L.H. Of Decd. Galabhai Arjanbhai vs District Panchayat
2022 Latest Caselaw 8885 Guj

     C/SA/374/2017                                     ORDER DATED: 07/10/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SECOND APPEAL NO. 374 of 2017
                                With
       CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
                                  In
              R/SECOND APPEAL NO. 374 of 2017
=======================================
        L.H. OF DECD. GALABHAI ARJANBHAI & 1 other(s)
                               Versus
                DISTRICT PANCHAYAT & 2 other(s)
=======================================
Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1,1.2
MR YV VAGHELA(2450) for the Appellant(s) No.
1.1,1.2.1,1.2.2,1.2.3,1.2.4,1.2.5,1.2.6,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
=======================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                          Date : 07/10/2022

                             ORAL ORDER

1. Being aggrieved and dissatisfied by the impugned

judgment and order dated 29.11.2016 passed by the learned 5 th

Additional District Judge and Special Judge (Electricity,

Bhavnagar in Regular Civil Appeal No.5 of 2007, the appellants

have preferred the present second appeal.

2. The short facts of appeal are that the appellants herein -

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original plaintiffs are having residential houses at Village: Dadva

and residing since more than last 30 years, situated at Survey

No.20 and 29/1 and the respondents are original defendants. The

respondent no.1 is the higher supervisory authority over the

respondents no.2 and 3 as per the provisions of the Gujarat

Panchayat Act, 1993 (hereinafter be referred to as "the Act").

The respondent no.1 is responsible to prevent the decision and

action taken by them against the provisions of the Act and to

restrain respondents no.2 and 3 from taking illegal action

undertaken by them. The respondent no.3 issued illegal notices

to remove encroachment to the appellants. The appellants

challenged the notices and action of issuance of such notices by

way of Regular Civil Suit No.191 of 2004 for declaration and

permanent injunction against the defendants to restrain them

from implementing such notice which came to be dismissed.

Against the judgment and decree of the Trial Court, the

appellants preferred the regular civil appeal before the District

Court, which came to be rejected by the lower Appellate Court.

3. Heard Mr.Y. V. Vaghela, learned counsel appearing for the

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appellants and Mr.H. S. Munshaw, learned counsel appearing for

the respondent - Panchayat.

4. Mr.Vaghela, learned counsel appearing for the appellants

has submitted that the appellants are residing at Village: Dadva

for more than last 30 years at survey no.20 and 29 and they are

legal occupiers of the said lands which were converted into non-

agricultural purpose by the competent authority. He has

submitted that the internal road within non-agricultural land is of

the private ownership and hence, the notice issued by the Gram

Panchayat is not tenable in the eyes of law and the Panchayat

has no any right, power or authority to issue such notice. He has

submitted that the impugned proceedings initiated by the

respondent - Panchayat was nothing but an abuse of process of

law and with an ulterior motive and, therefore, it cannot be said

that there was any encroachment made by the appellants. He

has submitted that the notice issued under Section 94(1) was not

tenable at law in view of the amendment of the Act. He has

submitted that the present appeal deserves to be allowed.

5. Per contra, Mr.H. S. Munshaw, learned counsel appearing

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for the respondent - Panchayat has submitted that both the

Courts below have not committed any error by passing the

impugned orders and, therefore, the present appeal being

meritless deserves to be dismissed.

6. Having considered the materials placed on record and the

submissions canvassed by the learned counsel appearing for

both the parties and perused the impugned orders passed by the

Courts below, it appears that there is no infirmity in the orders

passed by the Courts below. While exercising the power under

Section 100 of the Civil Procedure Code, this Court has very

limited scope.

7. It is worthwhile to refer to the decisions of the Apex Court

in the case of Kirpa Ram (Deceased) Through Legal

Representatives and others Vs. Surendra Deo Gaur and

others, reported in AIR 2021 SC 57, in the case of Kashmir

Singh Vs. Harnam Singh reported in (2008) 12 SCC 786 and

in the case of Illoth Valappil Ambunhi Vs. Kunhambu

Karanavan reported in (2020) 18 SCC 317.

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8. In the case of Kirpa Ram (supra), the Hon'ble Apex Court

has held and observed in paragraphs no.21, 22 and 23.

[21] In view of the above, we find that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[22] The argument of Mr. Mehta is that substantial question of law is required to be framed by the High Court while deciding the second appeal. We don't find any merit in the argument. Section 100 of the Code reads as under:

"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

[23] Sub-Section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it

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is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or re- formulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

9. In the case of Illoth Valappil Ambunhi (supra), the

Hon'ble Supreme Court has held and observed in paragraphs

no.9 and 11to 14 as under:-

9. It is true, as rightly argued by learned senior counsel appearing on behalf of the appellant, that the High Court does not, in Second Appeal, embark upon re-analysis of evidence and interfere with the concurrent findings of facts. It is well settled that the condition precedent for interference under Section 100 of the CPC is the existence of a substantial question of law.

