Qadir Najar vs Azam Najar & Ors
2022 Latest Caselaw 1752 j&K/2

                                                                Sr. No. 13
                                                                Regular Cause List
  IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                               CSA No. 36/2018

Qadir Najar                                            ...Petitioner(s)/Appellant(s)

Through:      Mr. N. A. Dandru, Adv.

                                        Vs.
Azam Najar & Ors.                                                 ...Respondent(s)

Through:      Mr. T. A. Lone, Adv.

CORAM:

       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                  ORDER

12.10.2022

1. The instant Civil Second appeal is directed against the concurrent judgments and decrees passed by Sub-Judge Kupwara on 30th November 2012 in civil suit titled as "Azam Najar vs. Qadir Najar & Ors." and passed by the Principal District Judge Kupwara in appeal titled as "Qadir Najar vs. Azam Najar" on 29th October 2018 respectively

2. The facts under the shade and cover of which the instant Civil SecondAppeal is being filed would reveal that the plaintiff-respondent No. 1 herein filed a suit for injunction against the defendant-appellant herein and his two sons for restraining them for causing any interference into his possession qua land measuring 18 marlas covered under Survey No. 245 situated at Hirri, Kupwara. After entering appearance and filing written statementsby the petitioner herein to the suit, the Trial Court framed following four issues:-

i. Whether the plaintiff is owner in possession of the suit property under survey No.245 measuring 18 marlas and constructed house on it by himself? OPP ii. Whether defendants are interfering into the property without any right and reasons? OPP iii. Whether the suit is not maintainable for non-

joinder or misjoinder of necessary parties? OPD

iv. Whether resjudication is applicable in the suit?

OPD.

3. Upon adjudication of the suit, the Trial Court passed the impugned judgment and decree dated 30th November 2012 decreeing the suit in favour of plaintiff-respondent No. 1 herein.

4. Aggrieved of the judgment and decree dated 30th November 2012 (supra), the defendant appellant herein filed First Appeal before the Appellate Court inter alia on the grounds that the judgment and decree passed by the Trial Court is wrong both factually as well as legally and that the same is ambiguous and against the rights of the appellant having been passed without taking into consideration the facts and circumstances and without scrutinizing all the issues and that the Trial Court did not take into consideration that photo-copy of the document placed on record could not by the plaintiff-respondent No. 1 herein have been relied upon and that the seller of the property from whom the plaintiff-respondent No. 1 claimed to have purchased the land was not impleaded as party in the suit and that the appellant herein was not given a reasonably opportunity to prove the points urged by him in the suit or to produce witnesses in support thereof.

5. The Appellate Court while considering the appeal supra filed by the appellant herein re-evaluated and reconsidered the evidence led by the parties and analyzed the same vis-à-vis the issues framed whereupon the Appellate Court concurred with the findings recorded by the Trial Court holding the plaintiff to be owner in possession of 18 marlas of land and house constructed thereupon covered under Survey No. 245. The Appellate Court while the said issues in light of the evidence led by the plaintiff respondent No. 1 herein observed that the land in question belongs to the plaintiff and out of the said land, 9 marlas of land has been purchased by him from one Abdullah Najar,son of Salam Najar in terms of a registered Sale Deed and 9 marlas had fell to his share on account of it being as an ancestral property. The Appellate Court further observed that the plaintiff has proved the issues with credible evidence that being owner in possession of the suit property, the defendants have been interfering therein without any right or justification.

6. In so far as Issues No. (iii)is concerned, onus to prove whereof had been placed on the defendants, the Appellate Court observed that the defendants did not produce any evidence to prove the said issue.

In so far as Issue No. (iv) is concerned which related to the application of the Principle of Res-judicata to the suit and had to be proved by the defendant, the Appellate Court observed that the said issue stands decided by the Trial Court in terms of order dated 28th August 2007 in favour of plaintiff and against the defendants and that the said decision rendered by the Trial Court had not been questioned at that stage by the defendant-appellant herein, thus requiring no fresh further finding on the said issue.

7. The Appellate Court on the basis of aforesaid analysis concurred with the findings recorded by the Trial Court and upheld the judgment and decree passed by the Trial Court while dismissing the appeal of the appellant herein.

8. In view of the aforesaid backdrop, the moot question which begs consideration of this court in the instant appeal would be as to whether against concurrent judgments and decrees passed by the courts below based on questions of facts passed by the said courts could be challenged before this Court while invoking Section 100 of CPC.

9. Before adverting to the aforesaid question, it would be imperative to refer to the nature and scope of the Second Appeal provided under Section 100 CPC.

10. Section 100 CPC declares that 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. An amendment came to be carried out in Section 100 of the Code of Civil Procedure in terms of Code of Civil Procedure (Amendment Act) 1976 resulting into the following consequences:-

I. The High Court must be satisfied that the case involves a substantial question of law.

II. The memorandum of appeal must precisely states such question.

III. The High Court at the time of admitting the appeal should formulate substantial question of law. IV. The appeal shall be heard only on that question. V. At the hearing of the appeal, the respondent can argue that the case does not involve such question.

VI. The High Court however can hear the Second Appeal on any other substantial question of law not formulated by it, if it is satisfied that that appeal involves such question, however for doing so, the High Court should record reasons.

In view of the aforesaid amendment, it is evident that the scope of Second Appeal came to be considerably narrowed down and substantially curtailed.

Further the expression "substantial question of law" is not defined in the code, yet the test to determine as to what could be a substantial question of law is that the substantial question of law must be debatable, arguable and not free from doubt.

11. Reverting back to the case in hand, indisputably the appellant has questioned in the instant Civil Second Appeal concurrent judgments and decrees passed by the Trial Court as well as Appellate Court. It is also not denied that the said concurrent judgments and decrees have been passed by the courts below on concurrent findings of facts based on evidence and material on record. The concurrent findings of facts recorded by the courts below in the impugned judgments and decrees in view of the settled position of law cannot be thrown challenge to in a Second Appeal under Section 100 CPC, in that, the law is settled and a reference in this behalf to the judgment of the Apex Court reported in M. Nadar Kesavan Nadar vs. Narayanan Nadar Kunjan Nadar (2000) 10 SCC 244would be relevant and germane.

12. The contention raised by the counsel for the appellant that the suit per-

se was not maintainable before the Trial Court though an issue was not framed in this regard cannot be permitted to be raised at this stage in the instant Civil Second Appeal, in that, raising of such a plea

would amount to setting up of a new case, that too now in the Civil Second Appeal in the light of judgment of Apex Court passed in "P. R. Nayak vs. Union of India & Ors. reported in 1972 (1) SCC

332."

13. Having regard to the aforesaid facts and circumstances and the position of law laid down by the Apex Court in the judgments supra, the instant Civil Second Appeal entails dismissal and the substantial questions of law stated in the appeal do not constitute substantial questions of law.

14. Accordingly, the appeal is dismissed.

(JAVED IQBAL WANI) JUDGE SRINAGAR:

12.10.2022
Altaf


                Whether the order is reportable?      Yes