a WW $3§§$3§§ra grmég?‘ IN THE HIGH COURT OF JUDICATURE AT BILAsPUR SECOND APPEAL No. 4L$ OF 2006 @ w» SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 or ,N‘, APPELLANTS: Mohanlal, aged about 57 JH’l/aintiffs] years, son of Shri Lakshmandas Ji Chhadija. 2. Manoharlal, aged about .52 /V years, son of Shri Lakshmandas Ji Chhadija. Both residents of Gyan General Stores, Novelty Market, Banjari Chowk, Raipur. RESPONDENTS: *Vl/ Girish, aged about 47 efendants] years, son of Shri Romnath, Clerk, Nagar , Palik Nigam Office, Raipur. k9 2 Hari, aged about 45 years, son of ‘Shri Romnath, Fire brigade Office, Raipur. ;~\ 3. Manohar‘, aged about 4O $\% . t years, son of Shri w§ Romnath. . T l iv‘lwi; Q" e?‘ Q‘ Q? U’4. I Manoharlal, aged about 40 K Q" 4g?) g5 years, son of Shri Kishanchand. 5. Smt. Ganeshibai, aged if“ about 65 years, Widow of Late Moolchand Ji. / No.3 to 5 are residents of Navonath Mandir, Bhuipura, Raipur. HIGH COURT OF CHHATTISGARH, BILASPUR SECOND APPEAL NO. Z8!2006 Mohan La! and ano‘ther Vs. Girish and 4 o1'hers ORDER Pos+ for $072006 wk Sd/— Sunii Kamar Sinha Judge ,4 -— K“ HIGH COURT OF CHHATTISGARH, BILASPUR SECOND APPEAL NO.28/200é Mahania! and mower Vs. Girish and 4 afhers Appearance z Shri B.P. Shama, counse! for the appeuanfs. ORDER ( [212006) SUNIL KUMAR SINHA, IL (1) This is The p!ain+iffs’ second appeaL filed u/s 100 of Hue Cede ef Civil Procedure againsf Fme judgmen‘!’ and decrea dufed 21.10.2005 passed in Civil Appeal No.9 A/2005 by’fhe Disfricf Judge, Raipur, arising ou‘t of fhe judgmen‘r and decree dafed 28.3.2005 passed in Civil 5m Nada-M2003 by we 15+ CM! Judge, Chss-I, Raipur (GE). The plainfiffs Iosf in bo'fh The courts. (2) The brief facfe are fhu'r fhe plainfiffs fi!ed a sui'r for vacam- possessien of The sui‘r !and affer removal of 1'he supersfrucfure. They aiso prayed for damages in sum of Rs.1085/- caiculofed fiil fhe da're of filing of The suiT and furTher forffi’rure damages @ Rs.5/- per day from The doTe of insTiTuTion of The suiT Till The doTe of delivery of The possession. The case of The pluinTiffsris ThaT The suiT land bearing Bondobosf No.259/476 area 3003 Sq.F1’. as élown in fhe plain? map was put-chad by fhe \plaimiffs 1hrough a regisfered sale deed dated 02.02.1974 from leth Ram, Kaudomal and Gavind Ram for a considemfion of Rs.2500/-. The passession was also delivered +0 fluem. However. on or aboui’ 29.3.1980, 'lhe defendant no.1 6t 2 and fheir fa'lher Sommfh encraached upon 574 sq.ff., of 1he aforesaid land and some super-‘strucfure was raised upon i1. The superstrucmre was given on rent fo defendant nos. 4 di 5 by defendan'rs no.1 ‘ro 3 who were illegally enjoining ihe possession fhereof. The plaintiffs demanded vacanf possession of his properiy. The defendams filed iheir wriiien sfafemenf denying *he oonfen'iions of the plaintiffs. It was pleaded by them that the said land was not the property of Leela Ram, Kaud'omal md Govind Ram, therefore, they were not entitled to sell this property to the plaintiffs. They further pleaded that the map annexed with the plaint is not a correct map and the correct map has been annexed with the written statement. They specifically pleaded that the land of which they are holding possession was the land of joint ownership and possession of Sommth, Kedranath and Shyamlal which they had purchased through a sale deed dated 07.2.1950 and they are in possession of this land since last 40 years. (3) The learned trial Court framed various issues in this case and after recording evidence of the parties dismissed the suit of the plaintiffs holding that the plaintiffs could not prove that the defendants had encroached upon 574 sq.ft. of the suit &Io.sna Numebr as is alleged by them. Against the aforesaid judgment and decree passed by the trial Court, the plaintiffs filed an appeal before the lower appellate Court and the lower appellate court -3.