Madhya Pradesh High Court
Omprakash vs Vishnuprasad S/O Siddhanath (Died) ... on 28 March, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 626 of 2023
OMPRAKASH AND OTHERS
Versus
VISHNUPRASAD S/O SIDDHANATH (DIED) THROUGH LRS. GANGABAI
AND OTHERS
Appearance:
Shri Akhilesh Kumar Saxena - advocate for the appellants.
Ms. Anushka Bhargava, learned Panel Lawyer for the State.
Heard on : 4.03.2025
Pronounced on : 28.03.2025
ORDER
The appellants have preferred the present Second Appeal under Section 100
of CPC being aggrieved by the Judgment and Decree dated 28.11.2022, passed in
Civil Regular Appeal No. 26/2017, passed by Second District Judge, Sarangpur,
Distt Rajgarh whereby appeal filed by the appellant has been dismissed by
affirming the Judgment and Decree passed by the Learned Civil Judge Class-l,
Sarangpur, Distt.- Rajgarh in Civil Original Suit No. 19A/2014, dated 28.11.2016.
2. Facts of the case in brief are that the respondents/defendant had filed suit
for declaration of ownership, partition and permanent injunction on the basis of
easement rights claiming 29 X 33 Sq. Ft. land in survey no.811, having 0.0009
Hectare, total land, situated in Tehsil Sarangpur, Distt- Rajgarh (Biora). In the
plaint the respondent/plaintiff had stated that, they are representative of the Nath
community and a 200 years old cemetery (graveyard) of their ancestors is situated
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in the Sarangpur and for their worship and function they have to use this path to
reach at cemetery. But, the father of the defendants/appellants 1 & 2 has moved an
application for NOC on the land for the construction in the year 2010 and on that
the plaintiffs/respondents have raised their objection but the learned Tehsildar
Court rejected the application without completion of the enquiry in influence of the
defendants/appellants and a NOC also been obtained by the defendant/appellant.
Hence, appellant filed a suit for declaration , partition and permanent injunction.
3 In the reply of the plaint, the appellants/defendants no. 1 & 2. denied the
facts and stated that the plaintiffs/respondents are not representative of the Nath
community and the Map present in the plaint is also not authenticated by any
authorized person. It is also mentioned in the written statement that, the way
showed in the Map, had never been in existence and earlier in 1994 also there was
a dispute with respect to the right of way on the land and was denied at that time
also and since then the appellants/defendants continuously denying the way from
the land therefore the suit filed by the plaintiff/respondents is time barred. The
learned trial court after perusing the pleadings framed as many as 3 issues and out
of which 2 were declared proved and on that basis another issue of relief was
decided in favour of the plaintiffs/respondents. In the judgment the learned trial
court decreed the case and pronounced the judgment permanently restraining the
appellants/defendants in the easement right of the plaintiff/respondents.
4. Being crestfallen by the judgment/decree, the defendants/appellants filed
first appeal before Additional District Judge, Sarangpur, Distt.- Rajgarh (Biora). In
the first appeal they stated that the learned trial court has not framed the issue on
limitation and maintainability. It is also stated that the land (plot) in question was
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purchased by the appellants/defendants through registered sale deed. In reply to
the first appeal the respondents/plaintiffs supported the judgment and decree
passed by the learned trial court. The learned First appellate court dismissed the
appeal and confirmed the judgment passed by the learned trial court.
5. Learned counsel for the appellants expostulated that the learned courts
below have erred in not framing the issues on limitation and maintainability of the
suit because the dispute has risen in the year 1992, the PW-1 has accepted in Para-
13 of the cross examination that in the year 1992 on his complaint the wall of
appellants/defendant no. 1 & 2 was broken and since then the appellants/defendant
are denying the way of right on their legally purchased plot, but the suit is filed in
the year 2010, and according to the section 25 of the Limitation Act there is no
absolute and indefeasible right accrued in favour of the respondents/plaintiffs. The
issue on limitation was not framed, instead of objection made in the written
statement by the appellants/defendants. The learned trial courts have erred in
relying the Map produced by the respondents/plaintiff because the Map is not
authenticated and has not been passed by any Govt. authority. The, PW-4, present
Patwari in his cross-examination Para- 4 has accepted that the land on which the
cemetery is situated is not belonged to Nath community and further in Para-4 he
has accepted that in the Map in question there is no sign of the way and instead of
this submission made by the PW-4 the learned trial court and the appellate court
erred in allowing the suit.
6 Per contra , it is submitted by counsel for respondent that both the Courts
below after considering the evidence and material on record in toto have given
concurrent findings of fact that the appellants has failed to prove their case. In this
case, as no perverse finding was given by the Courts below and no substantial
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question of law is involved in this appeal, the appeal may be dismissed in limine.
