Allahabad High Court
Smt. Chamela vs Ashok Kumar And Another on 4 May, 2022
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SECOND APPEAL DEFECTIVE No. - 371 of 2017
Appellant :- Smt. Chamela
Respondent :- Ashok Kumar And Another
Counsel for Appellant :- Amit Kumar
Hon'ble Rohit Ranjan Agarwal,J.
This is plaintiff-appellant's second appeal filed under Section 100 of Code of Civil Procedure. The appeal was filed without certified copy of the decree along with an exemption application. Time was granted to get the defects removed but four years have elapsed and copy of original decree has not been brought on record.
Plaintiff filed a suit for permanent injunction against defendants to the property in dispute. The trial court framed issues as to the ownership in possession over the property in dispute. The suit was dismissed on 06.08.2013 with a finding that plaintiff was not the owner in possession over the property in dispute. Against which, a Civil Appeal No. 84 of 2013 was filed which was dismissed vide judgment and order dated 15.07.2017. Hence, the present appeal.
I have perused the material on record as well as the judgment passed by both the courts below.
I find that both the courts below have recorded a finding with effect that plaintiff-appellant is not owner in possession over the property in dispute. Once the finding has been returned by the court below, no interference of this Court is required in the finding recorded against plaintiff-appellant.
The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
In view of finding recorded by both courts below, no interference is required as the appeal is concluded by finding by fact. No substantial question of law arises to be adjudicated herein.
The second appeal is dismissed.
Order Date :- 4.5.2022
V.S.Singh
