[2025:RJ-JP:13539]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 400/2024
1. Kumher S/o Late Dwarika Prasad, Aged About 50 Years, Resident of Purani Truck Union Karauli Tehsil And District Karauli (Raj)
2. Dharmender Son Of Late Dwarika Prasad, Aged About 43 Years, Resident Of Purani Truck Union Karauli, Tehsil And District Karauli Raj
----Appellants
Versus
1. Firm Jhumarlal Swaroop Lal Tiwadi, Through Partner Pradhyuman Kumar Son of Govind Narayan, Amrish Kumar Son Of Shri Arun Kumar, Resident Of Jaipur (Raj.)
2. Ramswaroop Sharma Son Of Late Chiranjilal, Aged About
60 Years, Resident Of Tambe Ki Tori Karauli, Tehsil And District Karauli Raj
3. Mahesh Chand Son Of Late Chiranjilal, Aged About 55 Years, Resident Of Tambe Ki Tori Karauli, Tehsil And District Karauli Raj
4. Suresh Son Of Late Chiranjilal, Aged About 52 Years, Resident Of Tambe Ki Tori Karauli, Tehsil And District Karauli Raj
5. Dinesh Chand Son Of Late Chiranjilal, Aged About 43 Years, Resident Of Tambe Ki Tori Karauli, Tehsil And District Karauli Raj
6. Uma Sharma D/o Late Chiranjilal, Aged About 65 Years, Resident Of Tambe Ki Tori Karauli, Tehsil And District Karauli Raj
----Respondents
For Appellant(s) : Mr. Rahul Kamwar with Mr. Abhilash Sharma
For Respondent(s) : Mr. J.P. Goyal, Sr. Adv. assisted by Ms. Sakshi Tiwari
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment
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21/01/2025
1. The instant appeal is preferred by appellants-plaintiffs aggrieved from dismissal of Civil Regular Appeal No.39/2024 on 28.04.2024 by learned Judge, Family Court, Karauli affirming the judgment and decree dated 31.03.2023 in Civil Suit No.133/2001 passed by learned Additional Civil Judge, Karauli.
2. Learned counsel for the appellants while referring grounds of appeal have submitted that plaintiffs have filed a civil suit for permanent injunction whereas defendant No.2 has also filed a counter-claim but the trial Court has dismissed both plaint and counter-claim. He further submitted that land bearing Khasra No.5618 was recorded in the name of respondent No.1-Firm but a part of same is in possession of plaintiffs for last forty years and plaintiffs have established this fact from the evidence both oral and documentary before the trial court. He further submitted that the possession of plaintiffs is hostile and continuous which entitles the plaintiffs to claim possessory title as defendant No.1 has never interfered in the possession of plaintiffs of this piece of land. He further submitted that the defendant No.1 in conspiracy with defendant No.2 is trying to threaten and dispossess plaintiffs from the suit property, which forced the plaintiffs to file a suit to protect their possession. He further submitted that the documents submitted by them were well proved but learned trial court has disbelieved those documents, which is contrary to Sections 91 and 92 of Indian Evidence Act. He further submitted that the trial court has misinterpreted Ex.1 (agreement to sale executed by one of the partner of defendant No.1 Firm) and drawn an erroneous
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conclusion against the plaintiffs, though same is sufficient to show legal possession of plaintiffs. He further referred the defence of the defendants and submitted that one of the partner having full right to dispose of the property has executed agreement in favour of plaintiff and on basis of long possession and also on basis of Ex.1 plaintiffs are entitled to protect their possession. He further referred the provision of the Indian Partnership Act, 1932 and submitted that grounds give rise to certain substantial question of law as suggested by him in para No.12 of memo of appeal.
3. Aforesaid contentions were opposed by learned Senior Advocate appearing on behalf of respondent No.1 and he submitted that a previous suit was also filed on same grounds by father of plaintiff but the suit was dismissed. He submitted that the litigation initiated by father of plaintiff has attained finality. He also referred Ex.1 and submitted that there is a fabrication by alteration in Khasra number. He submitted that instead of Khasra No.5616 an alteration was made to make it to 5618. He referred the findings recorded by the trial Court and the Appellate Court about the fabrication in Ex.1 and submitted that only on ground of fabrication, the suit of plaintiff is not maintainable. He further referred the order of Appellate Court and submitted that the suit property is property of defendant No.1(firm) and if any of partner has executed any document without authority, then same is not binding upon firm. He also referred the evidence and findings and submitted that at no point of time, the suit property remained in possession of Pradhyuman Kumar, therefore, the agreement is not a binding piece of document upon defendant No.1.
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4. He also referred two contradicatory grounds raised by plaintiffs-appellants, firstly, ownership on basis of Ex.1 and secondly, ownership on basis of adverse possession. He further submitted that a party like plaintiffs has no right to sail on two boats. He also referred the findings record by the Trial Court and affirmed by the Appellate Court and submitted that there is a concurrent finding of fact and there is no ground of interference under Section 100 of CPC.
