E [ V ‘ ,w W V ”G? / m i iN THE H!GH COURT OF JUDICATURE AT B!!LASPUR CHHATI'EFARH sfmo. 2% 92006 ‘Singte Bencli : /N‘andiai Jaiswa'l, Aged about 5Q years APPtLLAN l , \ i (FiAiNTiFF Sio. Late Shivratan Jaiswai, Rio, 'v'i'liage A'khoraka‘la, P.S. Ambikapur, Tahsii Surajpqn Dismct Surguja (CG) VERSUS Bandriu Jaiiswai, sz’o. Shivratan Jaiswai, Aged about 65 years, R/fo. 'v‘iiiage Kaiya'npur, RS. and Tahsil Surajpur, Diétrict Surguja (CG) .$antQshi Ram JaisWai, Aged about 58 years, S/‘o. Shi§rratan Jaiswai, Rio. Viiiage Akhorakaia;_ RS, Ambikapur, Tahsii Surajpur, District Surguja {CG} Smt. Sonu Jaiswa‘l, Aged about 53 year; Dio. Late Navratan Jaiswal; Rio. 'V'i'liage ‘k'aiyanpur, RS. & Tahsii Surajaur; Distridt: Surguja (CG) State 0f ChhattiSgarh, Inrough: Coiiector, Surguja, Disttict I Surguja (Ch'natti'sgarh) ‘ SECQND ARPEAL UNDER SECTIQN 109 OF C!V!L a PRO€EDURE €Q§E 111 HIGH COURT OF CHHATTISGAR AT BILASPUR SECOND APPEAL N0.220 OF 2006 v Nandlal Jaiswal Vs. Bandhu Jaiswal and others Aypearance: Shri Manoj Paranjpe and Shri Vaibhav Govanihan. cmmscl for the Appenant. ORAL ORDER (31 3 200 Sunil Rumm- Sinha. J. (1) This is the plainu'ii’s second appeal Ee’d >u/s IOO-o‘f the Code of Civil Procedum. The plainti§ lost in both the courts. This appeal axises out of judgment and decree dated 27.2.2006 passed by 11nd Addl. Dishict Judge (F.T.C\. Surainur. Distt. VSarguja (C.G), in Civil Appeal No.5-Af2005. arising out of judgment and decree dated 02.9.2003 passed in Civil Suit No.86— Al2002 by the Civil Judge, Class-II, Surajpur, Distt‘. Sarguja (cm. (2! L The plaintiE Eed a suit for declaration. partiu‘on and nermanent mgunction m relation to the agricultural lands described m Schedule A at. B of the Plaint Schedule-A mlates to village Akhorakala. Schedule-B Ielates to village Kalvanpur. The nlamt allegations are that the lands of Schedule-A were the self- acouired nronertv of his father namelv Shiv Ratan Jaiswal Shiv “.0 \1 H Ratan Had 3 sons namely Nandlal {nlaintmh Bandhu (defendant 1 ‘ ; no.‘i) and Santoshi Ram {defendant no;2). Another bmthcr of Shiv Ratan Jaiswal Was Nav Ratan Jaiswa1,whose daughter is Smt. Sonu,‘ defendant no.3. The plaint anngations am that the properh'cs ‘of Schedule-B of the plaint were acquired by Nav Ratan Jaiswal. It is further alleged that when Nav Ratan died the properties of Schedule-B were succeeded by‘his daughter Smt. Sonu (defendant no.3). Sonu is Shown to be handicanbed. The plainlill’s case is that on account'of death of Nav Ratan, the quesh'on of maintenance of Sonu arose and it was decided among the family members that defendant no. 1 will e0 to village Kalyanpur and will look alter the maintenance of Sonu and he will also manage the properties of Schedule-B and in this manner, he will have no right or interest in’ the pmpertks of Schedule—A at Akhorakala. The cause of action arose when defendant no.1, also claimed his right and ownershin in the properties of Schedule-A of‘the plaint. The claim of the plaintin' is that he and defendant no.2 be declared the joint owners of the properties of village AkhorkalaJand in case, the defendant no. 1 is also held to be a joint owner in the properties of village Akhorakala to the extent of 1!3 sham, then the plainh'n' and defendant n03. be also held to he the joint owners of properties Of ‘village Kalyanpur to the extent 'of 1/3 sham each in the said Propertx: 1 f, (3! The defendants no. 1’ 8t '2 nledrtheir mitten statement denving-rthesconteniions of the nlaintid'. it was pleaded bv them 3 that since defendants no. 1 is son of Shiv RatansJaiswal an the K K, 7 x s ~,\ a d property of schedule-A were admittedly éicquired by Shiv Ratan JaiSWal, therefoie, he will havé 113 shamf in the said property. So far as propertits of Schedule-B are cdnccrned, his name has been mutated in those properties alfongwith the name of Smt.Sonu, defendant no.3 because he is looking after the defendant no.3 and he has not accepted that property in lieu of partition in the family as has been alleged by the plaintin‘. (4! The learned trial Judge f ed- various issues and after recording evidence of the parties. dismissed the suit of the plaintiE holding that the plaintin‘ as well as defendants no. 1 85 2 are * joint owners of the properties of Schedule-A of the plaint to the extent of 1!3rd share of each in it. It was also held that the properties of Schedule-B of the plaint were not the properties of ownership of plaintih‘ or defendants no. 1 8r. 2. {5} Against the aforesaid judgment and decree passed by the trial Court, the plainh’E hled an appeal before the lower appellate Court. The lower appellate Court also dismissed the appeal condrming the judgment and decree passed by the trial Court. (6) Learned counsel for appellant argues that the trial Court as well as the drst appellate Court erred in law in not holding that in the earlier partition, the properties of Schedule-A of the plaint were given to the ownership of plaintin' and defendgnt: no.2. He also‘argues that the courts below ened in law in not holding that defendant no.1 has surrendered his rights on the properh'es of._Schedule—A on the condition that he will be getting T‘. x rights of ownership in the properties of Schedule—B of the plaint along-with respondent no.3. ‘ (7) I have heani learned counsel for‘ihe appellant at length and have also gone thmugh the records of the Courts below. {8) First of all, as per the recoxds of the courts below. it appears that no such earlier partition, as has been alleged by the plaintid‘, is established on record in this case.