Nagar Palika, Sawaimadhopur. vs Connected With

: Mr. Nitin Sinsinwar ----Appellant ----Respondent HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 27/05/2025 Order

1. These two S.B. Civil Second Appeals were preferred by appellants plaintiffs Imamuddin aggrieved from a common judgment dated 03.08.2016 in two different civil regular appeal nos. 198/2009 (05/2002) and 201/2009 (4/2002) affirming the judgment and decree dated 22.01.2002 in civil suit no. 163/1995 and 180/1994 respectively.

2. Since the matter pertains to a common question of law, therefore, we are considering both the appeals by the common order. [2025:RJ-JP:23108] (2 of 11) [CSA-348/2016]

3. Learned counsel for appellants plaintiffs while relying upon grounds of appeal has submitted that the plaintiff has filed a civil suit for declaration and permanent injunction on the ground that a piece of land (plot) was allotted to him by Village Panchayat, Sherpur and after obtaining permission to raise construction the appellant has raised construction over the land. He further submitted that in the meanwhile, the jurisdiction of area was changed as the area has been merged with Municipal Board of Sawai Madhopur and the appellant plaintiff has made application for permission to raise further construction but same was not granted. He also submitted that now the Municipal Board has served a notice to remove construction and also the possession which forced the appellant plaintiff to file a civil suit. He also submitted that grounds raised by him are sufficient to show that the appellant plaintiff was legal allotee of the land by Village Panchayat, Sherpur and after procuring a permission he is in possession of the suit property. He also submitted that the Municipal Board is under obligation to honour the allotment and permission of Village Panchayat. He also submitted that the grounds give rise to substantial question of law as suggested in para no.6 of memo of appeal.

4. Aforesaid contentions were opposed by learned counsel for respondent on the ground that after delimitation exercise and increase in area of Municipal Board, the appellant plaintiff has acquired document in connivance with the then Sarpanch of Village Panchayat, Sherpur and on the basis of [2025:RJ-JP:23108] (3 of 11) [CSA-348/2016] this fabricated document filed a civil suit. He also submitted that the trial court and the appellate court have examined the factual evidence of both the parties and there is a concurrent finding of facts, recorded by the courts below.

5. Heard learned counsel for the parties and perused the entire record.

6. The facts of both the cases are common and instant second appeal is filed on the ground that the plaintiff has filed a civil suit on the basis of claim over plot measuring 30x10 feet purchased from Village Panchayat, Sherpur on 12.02.1965 on the basis of possession since 1960 after making payment of Nazrana. The plaintiff has also raised construction after obtaining permission from Village Panchayat and later installed electricity connection. When the plaintiff made application for construction on remaining area to the Municipal Board then a notice has been served for removal of construction. The respondent defendant has filed written statement denying the averments of plaint. The trial court has consolidated two suits on 26.03.1999 and framed eight issues. The plaintiff has examined 5 witnesses and exhibited 12 documents but no evidence was produced by the defendants. Ultimately, both the suits were dismissed by the trial court on 22.01.2002 and two appeal were preferred before the appellate court and both were dismissed on

03.08.2016.

7. An identical issue was decided by this Court on 11.03.2025 in civil second appeal no. 555/1998 and 557/1998 wherein [2025:RJ-JP:23108] (4 of 11) [CSA-348/2016] also a piece of land was allotted by same Village Panchayat, Sherpur on 12.06.1965 on the basis of old possession after depositing the nazrana amount. This court has initially admitted appeal no. 555/1998 on 07.12.1999 and second appeal no. 557/1998 on 03.01.2001 and both appeals were consolidated and were dismissed by this Court. The relevant paragraph of the judgment is reproduced as under:

11. The appeal is preferred by appellant-plaintiff and issue No.1 was decided in favor of plaintiff by learned Trial Court. Learned Appellate Court has affirmed the findings on issue Nos. 2, 3, 4, 6 and 7 to set aside the findings recorded on issue Nos. 1 and 5. The Appellate Court considered the written statement filed by defendant wherein defendant have pleaded that there was no plot as claimed by plaintiff on site. The defendant has raised a doubt on the process of allotment and approval of construction plan on very same day and same is part of pleading of defendant. The main objection of learned counsel for appellant is that plaintiff has able to establish that on 12.05.1965, a Patta was issued in his favor. Learned Appellate Court has referred the Patta and observed that the Patta was issued on 12.05.1965 and construction was approved on very same day. The area wherein the disputed plot is situated was included in notified area Mantown on 27.09.1965. There is a time gap of 4 and a half months. In order to verify the contention 12. of plaintiff, we have gone through the evidence of PW-1 (Kajod Mal) particularly cross examination. The admission of PW-1 (Kajod Mal) in civil suit No. 43/1991 clearly indicate that this witness was not able to name members and Deputy Sarpanch. The admission also indicate that the copy [2025:RJ-JP:23108] (5 of 11) [CSA-348/2016] of decision is not filed on record. Similarly, the cross objection of PW-2 (Kalyan Mal), who was Sarpanch on 12.05.1965 shows that deputy Sarpanch was Heera Lal, area members were Bishan Lan and Prahalad whereas Secretary was Ramphool Bairwa. The admission of PW-2 also indicate that the record relating to disputed plot was not handed over to municipal body. The admission also application filed by plaintiff is not available on record. indicate

13. Similarly, in civil suit No. 44/1991 Sarpanch-Kalyan Mal was examined as PW-1 and his admission also indicate that for disposal of any land a report of two Panch is taken before making a decision on the property. The admission also indicate that plaintiff was not in possession of disputed property at the time of disposal. The plaintiff was examined as PW-2 and his cross-examination indicate that he is not aware who purchased the property in his vicinity. merger

