HIGH COURT OF CHHATTISGARH AT BILASPUR S.A^ N0. 267/2011 Derharam. S/o Late Alal Dhobi Aged 70 years R/o Vffl: Satmara, Talisil: Gunderdelu Distt: Durg C.G. .'// APPBLLANT (PLAINTIFFl:- RESPONDENTS (DEFENDENTSt:- VERSUS 1. 2. 3. 4. 5. Saatosh. S/o Late Naminu Saliu aged 70 years Santram S/o Late Naminu Sahu Smt. Kartia Bai Wd/o Late Namniu Sahu Dukalu Sahu S/o Mukundi Sahu AU R/o Vffl; Satmara TahsU: Gundeidehi Distt: Durg C.G. The State of Clihattisgarh Through Coflector Durg C.G. SECOND APPEAL UNDER SBCTION^ 100 OF THE CIVIL PROCEDURE CODB, 1908. (SB :Hon'ble Mr. T.P.Sharma, J.) Prcsent- Mr. Arjun Yadav, Advocate for the appellant. Ms. Sangeeta Mishra, P.L. for the State/respondent No. 5. Respondents No. 1 to 4 not noticed. ORAL-JUDGEMEST (Passedon 24/08/2011) By this second appeal under Section 100 of fhe Code of Civil Procedure, 1908 (ia short 'the Code^ appeUaut has challenged the legality and propriety of the judgment aad decree dated Wl 61'2011 passed by 3rd Additiou.al District Judge, Durg (C.G.) iu Civil Appeal No. 7-A/2011 afGrmiag the judgnient aad decree of dismissal of civil suit dated 19/7/2010 passed by Civil Judge Class-2, Guudardehi District Durg (C.G.) in civil suit No. 41A/2007 whereby suit ffled on behalf of fhe present appeUant/plaintiff for declaration of title and permanent ^s^ injuiiction over the suit property has been dismissed. As per judgment and decree of bofh fhe Courts below present appeUaut has filed suit for declaration aud permaaent iajunction of the suit .^' —. property situated at village Satmara P.C. No. 148 District Dvrg on the ;round that he has purchased the property froin previous purchaser aad rt- .!^?:-i^ '"^SCrf*"'' ia his absence Naminu Sahu fafher of respondents No. 1 & 2 aad husband of respondent No. 3 has succeeded in execution of sale deed ia his name by showing present appeUaat aad his inofher as seUer but fhey were not present at the tiiue of such execution aad had not executed the sale deed Ex. D-1. After inaking coinplauit by plaiutiff Namiuu Sabiu has filed civil suit No. 24-A/80 before the Civil Judge Class-1, Durg and obtaiaed exparte decree which was finaUy quashed vide order dated 27/7/87. Name of purchasers were niutated ia fhe revenue record, subsequently by sale deed disputed property was sold to respondent No. Defendant has denied the aUegation inade iu plaint and has specifically pleaded fhat onguially civU suit was filed on behalf of fhe Nauunu Sahu in civU suit No. 24-A/80 which was dismissed vide order dated 27/7/87. Present plaiatiff has also filed civU suit No, 8A/93 before the 5th Civil Judge Class-2 which was dismissed on 2/4/98 in absence of present appeUaat/plauitiff after providiag opportunity of heariag for adducing evidence on him Court below has disnussed the suit on fhe ground that respondents have acquired title on the basis of sale deed executed by appeUant aad niother of appeUant and it has also been inentioned that appeUant has concealed the factuin of previous suit ffled on behalf of fhe appeUaat on same cause of action, saine was challenged before the lower appeUate Court. By affirming the judgment and decree lower appeUate Court has also held that it was iucunibent upou appeUaat to proof that atleged sale deed Ex. D-1 allegedly executed ia favour of the Naminu Sahu was not executed by appeUaut and his mofher but Nammu Sahu has succeeded ia execution of sale deed Ex. D-1 by producing somie other persons and womaa but he has failed to proofsuchfacts. ^w' .^. AppeUate Court has also held that present appeUant has filed fhe application for examiaation of docuinent by expert, -after closiag of his t ^v 8 8. case and after examining of 4 wituesses on behalf of the respondents/defendants after considerable delay therefore Court below has disiiiissed the application filed for examiaation of docuinent by expert. Mr. Arjua Yadav, Advocate for fhe appeUant and Ms. Saugeeta Mishra, P.L. for fhe State/respondent No. 5 are heard. Leamed counsel for the appeltant veheniently argued that both the Courts below have not decided the cases on the basis of issue required to decide. Both the Courts below have not considered fhat alleged Ex. D-1 has not been. executed by appeUaat and hte m.0ther. Suit was also uot tune barred but wifhout fraining any issue botti the Courts below have . arrived at a findiag fhat suit was also time barred aad were coniniitted illegalily. Learaed couusel for the appeUant furfher argued that for decision of second appeal fhe foUowiug two substantial questions of law would be necessaiy; - (1) "Whether proof of signature/thumb impression of the appellant cmd his nuriher on exhibit D-1 in absenoe of hand-writing expert's opinion can be said to be a valid document i.e. registered sale deed?. (2) Whether without mufation of the land in question in fccvourofthe appeUccnl, the respondent's father Narmnu Sahu has ccny right to get the title of ownership by way offorged scde deed, i.e. exhibii D-1 and got mutated in hisfavour is valid according fo laii/?'