COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR Civil Second Appeal No.221/2010 Raghunath & Ors. v. Village Gotan

HON'BLE MR.JUSTICE A.M.SAPRE Mr. N.M.Lodha, Sr.Advocate assisted by Mr.V.D.Dadhich, for the appellants. Mr. O.P.Joshi, for the respondents. <><><> This is a second appeal filed by the defendant under Section 100 of Civil Procedure Code against the judgment and decree dt 19.11.2010 passed by District Judge, Merta in civil appeal No.33/06 which in turn arise out of judgment and decree dt 7.10.2006 passed by Civil Judge (SD), Merta in civil suit No.60/05 (137/86, 17/01).

By impugned judgment/decree, the first appellate court dismissed the appeal filed by the defendant and in consequence upheld the judgment and decree passed by the trial court in favour of the plaintiff.

So the question arises for consideration in this appeal is whether first appellate court was justified in dismissing the defendant’s appeal and in consequence was justified in decreeing the plaintiff’s suit. In other words, the question arise for consideration in this appeal is whether appeal involves any substantial question of law within the 2 meaning of Section 100 ibid and if so whether it is worth admitting on such question?

Having heard the learned counsel for the appellant and on perusal of the record of the case, I am of the considered opinion that this second appeal does not involve any question of law much less substantial question of law within the meaning of Section 100 ibid and hence it is liable to be dismissed as involving no substantial question of law.

The respondent (plaintiff) filed a suit essentially to protect his possession over the suit land against the appellant (defendant). It was a suit out of which this second appeal arises against the appellant for an injunction restraining the appellant from interfering in plaintiff’s possession over the suit land. The plaintiff asserted that he is and has been in possession over the suit land, whereas the case of appellant (defendant) was that since the plaintiff was an encroacher on the suit land hence he has to vacate the suit land. It is essentially this issue that was gone into on the basis of pleadings and evidence adduced by the parties in the suit. The trial court decreed the suit and the lower appellate court upheld it and dismissed the defendant’s appeal.

It is a settled principal law that concurrent finding of fact recorded by two courts below is binding on the second appellate court. Equally well-settled principal of law is that unless, such finding is found to be entirely against the pleadings or is found to be based on no evidence or is found to be recorded without taking into consideration the evidence on record or it is found to be against any provision of law or it is such that no judicial man of average acumen can ever record, it would bind the Second Appellate Court. In other words, it is only when the appellant is able to bring the case satisfying these criteria while challenging the finding, it would not be held binding despite being concurrent in nature. Equally well settled principle of law is that second appellate 3 court can not undertake the task of appreciation of oral evidence with a view to find out whether the finding recorded by the two courts was rightly recorded or not or whether some other finding could be recorded on such set of evidence on its appreciation or some other inference could be drawn and last but not the least, the second appellate court has to confine itself to the inquiry into the question as to whether appeal involves any insubstantial question of law within the meaning of Section 100 or not on the findings recorded by the courts below?

It is not the case, where the lower appellate court while decreeing the suit has failed to take into consideration any evidence adduced by the defendant or has wrongly interpreted the evidence adduced or has failed to take into consideration any pleading or has recorded a finding that no judicial man of average acumen can record.

In the light of these well settled parameters, which are required to be taken into consideration while hearing second appeal, I am of the view that the second appeal does not involve any substantial question of law.

Though learned counsel for the appellant made attempt to argue the issues but in my view all were on facts and hence did not impress me.

In the light of foregoing discussion, the appeal fails and is accordingly dismissed in limine as involving no substantial question of law within the meaning of Section 100 ibid. /tarun/ (A.M.SAPRE ),J.