5. Heard learned counsel for the appellant and learned Senior Advocate appearing for respondent No.1 and perused the entire record.
6. The facts giving rise to instant second appeal are that plaintiff Dwarika Prasad has filed a suit for permanent injunction against firm Jhumarlal Swaroop Lal Tiwadi contractor and Chiranjilal for seeking permanent injunction. Defendant Nos.1 and 2 have filed separate written statements but defendant No.2 has filed a counter-claim for seeking injunction. Learned trial court has framed as many as four issues. Five witnesses were examined by plaintiff and 35 documents were exhibited whereas five witnesses were examined by defendants and 24 documents were exhibited. Issue No.1 was framed about title and possession of plaintiff and after considering agreement Ex.1, the trial court has decided the issue against the plaintiff. The trial court has opined that the plaintiff has filed a suit after alteration in Ex.1 and originally it was 5616, which was altered to 5618. The trial court has decided issue Nos.2 and 3 together and decided issue No.2 in favour of defendant No.1 but decided issue No.3 against defendant No.2.
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Ultimately the trial court has dismissed the civil suit and counter claim preferred by defendant No.2.
7. An appeal has been preferred by the plaintiffs before learned District Judge, Karauli and same was transferred to Judge, Family Court, Karauli for disposal. Similarly, legal heirs of defendant No.2 Chiranjilal have filed civil regular appeal No.40/2024 from dismissal of counter-claim and learned Appellate Court has dismissed both the appeals affirming the dismissal of civil suit and also counter-claim. Hence this second appeal.
8. A perusal of claim of plaintiff indicates that he is in possession of suit property for last 40 years and his title is hostile to real owner. He claimed title on basis of adverse possession for more than 12 years. The plaintiff has also stated that one of the partner has executed an agreement Ex.1 in favour of plaintiff and he is in possession of the suit property. The defendant No.1 in their reply has submitted that Pradhyuman Kumar has 44% stake whereas another partner Amrish Kumar has 56% stake and no piece of land was sold by firm to plaintiff. In his reply filed by Amrish Kumar categorically denied that respondent - defendant No.1 Firm has ever sold piece of land to the plaintiff. It was also mentioned that the claim of defendant No.2 about sell of property by firm to him also suffers from defect as on date of alleged sell, a partner Savitri Devi was alive.
9. While Considering issue No.1, learned trial court has specifically observed that there is a over writing in Ex.1. The Court has specifically found that instead of 5616 after over writing it was made to 5618. The trial court has referred reply A-7 wherein 5616
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was mentioned. Thus, the claim based on Ex.1 is filed on basis of a fabricated document. Learned trial court has observed that after addition or alteration in document Ex.1, the plaintiff has filed a suit, therefore, he is not entitled to any relief. It is established cannon of law that a party who has not approached court with clean hands is not entitled for any equitable relief.
10. Here in this case, it is also apparent that besides this Ex.1 the plaintiff has claimed adverse possession on basis of continuous and long possession but the case of plaintiff was not proved from the evidence on record. The duty lies upon to establish that his possession was hostile to real owner and despite his challenge, no action was initiated for 12 years.
11. Here in this case, alteration in Ex.1 is sufficient to conclude that Ex.1 is a fabricated document and both the Courts below have not committed any error while recording the findings on basis of material placed on record. Similarly, the plaintiff is in continuous and hostile possession over the suit property is a question of fact and this issue was also decided by the courts below against the plaintiff. Here in this case, the grounds do not give rise to any of substantial question of law either in relation to Indian Partnership Act or Indian Contract Act, or Transfer of Property Act. The facts were well considered by both the courts below and on basis of material on record, the findings were recorded, therefore, no provision of Indian Evidence Act was overlooked by any of the Court.
12. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a
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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. Unless a substantial question of law is framed, the High Court cannot entertain a second appeal.
13. 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."
14. 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
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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.
13.3 In Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (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
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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.
15. 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."
16. 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."
17. Having considering the principle of law to consider second appeal, it is apparent in the instant case that the plaintiff has not been able to establish that both the courts below have committed serious error while deciding the civil suit and the appeal. A second
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appeal under Section 100 of CPC can only be admitted if this Court is satisfied that the case involves a substantial question of law.
18. Here in this case after considering judgment in case of
Hemavathi and Ors. V. Hombegowda and Anr. 2023 INSC 848 after considering judgment in cases of Roop Singh v. Ram Singh, (2000) 3 SCC 708, C.A. Sulaiman vs. State Bank of Travancore, Alwayee (2006) 6 SCC 392 and State Bank of India vs. S.N. Goyal (2008) 8 SCC 9215, it was held that a second appeal cannot be entertained unless the grounds give rise to a substantial question of law.
19. The grounds are not sufficient to formulate any substantial question, therefore, the instant second appeal sans merits and same is liable to be dismissed at admission stage.
20. As a result, the instant second appeal preferred by the appellants-plaintiffs is hereby dismissed with pending application(s), if any.
(ASHOK KUMAR JAIN),J
MR/255
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