Tehsil Kumher District Bharatpur v. Ramo S/o

Judgment

2. Ramo S/o Shri Bhodu, Resident Of Village Nagla Khan, Tehsil Kumher District Bharatpur Natthi S/o Shri Bhodu, Resident Of Village Nagla Khan, Tehsil Kumher District Bharatpur Deceased Through His Legal Heirs:- 2/1. Smt. Sheela Widow Of Late Shri Natthi, Aged About 60 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/2. Kamla Devi D/o Late Shri Natthi, Aged About 42 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/3. Kanhaiya S/o Late Shri Natthi, Aged About 40 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/4. Sanjay S/o Late Shri Natthi, Aged About 32 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/5. Malti Devi D/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/6. Pawan Devi D/o Late Shri Natthi, Aged About 28 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/7. Suman D/o Late Shri Natthi, Aged About 25 Years, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur ----Respondents Connected With S.B. Civil Second Appeal No. 363/2019

Pohap Singh S/o Shri Srichand(Deceased), Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur [2025:RJ-JP:517] (2 of 11) [CSA-362/2019] 1/1. Smt. Savitri Devi W/o Late Shri Sohan Singh Alias Sonvir, Resident Of Neem Darwaja, Bharatpur

2. Rajvir S/o Shri Srichand, Resident Of Village Nagla Khan, Tehsil Kumher District Bharatpur ----Appellants Versus

2. Ramo S/o Shri Bhodu, Resident Of Village Nagla Khan, Tehsil Kumher District Bharatpur Natthi S/o Shri Bhodu(Deceased), Resident Of Village Nagla Khan, Tehsil Kumher District Bharatpur Deceased Through His Legal Heirs 2/1. Smt. Sheela Widow Of Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/2. Kamla Devi D/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/3. Kanhaiya S/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/4. Sanjay S/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/5. Malti Devi D/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/6. Pawan Devi D/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur 2/7. Suman D/o Late Shri Natthi, Resident Of Village Nagla Khan, Tehsil Kumher, District Bharatpur ----Respondents For Appellant(s) : Mr. Dhuruv Atri for Mr. Harendra Singh For Respondent(s) : Mr. Bipin Gupta with Mr. Naman Pareek HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment / Order 02/01/2025

1. These two civil second appeals were preferred by appellants aggrieved from dismissal of two civil regular appeals on

01.05.2019 by learned Additional District Judge No.2, Bharatpur [2025:RJ-JP:517] (3 of 11) [CSA-362/2019] against judgment and decree dated 01.09.2012 passed in two separate civil suits but between the same parties. Since, the parties are common, therefore, these appeals are tagged together.

2. S.B. Civil Second Appeal No. 362/2019 is preferred aggrieved from judgment dated 01.05.2019 in civil appeal no.154/2017 passed by learned Additional District Judge No.2, Bharatpur whereby the appellate court has allowed the appeal of plaintiffs (respondents herein) and decreed the civil suit no.297/2011 for permanent injunction. Learned Civil Judge (Senior Division), Kumher, District Bharatpur has dismissed the civil suit on 01.09.2012 filed by plaintiffs for permanent injunction.

3. S.B. Civil Second Appeal No. 363/2019 is filed by appellants- plaintiffs aggrieved from judgment dated 01.05.2019 in civil regular appeal no.155/2017 whereby the appellate court has allowed the appeal of defendants (respondents herein) filed aggrieved from judgment and decree dated 01.09.2012 in civil suit no.296/2011.

4. Learned counsel for the appellants submits that the appellants have exhibited three documents in support of title of suit property but learned appellate court has not relied upon these documents while considering the appeal of respondents from judgment and decree of trial court. He further submits that the appellants have filed evidence relating to title of the property and proved the title from his own evidence whereas no document was filed by the respondents to contradict the claim of appellants. He also submitted that the appellate court has grossly erred in not relying upon the Exs.A1 to A3 issued by gram panchayat in favour [2025:RJ-JP:517] (4 of 11) [CSA-362/2019] of appellant. He also submitted that these appeals were filed aggrieved from reversal finding recorded by the appellate court and he has suggested several substantial question of law, which arises from grounds raised by the appellants in both the appeals. He further submitted that the appellants have established their title and possession over the suit property and he is entitled for protection and declaration but the appellate court has committed serious error while disbelieving the oral and documentary evidence of appellants.

5. Aforesaid contentions were opposed by learned counsel for the respondents and submitted that the respondents are in possession of suit property for last more than 50 years and this fact was well established from the evidence on record. He also referred the evidence of witness of appellant-Surender Singh and submitted that while acting as sarpanch of village panchayat, Surender Singh has issued patta in favour of his nephew (one of appellant) and due to relationship a forged patta was issued in favour of one of appellant. He further submitted that the cross- examination of Surender Singh also make it clear that the panchayat was not having any authority to issue patta over the land in dispute. He further submitted that the respondents were in possession and same was considered by the appellate court. He specifically submitted that a suit for permanent injunction was filed by respondents whereas another suit was filed by appellants for declaration of title. He also referred the evidence and submitted that the appellate court on the basis of admission of [2025:RJ-JP:517] (5 of 11) [CSA-362/2019] appellant has decided the appeal and there is no perversity or illegality in the order passed by the appellate court.

6. Heard learned counsels for the parties and perused the entire material placed on record.

7. A suit for permanent injunction was filed by Ramo and Natthi against Pohap Singh and Rajvir, wherein a protection to dispossession without adopting due process of law was granted by the appellate court. Whereas another suit for declaration and permanent injunction was filed by Pohap Singh and Rajvir against Ramo and Natthi and same was decreed by the trial court but the appellate court has set aside the judgment and decree, passed by the trial curt.

8. A perusal of evidence of Surender Singh, who was (village head) sarpanch has admitted issuing patta in favour of his nephew. It is also on record that no record relating to resolution or issuance of patta was available with village panchayat. Moreover, this Surender Singh was not having any authority to issue patta as the land does not belong to village panchayat. Considering this evidence, the appellate court has observed that the trial court has overlooked this evidence. Moreover, present appellants were not in possession of the suit property. The land was in possession of respondents and this was also admitted in cross-examination of witness produced by the appellants. The questions of fact were well considered by the appellate court.

9. Considering the entire material on record. It is apparently clear that the trial court has overlooked evidence and misconstrued the evidence while deciding both the civil suit(s) and [2025:RJ-JP:517] (6 of 11) [CSA-362/2019] the appellate court after correct interpretation of evidence has decided the appeals. There is no perversity or illegality while reading the evidence, by the appellate court. Similarly, there is nothing on record on the basis of which we can presume that the appellate court has passed the judgment contrary to the record, therefore, the grounds does not give rise to any of the substantial question of law in both the appeals.

10. 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.

11. 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 [2025:RJ-JP:517] (7 of 11) [CSA-362/2019] principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

12. 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 [2025:RJ-JP:517] (8 of 11) [CSA-362/2019] 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 [2025:RJ-JP:517] (9 of 11) [CSA-362/2019]

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

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:517] (10 of 11) [CSA-362/2019]

13. 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.”

14. 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.” [2025:RJ-JP:517] (11 of 11) [CSA-362/2019]

15. In view of aforesaid, the S.B. Civil Second Appeal No. 362/2019 and S.B. Civil Second Appeal No. 363/2019 preferred by appellants are hereby dismissed.

16. Misc. applications, if any, stands disposed of. Arun/92-93 (ASHOK KUMAR JAIN),J