14. The evidence of plaintiff and supportive witness Kalyan Mal in both the civil suit clearly suggest that record of Village Panchayat was not handed over to the Municipal Committee after conversion on 27.09.1965. In both the cases, neither application form of plaintiff nor report of two members were produced to prove patta. The admission further suggested that plaintiff-appellant possession on allotted plot before 12.05.1965. There is no document of handing over of possession to plaintiff by Secretary of Panchayat. was not In civil suit No. 43/1991 DW-1 15. Mahesh Sharma and DW-2 Kajod Mal Sharma was examined by defendant whereas in civil suit No. 44/1991, DW- 1 Kajod Mal was examined by defendant, we have gone through the evidence of defendant, in both the cases. Herein, in this case, it is apparent that the application filed by [2025:RJ-JP:23108] (6 of 11) [CSA-348/2016] plaintiff is not available on the record. The report is required to be obtained from two members i.e. (Ward Punch) is also not available on record. It also indicate that Patta and map was signed by Sarpanch and not by Secretary or any other member who was present in the meeting of village Panchayat on 12.05.1965. The meeting of village Panchayat was attended by 8 persons but signature of no one is available on record. this case the cross Herein, examination of plaintiff and also of Sarpanch clearly raised a doubt about process of issuance of Patta issued favor of plaintiff. The main issue is conversion of village Panchayat into municipal area and after the conversion, the record relating to patta was not transferred to municipal body. It also indicate that the procedure a transfer of record as prescribed under the law was not followed, meaning thereby, there was no office record of issuance of Patta in pursuant to decision of Village Panchayat. The record relating to allotment of land is not filed to establish that the Patta was issued by Village Panchayat, under the authority of local body. The cross examination of Sarpanch clearly suggest that an irregular process was adopted and same is sufficient to cast a doubt upon Patta. Herein, this case, the plaintiff was not able to establish his own fact and the trial court only on the basis of documents available on record has found that the plaintiff has prima facie case to procure injunction.

16. The Appellate Court on the basis of pleadings and evidence has set aside the finding recorded on issue Nos. 1 and 5. Herein, a suit for permanent injunction was filed by the plaintiff, only when the Municipal body (defendnt) has refused to grant him a permission for construction. The fact narrated by the plaintiff clearly suggests that on 12.05.1965, when the land was allotted, the permission for construction was also accorded by [2025:RJ-JP:23108] (7 of 11) [CSA-348/2016] village Panchayat. Herein, the plaintiff has failed to establish that the amount recovered by Village Panchayat was deposited to States’ Exchequer. There is no official record submitted in support of Exs. 1 to 3 filed by plaintiff. The admission of Sarpanch is enough to dent the case of plaintiff, thus, the Appellate Court has not committed any error while setting aside the finding on issue Nos. 1 and 5. The Appellate Court has not traveled beyond pleadings and record while setting aside findings.

17. In view of aforesaid, the authority of Village Panchayat about disposal of land in accordance with law is not established and the duty lies upon the plaintiff to establish the fact, that he acquired suit property in accordance with procedure prescribed. If disposal of land was in accordance with law, then only after conversion of Panchayat area to municipal area, the plaintiff has a right to bound municipal body for the decision taken by the Village Panchayat. The admission of plaintiff indicate that no construction was raised despite permission by Village Panchayat on 12.05.1965. The plaintiff has claimed that only few masonary stones were there to establish municipal body has denied the possession of plaintiff. Herein, on the basis of rock stones, no one can claim his possession, Appellate Court has rightly decided Issue Nos. 1 and 5. the possession, therefore,

8. Herein this case, the trial court on the basis of evidence has drawn a conclusion that the decision Ex. 1 of Village Panchayat does not prove the possession of plaintiff. The trial court has interpreted the language used in the decision while analysing issue nos. 1 to 7. Similarly, issue no.7 analysed by the trial court and issue nos. 2 and 7 were decided against [2025:RJ-JP:23108] (8 of 11) [CSA-348/2016] the plaintiff. The allotment and possession is a question of fact and after considering the evidence including cross- examination of plaintiff, the issue was decided against plaintiff. The appellate court after considering the material on record including submission has also drawn the same conclusion. It is on record that defendant have not filed any evidence, but the witnesses of plaintiffs were cross examined by the counsel for defendant and same is sufficient to defend the case.

9. The general principle of law is that the party who brings the case has to establish his own case. It is general principle that the suit has to stand on his own legs and by adducing the evidence the party have to prove its own case. It is responsibility of the party who is bringing the case to prove it by producing and proving the evidence. Herein this case, the plaintiff has failed to prove that the Village Panchayat was having a jurisdiction to allot land in particular manner as claimed by him. The issue of fact is decided against the appellant and unless the findings are shown as contrary to the material on record, this Court cannot interfere in second appeal.

10. Having considered the entire material on record, I am of the considered view that both the courts below have rightly considered the evidence in light of the legal position and there is no perversity or illegality in reading the [2025:RJ-JP:23108] (9 of 11) [CSA-348/2016] evidence, therefore, the grounds does not give rise to any substantial question of law as suggested by learned counsel for appellant.

11. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re- appreciate the evidence or facts.

12. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised 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 and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

13. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this [2025:RJ-JP:23108] (10 of 11) [CSA-348/2016] Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. [2025:RJ-JP:23108] (11 of 11) [CSA-348/2016]

14. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

15. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” In view of discussion made hereinabove, the second appeals

16. sans merit and same are liable to be dismissed.

17. In view of above, the second appeal nos. 348/2016 and 336/2016 are hereby dismissed.

18. Misc. application, if any, stands disposed of. CHETNA BEHRANI /85-86 (ASHOK KUMAR JAIN),J