Gujarat High Court

Prajapati Becharbhai Harjibhai vs Patel Manjibhai Tulshibhai on 7 February, 2024

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      C/SA/624/2023                                             ORDER DATED: 07/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 624 of 2023

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                      PRAJAPATI BECHARBHAI HARJIBHAI
                                  Versus
                        PATEL MANJIBHAI TULSHIBHAI
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Appearance:
MR.JAY S SHAH(7244) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 07/02/2024

                                  ORAL ORDER

1. The present appeal arises from the impugned

judgment and decree passed by the learned Additional

District Judge, Mehsana in Regular Civil Appeal No.35 of

2017 dated 31.01.2023, whereby the learned appellate Court

below has confirmed the judgment and decree passed by the

learned Additional Senior Civil Judge, Kadi in Regular Civil

Suit No.368 of 2006 dated 28.09.2016 rejecting the suit. It is

this second appeal where there are concurrent findings by the

learned Courts below against the appellant - original

plaintiff.

2. Heard learned advocate.

3.1 Learned advocate Mr.Shah has submitted that the

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dispute between the parties is for release of encroached land

by the respondent after measurement, he has encroached

upon some part of the land of the appellant, the appellant

has filed Misc. Application No.2 of 2004-05 before the learned

Mamlatdar concerned for the same, the learned Mamlatdar

has disposed of the said application and directed the

appellant to approach the concerned learned Civil Court, the

appellant has, therefore, approached the learned Civil Court

concerned by filing a suit being Regular Civil Suit No.368 of

2006 for declaration and permanent injunction, the said suit

is rejected, against which an appeal being Regular Civil

Appeal No.35 of 2017 has been preferred by the original

defendant, which is rejected by the learned appellate Court

below vide judgment dated 31.01.2023, by confirming the

judgment and decree of the learned trial Court.

3.2 He has submitted that the learned appellate Court

below ought to have considered the provisions of Order XLI

Rule 31 of the Code of Civil Procedure, 1908 and framed the

points for determination. He has submitted that the learned

appellate Court below has not framed the points for

determination separately. He has relied upon the decision of

this Court recorded on Second Appeal No.36 of 2015 dated

01.05.2015. He has not argued any other point in the second

appeal. He has submitted that this appeal may be allowed.

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4.1 I have heard learned advocate for the appellant. I

have considered documents annexed with this appeal. I have

perused the judgment and decree passed by the learned

Courts below. From record it transpires that there are

concurrent findings recorded by the learned Courts below.

4.2 From the contentions raised by the learned

advocate for the appellant, the questions before this Court

are as to :-

(i) Whether the learned appellate Court below has to

frame the points for determination or not ?

(ii) Whether the learned appellate Court below has to

frame the separate/new points for determination than the

issues framed by the learned trial Court or not ?

4.3 First of all, we have to focus on the judgment of

the learned trial Court. The learned trial Court has framed

the issues at Exh.28 for its consideration and the learned

trial Court has answered all the issues accordingly.

4.4 Secondly, we have to focus on the judgment of the

learned appellate Court below. It is a matter of record that

the learned appellate Court below has also framed the points

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for determination. Therefore, it cannot be said that the

provisions of Order XLI Rule 31 of the Code of Civil

Procedure, 1908 does not follow by the learned appellate

Court below.

4.5 The requirement of Order XLI Rule 31 of the

Code is the formation of the points of determination by the

appellate Court only. Here, in the present case, the learned

appellate Court below has framed the points for

determination. Therefore, with regard to the question as to

whether the learned appellate Court below has to frame the

points for determination or not is answered in affirmative

accordingly.

4.6 Further, with regard to the second question as to

whether the learned appellate Court below has to frame the

separate/new points for determination than the issues framed

by the learned trial Court or not, for which, it would be

refer to the decision of the Hon'ble Apex Court in the case

of Manjula verus Shyamsundar reported in (2022) 3 SCC 90,

more particularly para : 8 thereof, which reads as under :

"8. Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') provides for filing of an appeal from the decree passed by a court of original jurisdiction.

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Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state

(a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact.

The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re- consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC

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and non-observance of these requirements lead to infirmity in the judgment."

4.7 Thus, from the above facts and circumstances of

the case and considering the impugned judgment and

observations made by the learned lower appellate court, this

Court is of the opinion that the learned appellate Court

below has framed the points and decided it accordingly by

giving cogent and convincing reasons, as recorded in the

impugned judgment. The impugned judgment of the learned

appellate Court below is just, proper, in accordance with law

and in consonance with the material available on the record

as well as after properly appreciating the documentary as

well as oral evidence produced on the record.

4.8 At this stage, it would be fruitful to refer to the

provisions of Section 100 of the Code of Civil Procedure,

1908, which 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

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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."

4.9 It is relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Gurbachan Singh (Dead)

Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Online SC 875, more

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particularly paragraphs 7, 14 and 15 thereof, which read as

under :

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section

100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--

"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of

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law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21)

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC 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 Section 109 of the Code or Article

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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. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law"

as it was employed in the last clause of the then existing Section 100 CPC (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 Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony

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Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5)

'5. ... 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.'

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28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--

"(i) the courts below have ignored material evidence or acted on no

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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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."

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4.10 In view of the above discussion and the judgment

cited hereinabove, when the learned lower appellate court has

not ignored the material evidence and not drawn wrong

inferences from the material available on record, and has

rightly come to the conclusion and properly appreciated the

evidence by framing points of determination under Order XLI

Rule 31 of the Code, this Court does not find any reason to

interfere with the same by framing substantial questions of

law as suggested by the learned advocate for the appellant.