URBAN IMPROVEMENT TRUST, KOTA & Anr. v. GAJENDRA SINGH

Mr. Alok Sharma, Senior Counsel with Mr. Ashish Sharma, for the appellants. Mr. J.P. Goyal, Senior Counsel with Ms. Shikha Parnami, for the respondent. **** Heard learned counsel for the parties.

Plaintiff/respondent filed a suit for declaration and permanent injunction in respect of disputed property, which was decreed by the trial Court. The judgment and decree passed by the trial Court has been affirmed by the First Appellate Court while dismissing the first appeal of appellants. Hence, this second appeal has been preferred on behalf of defendants/appellants.

I have considered the submissions of learned counsel for the parties and examined the impugned judgments passed by both the Courts below and I find that no substantial {2} SB CIVIL SECOND APPEAL 467/2010 question of law is involved in this second appeal so as to entertain it.

Controversial issues involved in the present case are relating to question of facts and there is concurrent finding of facts by both the Courts below, which cannot be interferred with by this Court in second appeal under Section 100 CPC.

A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:

......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.

The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan {3} SB CIVIL SECOND APPEAL 467/2010 Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:

......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....

The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: Despite “81. repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 {4} SB CIVIL SECOND APPEAL 467/2010 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly legislative intention. violates

82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

No substantial question of law is involved in this second appeal, therefore, the same is dismissed in limine. (NARENDRA KUMAR JAIN),J. /KKC/ {5} SB CIVIL SECOND APPEAL 467/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B.CIVIL MISC. STAY APPLICATION NO.2341/2010 IN S.B. CIVIL SECOND APPEAL NO.467/2010 URBAN IMPROVEMENT TRUST, KOTA & ANR. Vs. GAJENDRA SINGH DATE: 12.05.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Alok Sharma, Senior Counsel with Mr. Ashish Sharma, for the appellants. Mr. J.P. Goyal, Senior Counsel with Ms. Shikha Parnami, for the respondent. **** Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J. /KKC/