Todabhim, District Karoli, Rajasthan v. Abul Hasan S/o Riyajul Hasan, R/o Kajipada, Todabhim

Judgment

1. Abul Hasan S/o Riyajul Hasan, R/o Kajipada, Todabhim, District Karoli

2. Rabiya Begam W/o Late Abdul Jalil (Deceased), R/o Kajipada, Todabhim, District Karoli

3. Nasim Fatima D/o Abdul Jalil W/o Abdul Baddu, R/o Kajipada, Todabhim, District Karoli

4. Samim Fatima D/o Abdul Jalil W/o Roshan Ahmed, R/o Hingoniya District Jaipur

5. Halima Fatima D/o Abdul Jalil W/o Jakirhussainn, R/o Dholikhar, Karoli

6. Hassen Fatima D/o Abdul Jalil W/o Sirrajuddin, R/o Salempur, Tehsil Gangapurcity, District Sawaimadhopur (Deceased) 6/1. Sirrajuddin S/o Ibrahim Khan, Aged About 73 Years, R/o Adarsh Nagar, Jaipur 6/2. Abdul Ahmi S/o Sirrajuddin, Aged About 36 Years, R/o Adarsh Nagar, Jaipur 6/3. Shiyaul Khan S/o Sirrajjudin, Aged About 34 Years, R/o Adarsh Nagar, Jaipur 6/4. Munnabar D/o Sirrajuddin W/o Ahsan Ali, Aged About 44 Years, R/o Adarsh Nagar, Jaipur [2025:RJ-JP:13040] (2 of 10) [CSA-263/2024] 6/5. Mumtaj D/o Sirrajuddin W/o Altaf Ali, Aged About 42 Years, R/o Adarsh Nagar, Jaipur 6/6. Sehanaj D/o Sirrajuddin W/o Ataur Rehman, Aged About 40 Years, R/o Salempur Tehsil Gangapur City District Sawaimadhopur 6/7. Baskar Ilahi D/o Sirrajuddin W/o Wasid Khan, Aged About 38 Years, R/o Adarsh Nagar, Jaipur

7. Noin Fatima D/o Abdul Jalil W/o Shahajad Ali (Seth), R/o Eida Ki Mori Jaipur

8. Najma Fatima D/o Abdul Jalil, R/o Kajipada, Todabhim, District Karoli

9. Abdul Hai S/o Abdul Jalil, R/o Kajipada, Todabhim, District Karoli

10. Abdul Kayum S/o Abdul Jalil Ali, R/o Kajipada, Todabhim, District Karoli ----Respondents For Appellant(s)

: Mr. L.L. Gupta with Mr. Lakshay Kumar Sharma For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 25/02/2025 Order

1. Instant second appeal is preferred by appellant plaintiffs aggrieved from dismissal of civil regular appeal no. 39/2016 (13/2008) by learned Additional District Judge no.1, Hindaun City, District Karauli on 13.02.2024 affirming the judgment and decree dated 17.04.2008 in civil suit no. 1/2002 passed by learned Civil Judge (Junior Division), Todabhim, District Karauli.

2. Learned counsel for appellant while referring grounds of appeal has submitted that plaintiffs Mukhtyarr Ahmed and Ifitkar Ahmed have filed a civil suit for declaration, partition and [2025:RJ-JP:13040] (3 of 10) [CSA-263/2024] injunction stating that two pieces of land (Bada), shown in city survey were jointly owned by plaintiffs and defendants wherein the plaintiffs have 1/2 share. Learned counsel has further submitted that on earlier occasion a compromise was recorded between the parties about division of these Bada. He further submitted that the plaintiffs were in possession of one of the Bada and when they started to develop the same, the defendants have threatened to dispossess them and ultimately, the plaintiffs have filed a civil suit for declaration, partition and injunction. He also submitted that initial documents of Bada were exhibited as Ex-1 and Ex-2 but later, after correction on 14.02.1950 khasra no. 1554 Badakham (4749-3) was recorded in the name of Iqbal Ahmed, Mukhtyarr Ahmed, Rihazul Hasal and Abdul Hasal and same was exhibited as Ex-3. He further submitted that the plaintiffs were able to establish their right title and claim over the suit property for seeking partition. He further referred the findings of courts below and submitted that they have relied upon Ex. 1 and Ex. 2 but not upon Ex. 3. He also referred Ex. 3 and submitted without any cogent reason disbelieved the same. He further submitted that the plaintiffs were in possession at the time of institution of suit and same was established from the Commissioner report which was also ignored by learned trial court. He also referred the compromise dated 15.08.1994 and submitted that the possession of plaintiff was admitted and admission is best evidence against the person who is making. He further referred the grounds and submitted that both the courts below have drawn a conclusion contrary to oral and documentary evidence, therefore, same is perverse and illegal. At last, he submitted that the grounds give [2025:RJ-JP:13040] (4 of 10) [CSA-263/2024] rise to substantial question of law as suggested by him in Para no. 4 of memo of appeal.

3. In brief, facts giving rise to present litigation are that, two plaintiffs Mukhtyarr Ahmed (since deceased) and Ifitkar Ahmed filed a suit for declaration, partition and permanent injunction against the defendants Abdul Hasan, Abdul Jaleel (since deceased) through LRS, Abdul Hayi and Abdul Kayum. The plaintiffs has averred that two Bada having city survey record and serial no. 1654 and 1660 were jointly owned and shared by ancestors of plaintiffs and defendants. The plaintiffs have 1/2 share. The plaintiffs were using Bada serial no. 1654 for keeping animals and storage of cattle food. In the year 1994 the parties have entered into a compromise but later due to change in behaviour of defendants, the plaintiff was threatened to dispossess and ultimately plaintiff have filed a civil suit. The defendants in their written statement have denied the averment made in plaint.

4. On the basis of pleadings of the parties, 12 issues were framed. Total 7 witnesses were examined by plaintiffs and 20 documents were exhibited whereas 6 documents were examined by defendants and 137 documents were exhibited by defendants.

5. Issue no. 1 to 5 were decided against the plaintiffs. Issue no. 6 was decided in favour of plaintiff whereas issue no. 7 was decided against the plaintiff. Issue no. 8 pertains to limitation and same was decided in favour of defendants and learned trial court has opined that the suit of plaintiff is barred by limitation and same has been filed after a delay of 44 years. Issue nos. 9 and 11 were decided in favour of defendants whereas Issue no.10 against the defendants. As a result, the suit of plaintiff was dismissed. [2025:RJ-JP:13040] (5 of 10) [CSA-263/2024]

6. Aggrieved from the judgment of dismissal, the plaintiffs have filed an appeal under Section 96 of CPC. The findings on issue no.1 to 5 and 7 were decided against the plaintiff whereas issue no. 6 was decided in favour of plaintiff. Learned appellate court has reversed the findings on issue no. 8 and observed that the suit of plaintiff was within limitation. The findings on issue no.10 was recorded against the plaintiff whereas issue no.12 was decided against the defendants. Except reversal of findings on issue no. 8 the findings recorded by learned trial court were affirmed by the first appellate court. Thus, this appeal is filed against the concurrent finding of facts recorded by the courts below.

7. The plaintiffs have claimed that both the parties are descendants of common ancestor whereas after considering the evidence on record, the trial court has opined that the plaintiffs belong to Kazi sect whereas defendants belong to Sayed sect.

8. It means the ancestors and forefathers of both the parties were different. Both the Courts below have drawn a conclusion that parties are not related to each other in any manner. The locus of plaintiff to seek partition is thoroughly based upon accrual of rights as a legal heir of a common ancestor and same is an issue of fact. Both the courts below were in agreement on the issue of fact. The counsel for appellant has failed to establish that plaintiffs and defendants were related to each other and they were part of common ancestor.

9. The counsel for appellant has placed heavy reliance upon Ex. 3 which was considered by the courts below particularly in light of Ex. 1 and Ex. 2. The plaintiffs have claimed their possession on [2025:RJ-JP:13040] (6 of 10) [CSA-263/2024] Bada no. 1654 and not upon Bada no. 1660. The courts below have noticed that there was a discrepancy between pleading and evidence. Both the courts below have drawn a common conclusion that the plaintiffs have failed to establish that they were having possession on Bada no. 1654 and 1660 from time of their forefathers.

10. Two important facts were considered by learned trial court and appellate court and first of them is payment of ₹5,000/- on

08.09.1994 by plaintiffs to defendant no. 2 and compromise between the parties on 15.08.1994. Both the courts below have referred the evidence of plaintiff and opined that there is discrepancy in the evidence of plaintiff on this issue. The trial court and the appellate court have drawn a common conclusion, thus same is a question of fact.

11. The courts below have considered Ex. 1 and 2 vis-a-vis Ex.

3. Both the courts below were of the opinion that Ex. 3 is not a disputed document but the authority of passing such order was questioned by both the courts and it was opined by the trial court that without affording an opportunity to the defendants, this order dated 14.02.1950 was passed, thus having no effect upon the rights of defendants. Herein, learned counsel for appellant has stressed the right of plaintiff on the basis of Ex.3 but this Ex. 3 was found to be recorded at the instance of plaintiff and neither considering the Ex. 1 and Ex. 2 nor opportunity of hearing to defendants. Thus, there is concurrent finding recorded by both the Courts.

12. Learned counsel has further referred that the commissioner report was not considered by the Courts below. The purpose of [2025:RJ-JP:13040] (7 of 10) [CSA-263/2024] commission is not to create any evidence and once the right to seek partition is not established then, the commissioner report, has no relevance. The duty lies upon plaintiff to prove that he has a right to claim partition and in case of refusal by defendant, he has a right to enforce partition by metes and bounds from court. The plaintiff appellant has not established his right or locus to claim partition for land survey no. 1660 and 1654. Both the parties hail from different sects and having no common ancestor, therefore, both the courts below have not committed any perversity.

13. The finding of fact recorded by learned trial court on the basis of evidence of both the parties and same was affirmed by the appellate court. Herein, after perusing the entire record, I am of the considered view that no where it was established that either both the Courts below or any of the court has recorded findings contrary to material on record including evidence both the documentary and oral. Thus, the grounds raised by learned counsel for appellant does not give rise to any substantial question of law as suggested by learned counsel in memo of appeal.

14. 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.

15. 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: [2025:RJ-JP:13040] (8 of 10) [CSA-263/2024] "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."

16. 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 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 [2025:RJ-JP:13040] (9 of 10) [CSA-263/2024] 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.

17. 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: [2025:RJ-JP:13040] (10 of 10) [CSA-263/2024] “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.”

18. 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.”

19. In view of discussion made hereinabove, the instant second appeal sans merit, hence, the second appeal is hereby dismissed.

20. Misc. application, if any, stands disposed of. CHETNA BEHRANI /32 (ASHOK KUMAR JAIN),J