7. Heard learned counsel for the parties and perused the record.
8. The Second Appeal is filed under the provisions of Section 100 of CPC which
provides that Second Appeal is entertainable by the High Court if it is satisfied that the
case involves a substantial question of law. Section 101 of CPC provides that no
second appeal shall lie except on the ground mentioned in section 100 of CPC.
9. At the outset the question of entertaining the second appeal is required to be
considered. On this aspect the Hon'ble Supreme Court in the case of Municipal
Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held as
under:-
"16. Thus, it is evident from the above that the right to appeal is a creation
of statute and it cannot be created by acquiescence of the parties or by the
order of the court. Jurisdiction cannot be conferred by mere acceptance,
acquiescence, consent or by any other means as it can be conferred only by
the legislature and conferring a court or authority with jurisdiction, is a
legislative function. Thus, being a substantive statutory right, it has to be
regulated in accordance with the law in force, ensuring full compliance with
the conditions mentioned in the provision that creates it. Therefore, the
court has no power to enlarge the scope of those grounds mentioned in the
statutory provisions. A second appeal cannot be decided merely on equitable
grounds as it lies only on a substantial question of law, which is something
distinct from a substantial question of fact. The Court cannot entertain a
second appeal unless a substantial question of law is involved, as the second
appeal does not lie on the ground of erroneous findings of fact based on an
appreciation of the relevant evidence. The existence of a substantial question
of law is a condition precedent for entertaining the second appeal; on failure
to do so, the judgment cannot be maintained. The existence of a substantial
question of law is a sine qua non for the exercise of jurisdiction under the
provisions of Section 100 CPC. It is the obligation on the court to further
clear the intent of the legislature and not to frustrate it by ignoring the same.
(Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai v. Bakshi Inderjit
Singh; Manicka Poosali v . Anjalai Ammal ; Sugani v . Rameshwar Das;
Hero Vinoth v. Seshammal; P. Chandrasekharan v. S. Kanakarajan; Kashmir
Singh v. Harnam Singh; V. Ramaswamy v. Ramachandran and Bhag Singh
v. Jaskirat Singh.)
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17. In Mahindra & Mahindra Ltd. v. Union of India this Court observed*:
" 12. ... it is not every question of law that could be permitted to be raised in
the second appeal. The parameters within which a new legal plea could be
permitted to be raised, are specifically stated in subsection (5) of Section
100 CPC. Under the proviso, the Court should be 'satisfied' that the case
involves a 'substantial question of law' and not a mere 'question of law'.
The reason for permitting the substantial question of law to be raised, should
be 'recorded' by the Court. It is implicit therefrom that on compliance of the
above, the opposite party should be afforded a fair or proper opportunity to
meet the same. It is not any legal plea that would be alleged at the stage of
second appeal. It should be a substantial question of law. The reasons for
permitting the plea to be raised should also be recorded." [Kshitish Chandra
Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, pp. 445- 46, para 10].
18. In Madamanchi Ramappa v. Muthaluru Bojjappa this Court observed:
(AIR pp. 1637-38, para 12):
"12. ... Therefore, whenever this Court is satisfied that in dealing with a
second appeal, the High Court has, either unwittingly and in a casual
manner, or deliberately as in this case, contravened the limits prescribed by
Section 100, it becomes the duty of this Court to intervene and give effect to
the said provisions. It may be that in some cases, the High Court dealing
with the second appeal is inclined to take the view that what it regards to be
justice or equity of the case has not been served by the findings of fact
recorded by courts of fact; but on such occasions it is necessary to remember
that what is administered in courts is justice according to law and
considerations of fair play and equity however important they may be, must
yield to clear and express provisions of the law. If in reaching its decisions
in second appeals, the High Court contravenes the express provisions of
Section 100, it would inevitably introduce in such decisions an element of
disconcerting unpredictability which is usually associated with gambling;
and that is a reproach which judicial process must constantly and
scrupulously endeavour to avoid."
19. In Jai Singh v. Shakuntala (SCC pp. 637-38, para 6) this Court held as
under:
"6 . ... it is only in very exceptional cases and on extreme perversity that the
authority to examine the same in extenso stands permissible -- it is a rarity
rather than a regularity and thus in fine it can be safely concluded that while
there is no prohibition as such, but the power to scrutiny can only be had in
very exceptional circumstances and upon proper circumspection."