— also dismissed fheir appeal confirming fhe judgmenf and decree passed by fhe Ma! Court (4) Learned counsel far fhe appellanfs submi'l's ‘l'haf 'Hw cour‘fs below cammiffed an error of law in discarding fhe commissioner's repar‘i on Technical grounds. (5) If appears fhaf for determining 'rhe facfum ef encroachmenf, a Commissianer was appoinfed by The 'l'riai Cour'i' who submii'fed his reporf and proved ii as ExP‘lé. He was examined as P’W.3. He sfafed iha'f he had na'r concluded fhe demarcation on fhe basis of revenue records as he had nof iaken any revenue record wi‘ih him. He had aiso sfai'ed fha‘f he had done fhe measuremen? an fhe basis of 'rhe map annexed wi‘ih ihe saie deed produced by 1'he piainfiffs. He had also sfa'red ‘ihaf he had faken fhe fixed poinfs on fhe basis‘of confen‘i's of 'l'he map of 'ihe saie deed (no'l' The map of revenue depari‘men‘i’)’ Lasfiy, if appears Tha‘i' no fieid book was prepared by fhe Commissioner as if has no‘i' been filed along-wifh fhe report On i’hese grounds, the frial Cour‘l' did no'l' believe 'l'he Commissioner's repori holding Tha‘i‘ a correcf measuremen'r was nof done (6) In fhe facfs and circumsfances, There appears To be no perversiTy in The concurrenT findings recorded by The Two courTs below ThaT The plainTiffs could noT esTablish ThaT The defendanTs had encroached upon any porTion of The suiT land as is alleged by Them. (7) A perusal of secTion IOQ C.P.C. makes iT clear ThaT The s:ope and exercise of jurisdicTion by The High CourT in The second appeal u/s 100 is limiTed To The subsTanTial quesTion of law framed aTThe Time of admission of The appeal or addiTioifial su‘bsTanTial 1i @ ~l’, ques'rions of law framed cf fhe hfer sfage affer recording \reasons for The same. This makes iT clear ThaT The exisTence of subsfanfia! quesfian of law is slha qua nan for fhz exercise of jurisdiction under fhe amended pravisions of section 100 CPC. (Please see {2004) Val. V $6? 7&2 - Thiaqarqjan and ofhers - vs- Venugoga/a 5wamy B.Kail and afher's). (8) As To which wouid cansfiiu‘l'e a subs'mn'iicxi quesi‘ion of law, if has been observed by fhe Apex Court in case cf 5anfash Hazari ws— Purusha#am myarf (deceased) by LRs. (2001) 3 566' 179 ffraf "a poinf of law which admi'rs of no fwo epinions may be a pmposifion of law buf cunnof be a subs‘l'an'fidl quesfion of law. To be “subsinnfial” a quesfion of law musf be debai'able, nof previously seffled by law of the land or a binding precedent and musf have a maferial bearing on fhe decision of the case, if answered eifher way, insofar as The righ'rs of The parfies before if are concerned. To be a quesfion of law “involving in fhe case ll 'i'here musf be firsf a founda'l'ion for if laid in fhe pleadings and The quesfion should emerge from The susTainable findings of facT arrived aT by courT of facfs and if musT be necessary To decide ThaT quesTion of law for a jusT and proper decision of The case. An enTirely new poinT raised for The firsT Time before The High CourT is noT a quesTion involved in The case unless iT goes To The rooT of The maTTer. IT will, Therefore, depend 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 paramounT overali consideraTion being The need for sTriking a “judicious balance beTween The indispensable obligaTion To do jusTice aT all sTages and impelling necessiTy of avoiding prolongaTion in The life of any lis;" (9) I d9 no‘t' ind any reason +0 infer'fer'e in The concurren'l' findings recorded by fhe 'l'wo cour'rs below. This appeal involves no subs'fan'l'ial quesfion of law and fl'ie same cannof be en'fer‘mined. The appeal sfands dismissed. There shall be no order as 'l'o cosfs. e _ gee x l’l‘ w; ‘1 sty- ‘ Sunil Kamar Sinha Judge f