Vinod Chatterji Koul) Judge CSA no.01/2018