Further Hon'ble Apex Court endorsing its another judgment pen down as
under:
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23. In Kulwant Kaur v. Gurdial Singh Mann (SCC pp. 278-79, para 34) this
Court observed as under:
" 34. Admittedly, Section 100 has introduced a definite restriction on to the
exercise of jurisdiction in a second appeal so far as the High Court is
concerned. Needless to record that the Code of Civil Procedure
(Amendment) Act, 1976 introduced such an embargo for such definite
objectives and since we are not required to further probe on that score, we
are not detailing out, but the fact remains that while it is true that in a
second appeal a finding of fact, even if erroneous, will generally not be
disturbed but where it is found that the findings stand vitiated on wrong test
and on the basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court in our view will be
within its jurisdiction to deal with the issue. This is, however, only in the
event such a fact is brought to light by the High Court explicitly and the
judgment should also be categorical as to the issue of perversity vis-à-vis the
concept of justice. Needless to say however, that perversity itself is a
substantial question worth adjudication -- what is required is a categorical
finding on the part of the High Court as to perversity.
... The requirements stand specified in Section 103 and nothing short of it
will bring it within the ambit of Section 100 since the issue of perversity will
also come within the ambit of substantial question of law as noticed above.
The legality of finding of fact cannot but be termed to be a question of law.
We reiterate however, that there must be a definite finding to that effect in
the judgment of the High Court so as to make it evident that Section 100 of
the Code stands complied with ."
10. In view of the aforesaid principle settled by Hon'ble Apex Court, every question
of law could not be permitted to be raised in Second Appeal, there ought to be
substantial question of law for entertaining such appeal and such appeal is entertainable
in very exceptional cases and on extreme perversity. It is a rarity rather then regularity
but where it is found that the findings stand vitiated on wrong test and on the basis of
assumptions and conjectures and resultantly there is an element of perversity involved
therein, then Second Appeal should be entertained. In other words, perversity itself is a
substantial question worth adjudication. Here in this appeal, it is to be seen as to
whether any perversity was committed by the Courts below and as to whether any
substantial question of law is involved in this Second Appeal?
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11. So far as the 'perversity' is concerned, the Supreme Court in the case ofDamodar
Lal Vs. Sohan Devi and others reported in (2016) SCC 78 has held as under :
"8. 'Perversity' has been the subject matter of umpteen number of decisions
of this Court. It has also been settled by several decisions of this Court that
the first appellate court, under Section 96 of The Civil Procedure Code,
1908, is the last court of facts unless the findings are based on evidence or
are perverse.
9. In Krishnan v. Backiam and another [2207 INSC 908], it has been held at
paragraph-11 that:
"11. It may be mentioned that the first appellate court under Section 96 CPC
is the last court of facts. The High Court in second appeal under Section
100 CPC cannot interfere with the findings of fact recorded by the first
appellate court under Section 96 CPC. No doubt the findings of fact of the
first appellate court can be challenged in second appeal on the ground that
the said findings are based on no evidence or are perverse, but even in that
case a question of law has to be formulated and framed by the High Court to
that effect. ..."
10. In Gurvachan Kaur vs. Salikram (Dead) through Lrs. [2010 (15) SCC
530] this principle has been reiterated:
"It is settled law that in exercise of power under Section 100 of the Code of
Civil Procedure, the High Court cannot interfere with the finding of fact
recorded by the first appellate court which is the final court of fact, unless
the same is found to be perverse. This being the position, it must be held that
the High Court was not justified in reversing the finding of fact recorded by
the first appellate court on the issues of existence of landlord-tenant
relationship between the plaintiff and defendant and default committed by
the latter in payment of rent."
12. Hon'ble Apex Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu Dead
by L.R.s and others reported in (2001) 9 SCC 521 has again held as under :
" 2...But the High Court in exercise of power under Section 100 CPC cannot
interfere with the erroneous finding of fact howsoever the gross error seems
to be...."
13. Further in this context, Hon'ble Supreme Court, in the case of Gurdev Kaur vs.
Kaki reported in (2007) 1 SCC 546, has held as under :.
" 46. In Bholaram v. Amirchand (1981) 2 SCC 414 a three- Judge Bench of
this Court reiterated the statement of law. The High Court, however, seems
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to have justified its interference in second appeal mainly on the ground that
the judgments of the courts below were perverse and were given in utter
disregard of the important materials on the record particularly
misconstruction of the rent note. Even if we accept the main reason given by
the High Court the utmost that could be said was that the findings of fact by
the courts below were wrong or grossly inexcusable but that by itself would
not entitle the High Court to interfere in the absence of a clear error of law.
