1 S.B. Civil Second Appeal No. 41/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Civil Second Appeal No. 41/2010 Shafi Mohammad Vs. Modu & Others. Date of Judgment: 01.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Deepak Pareek, for the appellant. BY THE COURT:- Heard learned counsel for the appellant. 2. This is plaintiff's second appeal in a suit for permanent injunction in resepct of property in dispute, which has been dismissed by both the courts below. 3. Trial court framed seven issues. Issues No. 1 and 2 were decided against plaintiff. Issues No. 3 and 4 were decided against defendants. Issues No. 5 to 7 were also decided against defendants. 4. Being aggrieved with the same, plaintiff preferred first appeal before first appellate court. So far as findings with regard to Issues No. 3 to 7 are concerned, defendants did not preferred any appeal or cross objection, therefore, disputed issues were only Issues No. 1 and 2 before the first appellate court. First appellate court dismissed appeal of the 2 S.B. Civil Second Appeal No. 41/2010 appellanat vide judgment dated 20.08.2010, which is under challenge in this second appeal. 5. Both the courts below have discussed the oral evidence adduced on behalf of the both the parties. So far as documentary evidence is concerned both the parties did not produced any sale deed or patta or allotment letter in their favour. Exhibit No. 1 is only a copy of Map, which was annexed with the plaint. 6. Both the courts below recorded a finding that plaintiff was not in possession of disputed piece of land and consequently, dismissed the suit of the plaintiff. 7. Issues No. 1 and 2 both are relating to questions of facts and there is concurrent findings of facts recorded by both the courts below, which cannot be interferred with by this Court in second appeal under Section 100 C.P.C. No perversity has been pointed out in the findings of both the courts below. 8. Second appeal can be entertained only on substantial questions of law. None of questions of law formulated in the memo of appeal can be said to be substantial question of law in the facts and circumstances of present case. 9. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment 3 S.B. Civil Second Appeal No. 41/2010 made in Section 100 of the CPC in 1976, and held as under: “......The High Court, however, seems 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.” 10. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under: “......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....” 11. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report 4 S.B. Civil Second Appeal No. 41/2010 of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: “81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” 12. Since no substantial question of law is involved in this second appeal, therefore, the same is dismissed in limine. (Narendra Kumar Jain),J. Manoj, Item No.25.