Rajasthan High Court
Mohan Sharma S/O Late Shri Ramesh ... vs Smt. Vimla Devi W/O Late Shri ... on 5 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 623/2019
Mohan Sharma S/o Late Shri Ramesh Chand Sharma, Resident
Of 9 Vasudev Puri-B, Kalwar Road, Chandni Chowk, Medical
Centre, Jhotwara, Jaipur (Raj)
----Appellant-Plaintiff
Versus
1. Smt. Vimla Devi W/o Late Shri Ramesh Chand, Resident
Of D-8, New Colony, Chandni Chowk, Kalwar Road,
Jhotwara, Jaipur
2. Lokesh Sharma S/o Late Shri Ramesh Chand, Resident Of
D-8, New Colony, Chandni Chowk, Kalwar Road,
Jhotwara, Jaipur
3. Suman Devi W/o Shri Lokesh Sharma, Resident Of D-8,
New Colony, Chandni Chowk, Kalwar Road, Jhotwara,
Jaipur
----Respondents-Defendants
For Appellant(s) : Mr. Dharmendra Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
05/07/2022
1. Appellant-plaintiff has filed this second appeal under Section
100 CPC assailing the judgment and decree dated 07.11.2019
passed in Civil First Appeal No. 120/2019 by the Court of
Additional District Judge No.18, Jaipur Metropolitan, Jaipur,
dismissing the appeal and affirming the judgment and decree
dated 11.03.2019 passed in Civil Suit No.345/14 (366/15) by the
Court of Additional Civil Judge and Metropolitan Magistrate (West),
Jaipur Metropolitan, Jaipur, whereby and whereunder appellant-
plaintiff's suit for permanent injunction has been dismissed.
2. Heard counsel for appellant and perused the record.
(2 of 4) [CSA-623/2019]
3. It appears from record that appellant-plaintiff instituted a
simplicitor civil suit for permanent injunction on 29.09.2014
against his mother, brother and brother's wife alleging inter alia
that the suit property-Plot No.9, Vasudev Puri-B, Kalwar Road,
Chandni Chowk, Jhotwara, Jaipur, was purchased by his father
Sh.Ramesh Chand Sharma through sale deed dated 28.10.1985 in
the name of his mother respondent-defendant No.1 namely Smt.
Vimla Devi. It was averred that plaintiff's father passed away on
21.12.1999 and the mother and brother were inclined to
sell/transfer the suit property, hence they may be restrained not
to sell or alienate the suit property.
4. Respondents-plaintiffs submitted their written statements
that respondent-defendant No.1-mother is the sole owner of the
house in question and on the basis of registered sale deed, she
has executed a registered gift deed dated 09.07.2014 in favour of
her daughter-in-law respondent No.3 namely Smt. Suman Devi. It
was contended that plaintiff has no cause of action to institute the
present suit and the suit has been filed just to harass
respondents.
5. On respective pleadings of parties, issues were made.
6. Plaintiff did not adduce any evidence and his evidence was
closed vide order dated 22.01.2019. In absence of plaintiff's
evidence, defendants were also closed their evidence on
26.02.2019.
7. The trial court dismissed the suit for permanent injunction
vide judgment and decree dated 11.03.2019.
8. Against the judgment and decree dated 11.03.2019,
appellant-plaintiff preferred first appeal. The first appellate court
considered that the plaintiff was given sufficient opportunity to
(3 of 4) [CSA-623/2019]
adduce his evidence and even an opportunity was given on cost,
but neither plaintiff paid the cost nor adduced any evidence. The
cause alleged by the appellant that he met with an accident was
not found proved in absence of any documentary evidence. Finally,
the first appellate court vide judgment and decree dated
07.11.2019 dismissed the first appeal.
9. Having heard counsel for appellant, in the aforesaid facts;
where the plaintiff instituted a simplicitor suit for permanent
injunction, without claiming any declaration or partition of his
share, if any, in the suit property; plaintiff did not produce any
evidence; the first appellate court recorded fact findings that
plaintiff could not show any plausible reason for non-production of
evidence and this is a case of concurrent finding, hence this Court
is not inclined to interfere with the impugned judgments.
10. The substantial questions of law as proposed by appellant-
plaintiff are essentially questions of fact. None of the question of
law, falls within the purview of substantial question of law. In
order to exercise the scope of Section 100 of CPC,
involvement/formulation of substantial question of law is sine qua
non. Otherwise also, it is a case of concurrent findings of facts
even if erroneous cannot be disturbed in exercise of powers under
Section 100 CPC as has been held in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] and
catena of other judgments passed in case of Pakeerappa Rai Vs.
Seethamma Hengsu & Ors., [(2001) 9 SCC 521],
Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC
409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414],
Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434], State of
Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC
(4 of 4) [CSA-623/2019]
595] and D. Doddanarayan Reddy and Ors. Vs. C. Jayarama
Reddy and ors. Reported in [(2020) 4 SCC 659]
11. It is a trite law that in order to exercise the jurisdiction under
Section 100 CPC by the High Court, the involvement/production of
substantial question of law is essential and sine quo non. Without
involvement of any substantial question of law, this Court is of opinion
that this second appeal is not liable to be entertained and deserves to
be dismissed and the same is hereby dismissed.
12. All other pending application(s), if any, also stand(s) disposed of.
13. There is no order as to costs.
(SUDESH BANSAL),J
SACHIN /7
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