11. In Chunilal Sir Chunilal V. Mehta & Sons Ltd. V.

Century Spinning and Manufacturing Co. Ltd., 1962 AIR (SC) 1314, a Constitution Bench of this Court held that the proper test for determining whether a question of law raised in the case is substantial would 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 an open question in the sense that it has not

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finally been settled by this Court or the Privy Council or 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 principle to be applied in determining the question are well settled and there is mere question of applying those principles, or that the plea raised is palpably absurd, the question would not be a substantial question of law. In the aforesaid case, the construction of the Managing agency agreement was not only found to be a question of law, but also neither simple, nor free from doubt and accordingly the High Court was held to be in error in refusing to grant the appellant a certificate that the appeal involved a substantial question of law.

12 Learned senior counsel appearing for the Respondent has cited a very recent judgment of this Court in Gurnam Singh (D) by LRs. and Other vs. Lehna Singh (D) by LRs. reported in 2019(7) SCC 641, where this Court re-affirmed that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the CPC after the 1976 amendment is confined to a substantial question of law. Thus existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

13 In Gurnam Singh s case (supra) this Court held that in a Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the Court were erroneous being :

(1.) contrary to the mandatory provisions of the applicable law; or (2) contrary to the law as pronounced by this Court; or (3) based on inadmissible evidence or no evidence.

14 It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.

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10. In the case Kashmir Singh Vs. Harnam Singh (supra),

the Apex Court has observed in paragraphs no.9, 10, 11, 12, 13

and 15 as under:-

"9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed u/s. 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 held that :

"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

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that the plea raised is palpably absurd the question would not be a substantial question of law."

10. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

11. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V/s. Ramkrishna Govind Morey, 1976 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.(See: Kondiba Dogadu Kadam V/s. Savitribai

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Sopan Gujar and Others, 1999 3 SCC 722).

12. The phrase "substantial question of law", as occurring in the amended Sec. 100 is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Art. 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta V/s. T. Ram Ditta, AIR 1928 PC 172, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Sec. 100 (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao V/s. Noony Veeraju, AIR 1951 Mad 969:

"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."

13. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial as quoted in Sir Chunilal's case (supra).

15. To be "substantial" a question of law must be

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debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely 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. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari V/s. Purushottam Tiwari (deceased) by Lrs., 2001 3 SCC 179).

11. Considering the questions suggested by the learned

counsel appearing for the appellants, it does not require any

further hearing or re-determination. The question is practically

covered by the decision of the highest court and/or there is no

further determination of any of the questions suggested by the

learned counsel is required. Considering the test which is

enumerated by the Hon'ble Apex Court in Sir Chunilal V.

Mehta & Sons Ltd. V. Century Spinning and

Manufacturing Co. Ltd., reported in 1962 AIR (SC) 1314 for

determining whether a question of law raised in a given case is

substantial question. The substantial question of law must be

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debatable, not previously settled by law of the land or a binding

precedent, and must have a material bearing on the decision of

the case, if answered either way, insofar as the rights of the

parties before it are concerned. To be a question of law

"involving in the case" there must be first a foundation for it laid

in the pleadings and the question should emerge from the

sustainable findings of fact arrived at by court of facts and it

must be necessary to decide that question of law for a just and

proper decision of the case. An entirely 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. It will, therefore,

depend on the facts and circumstance of each case whether a

question of law is a substantial one and involved in the case, or

not; the paramount overall consideration being the need for

striking a judicious balance between the indispensable obligation

to do justice at all stages and impelling necessity of avoiding

prolongation in the life of any lis.

12. Therefore, in the general rule, the High Court will not

interfere with concurrent findings of the Courts below. But it is

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not an absolute rule. Some of the well recognized exceptions are

where (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. When we

refer to 'decision based on no evidence', it not only refers to

cases where there is a total dearth of evidence, but also refers to

any case, where the evidence, taken as a whole, is not

reasonably capable of supporting the finding.

13. In view of the aforesaid settled principles, it appears that

the both the Courts below have not committed any error either

on facts or on law. As per the decision of the Apex Court in the

case of Gurnam Singh (D) by LRs. and Other vs. Lehna

Singh (D) by LRs. reported in 2019(7) SCC 641, framing of

substantial question of law is a sine qua non for the exercise of

the jurisdiction under Section 100 of the Code. Considering the

issue involved in the present appeal and the contentions raised

on the basis of the factual aspects of the matter, this Court not

thought it fit to enter into the factual aspects which does not

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involved any substantial question of law. It is also relevant to

note here that the re-appreciation of the evidence is

impermissible by this court while exercising the jurisdiction

under Section 100 of the Code.

14. Considering all the contentions raised in the appeal and the

aforesaid decisions of the Hon'ble Supreme Court, this Court has

no hesitation to show that in the present appeal no substantial

question is involved as the question suggested by the appellants

with regard to more or less re-appreciation of the evidence

recorded by the Trial Court which is permissible under the

jurisdiction of Section 100 of the Code.

15. The concurrent findings recorded by the courts below were

findings of fact and were in the realm of appreciation of

evidence. No perversity was demonstrated in the findings arrived

at. There was no mis-reading of evidence or non consideration of

any material evidence. The findings so arrived at were not liable

to be interfered with in the second appellate jurisdiction by this

Court. No question of law much less any substantial question of

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law arises in the Second Appeal.

16. Hence, the appeal stands dismissed.

17. Pending civil applications shall stands disposed of

accordingly.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL