Huzoori, Jaipur vs Nagar Nigam, Jaipur Through Mahapaur Nagar Nigam, Jaipur

Gaharana Mr. Ankur Nagar HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 28/03/2025

1. Instant second appeal is preferred by appellants plaintiffs aggrieved from dismissal of civil regular appeal no. 13/2023 on dated 04.08.2023 by learned Additional District Judge no.6, Jaipur Metropolitan-II affirming the judgment and decree dated

12.05.2023 in civil suit no. 215/2006, passed by learned Additional Civil Judge No.1, Jaipur Metro-II.

2. Learned counsel for appellant while relying upon grounds of appeal submitted that the trial court and the appellate court both have drawn an erroneous conclusion without understanding the [2025:RJ-JP:23050] (2 of 8) [CSA-13/2024] legal position. He also submitted that the plaintiff Abdul Shabbir has filed a civil suit for permanent injunction on the basis of possession over the suit property which was protected by him from times immemorial. He also submitted that the plaintiff has already applied for permission to raise construction in the year 2005 and a file is already created in the office of Nagar Nigam. He further submitted that a plan for construction along with relevant documents is submitted by him, which is neither approved nor rejected by Nagar Nigam. He also submitted that the respondent defendant has not appeared to contest the matter before the Trial Court but still the suit was dismissed. He also submitted that when there is an ex-parte evidence supported by documentary proof, then, the trial court is duty bound to accept the evidence as true but the courts below have committed serious error while dismissing the civil suit and first appeal.

3. Learned counsel has further referred judgment in case of Kaikhosrou (Chick) Kavasji Framji & Anr. Vs. Union of India & Anr. 2019 (1) WLC (SC) Civil 768 and submitted that the procedure adopted by the trial court is perverse and illegal and same is followed by first appellate court, therefore, this Hon’ble Court is bound to consider the illegality in adoption of procedure by the courts below. He further referred the Section 41 of the Specific Relief Act and submitted that his case does not fall under the exception and the trial court and appellate court both have committed serious error while not considering the material in right perspective. He also referred the substantial question of law as [2025:RJ-JP:23050] (3 of 8) [CSA-13/2024] arises from the grounds raised by the appellants and prayed that appeal be admitted for detailed hearing.

4. Heard learned counsel for appellant and perused the record and also considered the judgment as referred by the learned counsel for appellant.

5. Brief facts giving rise to instant second appeal are that the plaintiff Abdul Shabbir (since deceased) has filed a suit for permanent injunction for a property situated in Choukdi Topkhana Huzoori, Jaipur having measurement of 38 feet x 25 feet 7 inch total 108 feet 51 inch. The plaintiff has stated that this property was purchased by him and since then in possession of plaintiff. The plaintiff has also filed an application for approval to raise construction on said property, but on the basis of alleged threat to demolish the construction of plaintiff a suit for injunction was filed. The defendants have filed written statement and stated that the suit property is a government property having no connection with Dalpat Singh who sold the property to the plaintiff. The suit property is part of the park under the development of defendant and the plaintiff wants to encroach upon the Government property. The trial court has framed as many as 2 issues. During pendency of civil suit Abdul Shabbir has expired and his legal heirs were substituted. Two witnesses were examined by appellants and 21 documents were exhibited. The trial court after considering the evidence has drawn a conclusion that the said land belongs to park and decided issue no.1 against the plaintiff, resulted in dismissal of civil suit. The plaintiff has filed a regular appeal under Section 96 of CPC but same was also dismissed. [2025:RJ-JP:23050] (4 of 8) [CSA-13/2024]

6. In case of Kaikhosrou (Chick) Kavasji Framji & Anr. Vs. Union of India & Anr. (supra), Hon’ble Supreme Court has considered issue of practice and procedure particularly principles of merger and observed that unless superior court does not go into the merits of the case decided by Subordinate Court nor has recorded findings one or other way on merits then the judgment of Subordinate Court in such case continues to hold the field. Further, observed that if there is a question of ownership of parties then same has to be decided on the basis of pleadings and evidence and not otherwise. The plaintiff has filed a simpliciter suit for injunction and his title is in dispute but no relief for declaration is claimed.

7. Herein this case, after filing of the plaint the defendant has filed a written statement and issues were framed. PW-1 Shahid Khan who is son of original plaintiff was examined as PW-1 and in his cross-examination he admitted that no such document is available on record to show that the property in question belongs to Dalpat Singh. The admission also indicate that only boundary wall and Teanshed is raised on disputed property and there is no construction over the property. The admission also indicate that there is no house in Ex. P/3 to P/10. The admission of PW-1 clearly indicate that the source of land is not established on record, therefore, the plaintiff cannot claim his ownership on the basis of agreement with Dalpat Singh. It is also admitted that Dalpat Singh has executed a sale deed only after filing the present suit. Moreover, there is no reason to show that the suit property in fact belongs to Dalpat Singh. As per averment made in plaint, the [2025:RJ-JP:23050] (5 of 8) [CSA-13/2024] property was purchased by plaintiff, therefore, duty lies upon him to plead and prove the chain of documents so as to show source of the property but he has failed to prove the same and when the legs of plaintiff are weak, he cannot insist upon presumption of ownership in his favour on any government land reserved for park.

8. Even assuming the contentions of learned counsel for appellant, the issue of title or ownership is a question of fact and have to be decided only on the basis of evidence and it is not a legal question, therefore, for factual aspect the First Appellate Court is final court. In case of A. Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. & Ors. AIR 2008 SC 2033, Hon’ble Supreme Court has held that when a cloud is raised on title then a suit for declaration is required to be filed and a simpliciter suit for injunction is not maintainable.

9. Having considered the grounds as raised by learned counsel for appellants plaintiff there are no grounds on the basis of which any substantial question of law can be framed or formulated and unless there is substantial question of law, the S.B. Civil second appeal cannot be admitted for consideration by this court.

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 [2025:RJ-JP:23050] (6 of 8) [CSA-13/2024] 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."

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 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 [2025:RJ-JP:23050] (7 of 8) [CSA-13/2024] 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:23050] (8 of 8) [CSA-13/2024]

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.”

15. In view of discussion made hereinabove, the instant second appeal sans merit and same is liable to be dismissed.

16. Thus, the instant civil second appeal is hereby dismissed with pending application, if any

17. No order as to costs. CHETNA BEHRANI /151 (ASHOK KUMAR JAIN),J