PANDIT BHAGIRATH SHARMA & Ors. v. MURTI SHRI VAKRANGI MATA JI MAHARAJ & Ors.

Plaintiffs/respondents filed a suit for permanent and mandatory injunction in respect of disputed land. The suit was contested by defendants, the trial Court framed seven issues and after considering the evidence on record and submissions of the parties, decided issue Nos.1, 2, 3 and 4 in favour of plaintiffs and issue No.6 against defendants and consequently, decreed the plaintiffs' suit. The First Appellate Court affirmed the finding of the trial Court while dismissing first appeal of defendants, hence, defendants have preferred this second appeal. [2] SB CIVIL SECOND APPEAL 348/2010

I have considered the submissions of the learned counsel for the parties and examined the impugned judgments passed by both the Courts below and I do not find any substantial question of law involved in this second appeal so as to entertain it.

Learned counsel for appellants is unable to point out any illegality or perversity in the finding of both the Courts below or any substantial question of law involved in this second appeal.

Controversial issues involved in the present case are relating to question of fact 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 particularly record [3] SB CIVIL SECOND APPEAL 348/2010 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 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: [4] SB CIVIL SECOND APPEAL 348/2010 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 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 violates legislative intention.

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.”

Hon'ble Supreme Court in Dinesh Kumar Vs. Yusuf Ali, reported in (2010) 12 SCC 740 held that a second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by [5] SB CIVIL SECOND APPEAL 348/2010 ignoring the same.

No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. /KKC/ [6] SB CIVIL SECOND APPEAL 348/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B.CIVIL MISC. STAY APPLICATION NO.1753/2010 IN S.B. CIVIL SECOND APPEAL NO.348/2010 PANDIT BHAGIRATH SHARMA & ORS. Vs. MURTI SHRI VAKRANGI MATA JI MAHARAJ & ORS. DATE: 20.05.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Khalid Mehmood on behalf of Mr. Kunwar Bahadur, for the appellants. Mr. Manmohan Khetan on behalf of Mr. S.K. Jindal, for the respondents. **** 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/