. Leamed counsel for fhe appeUaat placed reliance ia the matter of GURDBV KAUR AND ^THBRS V. KAKI AND OTHERS1 in which Supreine Court has held that after ainendinent in Civil Procedure Code, 1908 in. Section 100 High Court can interfere ia the second appeal only where substantial questions of law are involved aad have been V- \(2007) SCC 546 9. 4 formulated in fhe meiaorandum of appeal tnoreover, High Court must first fonnulated the questions oflaw and only fhereafter it caa proceed to decide them. Supreme Court has also held that amendment clearly indicates tiiat the legislature never intended th.e second appeal to become a fhird trial on facts hence, justice should be aduiiaistered in accordauce wifh law and not accordiag to Judge's whim desire aad notice ofjustice hence, wbere the wffl bequeafhed the entire inlieritaace of the testator to only one of several heirs and the Courts below recorded a concurrent finduig tfaat the will was a genuine and vaUd document. Leamed couasel for the appellant further placed reliance iu fhe raatter of JALAGADUGULA ESWARA RAO & ORS. V. DAVALA SURYA RAO2 in which High Court ofAndhra Pradesh has held fhat appUcation ffled for examination ofdocum.ent by expert caa be considered at aay stage. 10. Learaed counsel for the appeUant also placed reliance ui fh.e niatter of YADARAO DAJIBA SHIRAWANE (DEAD) BY URS. V. NANILAL HAItAKCHAND SHAH IDEAD1 AND OTHERS3 ia which Supreme Court has held that if such judginent is based on ausiaterpretation of documentary evidence or consideration of inadiaissible evidence or ^noring inaterial evidence, or on a findiag offact has ignored admissions or coiicessions made by witnesses or parties, High Court can interfere ia the second appeal. 11. Leamed counsel for fhe appellant also placed reliance m. fhe matter of CHADAT SINGH V. BAHADUR RAM AND OTHERS4 in which Supreme Court has held fhat disposal of second appeal wifhout formulatiaig substantial question oflaw or hearing fhe appeal without any substantial question oflaw is not sustainable. 2 AIR 2011 ANDHRA PRADESH 78 3.(2002) 6 SCC 404 'IJ2004(4)M.P.L.J.}231 3Sm'S%?^.\ / ^ 12. Learaed counsel for the appeUant ateo placed reliance ta the matter of GOVINDARAJU V. MARIAMMAN5 ia which Suprcme Court has held that "the case i&volves" a question of law meaas substantial question of law and it m.ust be debatable High Court are required to fi-auie substantial questioa of law for final decision ofthe appeal. 13. Learued couiisel for the appeUant also placed reliaace in the inatter of P. CHANDRASEKHARAN AND OTHERS V. S. KANAKARAJAN AND OTHERS6 ia which Supreiue Court has held fbat definite iaterpretation of fhe docuinent is substantial question of law and substantial question of law is different froin a question of law. 14. Leamed counsel for fhe appellant also placed reliance ia the niatter of STATB OP RAJASTHAN V. HARPHOOL SINGH (DEAD1 THROUGH HIS LSS.7 ua which Supreine Court has held that High Court is required to see that perverse finduigs not based upon legaUy acceptable evidence and which arc patenUy conteaiy to the law declared by the Supreiue Court caniiot have any immuiiily from iuterierence ia the hands of appeUate authority. 15. In the present case virtuaUy, as per judgment of both fhe Courts below present appeUant/plauitiff are haviag coiaplete knowledge about ~ execution of sale deed ia the name of himself and his inother iu favour of Naminu Saliu Ex. D-1 earUer he has also filed civil suit for same reUef as civil suit No. 8A/93 wbich has been disinissed for waat of prosecution on 2/4/98 (As per Para-14 ofthe judgment offhe trial Court aad Ex. D- 2)- 16. In fhe present suit, reasons best known to fhe plaintiff he has not clauned any reUef relating to such sale deed which was uiexistence aad has even wbich has been acted upon by fhe opposite party siace 1984 3 (2005) 2SCC 500 ' (2007) 5 SCC 669 7 2001(-y C.G.L.J. 220 even he bas not filed appUcation for examiiiation of such document prior to closing his evidence and has ffled application only after exammatioa of 4 wituesses on behalf of fhe respondents which has been finaUy dismissed by the trial Court. VirtuaUy, as per or^mal claiin of the plaintiff existence of such sale deed was not an issue alfhough it was withm the knowledge of present plamtiff, in. absence of claiin and relief relating to such docuinent when it was especiaUy within the knowledge of plaintiff Court was not under obUgation to fi-ame such issue or decide the case on tiie basis of such issue. " 17. As held in case of GimDEV KAtJR AND QTHERS, jJALAGAlDtJGULA ESWARA^tAO & ORS.. YADARAO DAJIBA SHIRAWANE (DEAD1 BY LRS., CHADAT 8INGH, GOVINDARAJU, P. CHANDRA8EKHARAN AND OTHERS & 8TATE OF RAJASTHAN (Suwal the Court are required to fi-ame substautial question of law and not oiily question of law for decision of second appeal. In the present case there is no substaatial question pf law for decision of fhe second appeal therefore it is not necessary to frame any question whicb is it would not be substaatial question of law for decision of fhis second appeal. Virtually, I do not find any substauce ia the second appeal or involviug any substaatial question oflaw. Consequently, second appeal is devoid ofraerita and same is Kable to be dismissed aad is hereby disiuissed at the stage of motion hearing. No ordeE as to costs. T.P. Sharma Judse 11-