Rajasthan High Court
Smt. Premwati Wife Of Shri Pritam ... vs Bachchu Singh Son Of Late Shri ... on 30 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 114/2020
Smt. Premwati Wife Of Shri Pritam Singh, Aged About 65 Years,
Resident Of Gram Golpura (Dehra), Tehsil Kumher, District
Bharatpur (Raj.).
----Appellant
Versus
1. Bachchu Singh Son Of Late Shri Kishan Singh, Aged
About 65 Years, Resident Of Gram Golpura, Tehsil
Bharatpur, District Bharatpur.
2. Harichand Son Of Late Shri Kishan Singh, Aged About 55
Years, Resident Of Gram Golpura, Tehsil Bharatpur,
District Bharatpur.
3. Aran Son Of Bachchu Singh, Aged About 35 Years,
Resident Of Gram Golpura, Tehsil Bharatpur, District
Bharatpur.
4. Jile Singh Son Of Harichand, Aged About 33 Years,
Resident Of Gram Golpura, Tehsil Bharatpur, District
Bharatpur.
----Respondents-Defendants
For Appellant(s) : Mr. Mohit Khandelwal
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
30/06/2022
The appellant has filed an application (I.A. NO.1/2022) for
early listing of the second appeal.
For reasons mentioned in the application, the same is
allowed.
(2 of 4) [CSA-114/2020]
1. Appellant-plaintiff has filed this second appeal under Section
100 CPC, feeling aggrieved by the judgment and decree dated
06.12.2019 passed by the Additional District Judge, No.1
Bharatpur in civil first appeal No.108/2019 (CIS No.134/2019)
affirming the judgment and decree dated 28.08.2019 passed in
Civil Suit No.195/2015 (CIS No.205/15) by Civil Judge, Bharatpur,
whereby and whereunder plaintiffs' civil suit for permanent
injunction has been dismissed.
2. Heard learned counsel for appellant and perused the material
available on record.
3. It appears from the record that the appellant-plaintiff has
filed a simplicitor civil suit claiming her ownership and possession
over the property on the basis of oral gift and subsequently, on
the basis of 'Will' dated 23.04.1999, alleged to be executed in
favour of appellant by her mother. The suit property is an open
plot and defendants are brothers of the plaintiff.
4. Both courts, on appreciation of pleadings and evidence on
record has observed that the plaintiff remained miserably failed to
prove her ownership and possession over the plot in question.
Firstly, it was held that the plaintiff's mother has no right/authority
to execute the alleged 'Will' dated 23.04.1999. Secondly, the
genuineness and execution of 'Will' itself was not found proved. In
absence of any ownership and possession of plaintiff, her
simplicitor suit for permanent injunction was dismissed by the trial
court vide judgment and decree dated 28.08.2019. The appellant
challenged the judgment by way of filing first appeal, the first
appellate court reheard and reappreciate the material available on
(3 of 4) [CSA-114/2020]
record and dismissed the first appeal on merits against finding of
fact, for which second appeal has been filed.
5. It appears that plaintiff has miserably failed to prove any
evidence to show her ownership and possession over the suit plot.
Both courts have recorded fact findings on the basis of evidence
on record. The counsel for appellant could not point out any
perversity in such fact findings. On re-appreciation of evidence at
the stage of second appeal is not permissible.
6. The substantial questions of law as proposed by appellant-
plaintiff are essentially questions of fact requiring re-appreciation
of evidence, which is not permissible within the scope of Section
100 of CPC, unless and until there is some illegality or perversity
in findings. 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 by the Hon'ble Supreme Court 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 595] and C.Doddanarayana Reddy and Ors.
(4 of 4) [CSA-114/2020]
Vs. C. Jayarama Reddy and Ors. Reported in [(2020) 4 SCC
659]
7. Accordingly, this Court is not inclined to entertain this second
appeal, the same is dismissed.
8 There is no order as to cost.
9. All other pending application(s), if any, also stand(s)
disposed of.
(SUDESH BANSAL),J
TN/74
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