‘ The defendant no.1 has only admitted in his cross-examination that he had gone to village Kalyanpur to look after the properties of defendant no.3 and he was managing'the properties of defendant no.3 and the properties of village Akhomkala were being managed bv his two brothers namely the plaintih‘ and defendant no.2. This does not mean that he has really relinquished] surrendered his rights in relation to the properties of Schedule-A of the plaint. More over, on account of condition of receiving properties of Schedule- B of the Plaint, the right of defendant no.1 in the properties of Schedule—A of the Plaint cannot be held to be ckh'nguished in this case because such an acn'on would amount to deciding the fate of propern'es of Schedule—B of the plaint in the life time of its owner namely Smt. Sonu, respondent no.3 herein, who is the only daughter of Nav Ratan. Under any law, her propertv cannot be administer-edlpartiiioned in her life time against her choice and even on some mutual agreement between the panics, regarding management of that property, right of defendant no.1 in the properh'es of Schedule-A of the plaint, which were . admittedly‘the properties of his father, cannot be extinguished in \ ’ the eyes 01;? law. ‘\ {9‘ In the facts and cimumstanoes of‘this case, the tn'al Court asxwcll as the mt Appellate Court Has rightly rcconled this m1dimi that defendant no. 1 was also having a right and intexest in the nroperh'es of Schedule-A of the plaint to the extent of 1I3Id share. This hnding is a hnding‘ of mt which is neither newerse nor contrary to the ,Ieconis. The same has been concun'entlv moorded by the two Courts below. Them appears to be no illegalitv in such hnding mcorded by the said courts. {10) A perusal of section 100 C‘.P.C. makes it clear that the scone and exercise ofjurisdiction by the High Court in the second appeal uls 100 is limited to the substantial question of law f ed at the time of admission of the appeal or additional substantial questions of law ' d at the later stage after I e reconii reasons for the s. This makes it clear that the ng ame xistence of substanti uestion of l is sine qua non for the e al q aw eercise of jiiction under the ned provisns of section x ursd amed io 0 (Please see (2004) Vol. V scc 762 araian 10 CPC. — and others vs Venuannala Swarm: Bxoit and othe§. (11) As t which would conitute a substantial quesu'on of law, o st t h A Co of Sautosh i has been observed by te pex urt in case Hazeli ns- Purushouum Tlwarl {deceased} bu L.Rs. (2001! 3 SCC 179 that ‘a point of law which admits of no two opinions may be a proposition of law but cannot be a substanal question of law. To be ‘substantia" queion of law mst be btble, t eviously seled by law o land or a binding recedent, and st‘have a material bearing on the decision of the case, if answered‘either way, insofar as the rights of the parties before it x; x -' - a ti l a st u deaa no m tt f the p mu am concerned. To be a question of law “involving in the case” there‘mmst be 111st a foundation for cit laid in the pleadings and the question should emerge nom the sustainable hndimxs of fact arrived at by court of facts and it must b‘e necessarv to decide ‘ that question of law for a just and proper decision of the case. A11 ' ‘ :\ I I entirely new point raised for the Hist time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefom, denend 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 nammount overall consideration being the need for strildng a iudicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding pmlonaah'on in the life A of anv lis.” (12) Recently: the Apex Court held in the matter of Hero Vimh Mr) -vs- Sashammal. matted (2006! 5 SCC 545 that a question of law which adects tights of the narh'es to the suit will be substantiaL if it is not covered by any snecitic nrovisions of law, or settled legal principle emerging from binding precedents of the High Court concerned, Privy Council. Federal Court or Supreme Court, and involves a debatable legal issue. A " substantial question of law will also arise where the legal position is clear but the court below has decided the matter ignorint; or acting contrary to such principle. However; the substantial question of law on which a second appeal shall be heard need not necessarily the a substantial question of law of general importancef’gut may only be one which was “involved in the. x case The Apex Court further held that ‘an enurelv ncw nomt ralsed for the mst ume befom the High Court 1s not a oucstton mvolved m the case unless 1t goes to rout" of the matter. Hence, it will depend on facts and circumstances of each case whether a question of law is a substantial one and involved in the case or h not. the paramount over all considerau'on being to shike a judicious balance between the indispensable obligah'on. to do justice and the impelling necessity of. aVoiding prolongation in life ‘ ’of any Iis. (13) In the facts and circumstances of this case; nosubstantial question of law is involved in this appeal. This appeal med u/s 100 C.P.C., is dismissed at the monon' stage it self. There shall be no cider as to costs. a; W1“ ' Sd/- xJ Sunii Kumar Sinha Judge