Rajasthan High Court

Sharad Sharma vs Hari Shankar And Another on 11 January, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR
            S.B. Civil Second Appeal No. 520/2015
Sharad Sharma son of Shri Radheyshyam Sharma, Aged about
40 years, resident of House No. 59, Kailashpuri Yojna, Sanghi
Farm, Jaipur through its power of attorney holder Rajendra
Chaudhary son of Shri Badri narayan Chaudhary, aged about 35
years, resident of Gram Gulab Badi, Tehsil Shahpura, District
Jaipur(Raj.)
                                                                   ----Appellant
                                    Versus
1. Hari Shankar son of unknown.
2. Smt. Krishna Sharma wife of Shri Harishankar Sharma.
Both resident of Panchdev mandir, behind Hotel Rajmahal Place,
Saradar Patel Marg, Bais Godown, Jaipur.
                                                                 ----Respondent

For Appellant(s)          :     Mr. M.S. Gurjar.
For Respondent(s)         :

HON'BLE MR. JUSTICE INDERJEET SINGH Order 11/01/2021

1. The suit filed by the appellant-plaintiff has been dismissed by

the learned trial Court vide judgment & decree dated 23.03.2015,

against which the appellant-plaintiff preferred appeal before the

Additional Sessions Judge No. 9, Jaipur Metropolitan which has

also been dismissed vide judgment & decree dated 16.09.2015.

Both these judgments & decree dated 23.03.2015 and 16.09.2015

have been challenged by the appellant-plaintiff in the present

second appeal.

2. Brief facts of the case are that the appellant-plaintiff

(hereinafter to be referred as 'plaintiff') filed a suit for declaration

and permanent injunction stating therein that the plot in dispute

(No. 7) is situated at Sindhu Nagar, Murlipura, Sikar Road, Jaipur,

measuring 311.11 sq. Yards, area of which was revised by the

Jaipur Development Authority and a revised map of the said plot

(2 of 7) [CSA-520/2015]

No. 7 was issued showing the area of the plot as 230.2 sq. Yards.

It was further stated that the plot in question was originally

allotted to Sh. Suresh Kumar Pareek by Sindhu Nagar Grah

Nirman Sahakari Samiti and a patta was also issued in his favour.

The said plot was purchased by the plaintiff from Sh. Suresh

Kumar Pareek and thereafter the plaintiff constructed one room

over the plot in dispute and when the plaintiff started raising

further construction then on 19.06.2005 the respondents-

defendants (hereinafter to be referred as defendants) objected to

the construction being raised by the plaintiff and tried to

dispossess him from the property in dispute. Therefore, the

plaintiff filed a suit before the learned trial Court for restraining

the defendants not to dispossess him from the property in dispute.

3. The defendants filed written statement and stated that the

plot in dispute was allotted in the name of mother of defendant

Smt. Gulab Devi in a scheme No. 3, Murlipura, Sikar Road, Jaipur

by Laxmi Grah Nirman Sahkari Samiti and after death of their

mother the defendants became owner of the plot in dispute and

they are having peaceful possession of it. It was further stated

that the Jaipur Development Authority has also issued a patta in

favour of defendant No. 2 and lastly prayed for dismissal of the

suit.

4. On the basis of the pleadings of the parties the learned trial

Court framed two issues for consideration, which read as under:-

"1. आया वादी प्रतरतिवादीगण क के ववरुद्ध वादपत्र कदपत्र की चरण चरण सी चरण संरण संखया २ मख वरण्णिरति पर वादी क के त निमा्णिण काय्णि व उपय उपयोग मख ें बा बाधा नि नहीी चरण सं कर नि के ें बाें बरति स्ाई प्राापरति कर नि के का अ अध बाधकारी नहर?

                                                (3 of 7)                   [CSA-520/2015]




            --                                                                   वादी
            2.     अ निुरति उपयोष ?"

5.    The   learned       trial        Court   after      providing   a    number       of

opportunities to the plaintiff closed his evidence, which was

challenged by the plaintiff by filing a writ petition before this Court

and this Court while deciding the writ petition granted one last

opportunity to the plaintiff to lead his evidence before the learned

trial Court but the plaintiff even after opportunity being granted by

this Court failed to lead his evidence and therefore, the learned

trial Court again closed his evidence vide order dated 03.05.2013.

Finally the learned trial Court after hearing the parties decided the

issue No. 1 against the plaintiff as he failed to submit evidence

oral as well as documentary in support of his case and dismissed

the suit filed by the plaintiff vide judgment and decree dated

23.03.2015 which was challenged by the plaintiff by filing appeal

which was also dismissed by the learned Appellate Court vide

judgment and decree dated 16.09.2015. Both these judgments

and decree dated 23.03.2015 and 16.09.2015 have been

challenged by the plaintiff in the present second appeal.

6. Heard counsel for the plaintiff and perused the record.

7. The Hon'ble Supreme Court recently in the matter of C.

Doddanarayana Reddy Vs. C. Jayarama Reddy reported in

(2020) 4 Supreme Court Cases 659 has held that the High

Court should be conscious in deciding the appeals where the

concurrent finding of fact has been recorded by the trial Court as

well as the First Appellate Court and held in paras 25-28 as

under:-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the

(4 of 7) [CSA-520/2015]

judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp.347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record."

13. In Ramanuja Naidu v. V. Kanniah Naidu, this Court held: (SCC p.393)

'It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal Under Section 100 of the Code in the way he did.'

14. In Navaneethammal v. Arjuna Chetty, this Court held: (SCC p.166)

'Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.

     15. And again in Secy.,              Taliparamba
     Education Society v.                 Moothedath
     Mallisseri Illath M.N., this         Court held:
     (SCC       p.      486,              para     5)

'5.....The High Court was grossly in error in trenching upon the appreciation of evidence Under Section 100 Code of Civil Procedure and recording reverse finding of fact which is impermissible.

(5 of 7) [CSA-520/2015]

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: (SCC p.725, para 5)

"5. It is not within the domain of the High Court to investigate the grounds on which 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 had 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 of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be 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, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first

(6 of 7) [CSA-520/2015]

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."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"16. When any concurrent finding of fact is assailed in second appeal, the Appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar and Ors. v. Dashrath Narayan Chilwelkar AIR 1943 Nagpur 117 Para 43)".

8. This appeal filed on behalf of the plaintiff deserves to be

dismissed for the reasons; firstly, the plaintiff failed to lead any

evidence oral as well as documentary in support of his case before

the learned trial Court; secondly, both the courts below have

recorded concurrent finding of fact against the plaintiff; thirdly, in

my view no substantial question of law is involved in this appeal

therefore, no interference is required by this Court in this appeal

(7 of 7) [CSA-520/2015]

in view of the judgment passed by the Hon'ble Supreme Court in

matter of C. Doddanarayana Reddy Vs. C. Jayarama Reddy

reported in (2020) 4 Supreme Court Cases 659 (supra).

9. In that view of the matter, the second appeal is dismissed.