47. In Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC
438], a three judge Bench of this Court held: (a) that the High Court should
be satisfied that the case involved a substantial question of law and not mere
question of law; (b) reasons for permitting the plea to be raised should also
be recorded; (c) it has the duty to formulate the substantial questions of law
and to put the opposite party on notice and give fair and proper opportunity
to meet the point. The Court also held that it is the duty cast upon the High
Court to formulate substantial question of law involved in the case even at
the initial stage.
48. This Court had occasion to determine the same issue in Dnyanoba
Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471 . The Court
stated that the High Court can exercise its jurisdiction under Section
100 C.P.C. only on the basis of substantial questions of law which are to be
framed at the time of admission of the second appeal and the second appeal
has to be heard and decided only on the basis of the such duly framed
substantial questions of law.
49. A mere look at the said provision shows that the High Court can
exercise its jurisdiction under Section 100 C.P.C. only on the basis of
substantial questions of law which are to be framed at the time of admission
of the second appeal and the second appeal has to be heard and decided only
on the basis of such duly framed substantial questions of law. The impugned
judgment shows that no such procedure was followed by the learned Single
Judge. It is held by a catena of judgments by this Court, some of them
being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC
438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment
rendered by the High Court under Section 100 C.P.C. without following the
aforesaid procedure cannot be sustained. On this short ground alone, this
appeal is required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35 the Court has
observed that it is mandatory to formulate the substantial question of law
while entertaining the appeal in absence of which the judgment is to be set
aside. In Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC
713 and Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the Court
reiterated the statement of law that the High Court cannot proceed to hear a
second appeal without formulating the substantial question of law. These
judgments have been referred to in the later judgment of K. Raj and Anr. v.
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Muthamma (2001) 6 SCC 279 . A statement of law has been reiterated
regarding the scope and interference of the Court in second appeal
under Section 100 of the Code of Civil Procedure.
51. Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs.
(2001) 3 SCC 179, another three-Judge Bench of this Court correctly
delineated the scope of Section 100 C.P.C.. The Court observed that an
obligation is cast on the appellant to precisely state in the memorandum of
appeal the substantial question of law involved in the appeal and which the
appellant proposes to urge before the Court. In the said judgment, it was
further mentioned that the High Court must be satisfied that a substantial
question of law is involved in the case and such question has then to be
formulated by the High Court. According to the Court 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 of Article 133(1) (a) of the
Constitution.
52. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the
Court came to the conclusion that the finding thus reached by the first
appellate court cannot be interfered with in a second appeal as no substantial
question of law would have flowed out of such a finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762],
this Court has held that the High Court in its jurisdiction under Section
100 C.P.C. was not justified in interfering with the findings of fact. The
Court observed that to say the least the approach of the High Court was not
proper. It is the obligation of the Courts of law to further the clear
intendment of the legislature and not frustrate it by excluding the same. This
Court in a catena of decisions held that where findings of fact by the lower
appellate Court are based on evidence, the High Court in second appeal
cannot substitute its own findings on reappreciation of evidence merely on
the ground that another view was possible.
54. In the same case, this Court observed that in a case where special leave
petition was filed against a judgment of the High Court interfering with
findings of fact of the lower Appellate Court. This Court observed that to
say the least the approach of the High Court was not proper. It is the
obligation of the Courts of law to further the clear intendment of the
legislature and not frustrate it by excluding the same. This Court further
observed that the High Court in second appeal cannot substitute its own
findings on reappreciation of evidence merely on the ground that another
view was possible.
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55. This Court again reminded the High Court in Commissioner, Hindu
Religious & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232]
that the High Court has no jurisdiction in second appeal to interfere with the
finding of facts.
56. Again, this Court in the case of State of Kerala v. Mohd. Kunhi [(2005)
10 SCC 139] has reiterated the same principle that the High Court is not
justified in interfering with the concurrent findings of fact. This Court
observed that, in doing so, the High Court has gone beyond the scope
of Section 100 of the Code of Civil Procedure.
57. Again, in the case of Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC
553], this Court observed that the High Court was not justified in interfering
with the concurrent findings of fact. This Court observed that it is well
settled that even if the first appellate court commits an error in recording a
finding of fact, that itself will not be a ground for the High Court to upset the
same.
58. Again, in the case of Harjeet Singh v. Amrik Singh [(2005) 12 SCC
270], this Court with anguish has mentioned that the High Court has no
jurisdiction to interfere with the findings of fact arrived at by the first
appellate court. In this case, the findings of the Trial Court and the lower
Appellate Court regarding readiness and willingness to perform their part of
contract was set aside by the High Court in its jurisdiction under Section
100 C.P.C.. This Court, while setting aside the judgment of the High Court,
observed that the High Court was not justified in interfering with the
concurrent findings of fact arrived at by the Courts below.
59. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered
on 6.2.2006, this Court found serious infirmity in the judgment of the High
Court. This Court observed that it suffers from the vice of exercise of
jurisdiction which did not vest in the High Court. Under Section 100 of the
Code (as amended in 1976) the jurisdiction of the Court to interfere with the
judgments of the Courts below is confined to hearing of substantial
questions of law. Interference with the finding of fact by the High Court is
not warranted if it invokes reappreciation of evidence. This Court found that
the impugned judgment of the High Court was vulnerable and needed to be
set aside.
14. With regard to fact findings of trial Court as well as the appellate Court in order to
frame substantial question law in second appeal, the following view of the Hon'ble
Apex Court rendered in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar;
(1999) 3 SCC 722, is condign to quote here under:-
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"5. 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 are possible, one drawn by the
lower appellate court is binding on the High Court in second appeal.
Adopting any other approach is not permissible. The High Court cannot
substitute its opinion for the opinion of the first appellate court unless 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 without evidence.
6. If the question of law termed as a substantial question 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, its merely wrong
application on the facts of the case would not be termed to be a substantial
question of law. Where a point of law has not been pleaded or is found to be
arising between the parties in the absence of any factual format, a litigant
should not be allowed to raise that question as a substantial question of law
in second appeal. The mere appreciation of the facts, the documentary
evidence or the meaning of entries and the contents of the document 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. Ramkrishna Govind Morey [AIR 1976 SC
830]held that whether the trial court should not have exercised its
jurisdiction differently is not a question of law justifying interference"
15. In this regard, in the case of Laxmidevamma v. Ranganath; (2015) 4 SCC 264,
again the Apex court has held as under:-
"16. Based on oral and documentary evidence, both the courts below have
recorded concurrent findings of fact that the plain-tiffs have established their
right in A schedule property. In the light of the concurrent findings of fact,
no substantial questions of law arose in the High Court and there was no
substantial ground for reappreciation of evidence. While so, the High Court
proceeded to observe that the first plaintiff has earmarked the A schedule
property for road and that she could not have full-fledged right and on that
premise proceeded to hold that declaration to the plaintiffs' right cannot be
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granted. In exercise of jurisdiction under Section 100 CPC, concurrent
findings of fact cannot be upset by the High Court unless the findings so
recorded are shown to be perverse. In our considered view, the High Court
did not keep in view that the concurrent findings recorded by the courts
below, are based on oral and documentary evidence and the judgment of the
High Court cannot be sustained."
16. So also the Hon'ble Apex Court in case of Adiveppa & Others Vs. Bhimappa &
Others; (2017) 9 SCC 586 has held as under:-
"17. Here is a case where two Courts below, on appreciating the entire
evidence, have come to a conclusion that the Plaintiffs failed to prove their
case in relation to both the suit properties. The concurrent findings of facts
recorded by the two Courts, which do not involve any question of law much
less substantial question of law, are binding on this Court.
18. It is more so when these findings are neither against the pleadings nor
against the evidence and nor contrary to any provision of law. They are also
not perverse to the extent that no such findings could ever be recorded by
any judicial person. In other words, unless the findings of facts, though
concurrent, are found to be extremely perverse so as to affect the judicial
conscious of a judge, they would be binding on the Appellate Court."
17. In view of the aforesaid pronouncements the material available in second appeal
is scrutinized. In adjudicating this appeal the moot question is with regard to easement
right between the appellants and respondents over the disputed property. On this
question, the fact finding of learned Trial Court as well as learned Appellate Court is
infallible and on the basis of this finding, the respondent plaintiffs suit has been
decreed by the learned trial Court and affirmed by the learned appellant Court.
Learned Trial Court as well as appellate Court have considered the evidence of both the
parties in proper perspective and thereafter, considering the provisions of Easement
Act, adjudicated that the easement right of respondents have attained maturity. As such,
no perverse finding was given by the Courts below and the finding is in accordance
with law and evidence. Likewise, the finding of learned Trial Court regarding
restraining the appellant to create obstacles in the use of respondents of their rights is
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also found infallible in the eyes of law and facts.
18. In upshot of the aforesaid proposition of law, having examined the facts and
circumstances of the case in this second appeal, this Court is of the considered opinion
that no perverse finding was rendered by the trial Court as well as the appellate Court,
therefore, no substantial question of law arises in this case. Both the Courts have
recorded the concurrent findings. Accordingly, this Court is of the view that
concurrent findings of trial Court as well as appellate Court do not warrant any
interference and in the result thereof, this Second Appeal is hereby dismissed.
(PREM NARAYAN SINGH)
JUDGE
VD
