;^y,^. ^^.y ' 'f5' A-*' . r (\r IN THE HIGH COURT OF CHHATTSIGARH AT BILASPUR S.A. No. "l''/ 7 /2006 APPELLANTS DEFENDANTS RESPONDENTS PLAINTIFFS ^ ^ ^ 9 1. Vishwajee S/o Kamta Prasad Shrivastava aged about 61 years. 2. Kesharbai w/o Vishwajee Shrivastava aged about 52 years. Both r/o village Killa Para, Rajnandgaon, Tehsil & District Rajnandgaon, C.G. VERSUS 1. Krishnalal Shrivastava s/o Late Munnalal Shrivastava, age 52 years, r/o H-49 New Civil Line, Rajnandgaon, C.G. 2. Prabhu Kumar Shrivastava s/o Late Munna Lal Shrivastava, Occupation- Service, r/o Hanuman Nagar, Durg, C.G. 3. Rajkumar Shrivastava s/o Late Munna Lal Shrivastava, age 44 years, r/o House No. 8, Street No. 12, Sector 5, Bhilai, District Durg, C.G. 4. Shiv Kumar Shrivastava s/o Sarju Prasad Shrivastava, age 62 years, r/o Khutapara, Dongargarh, District Rajnandgaon, C.G. c' 5.A. Parvati Shrjvastava w/o Ashwani Kumar Shrivastava, age 53 years. 5.B. Archana Shrivastava w/o Suraj Shrivastava, age 25 years, r/o Saraswati Nagar, Near Babu Talab, Durg. 5.C Aparna Shrivastava d/o Ashwani Shrivastava, age 23 years. ^K^g^s^'K S.SB318S 5.D. Amit Shrivastava s/o Ashwani Shrivastava, age 20 years. No. 5.A to 5.D. r/o Killa Para, Rajnandgaon, Tehsil & District Rajnandgaon, C.G. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. APPEAL VALUED IN SUM OF RS. 600/- -^"' COURT FEES PAID RS. 120/- ONLYAS IN THE COURT BELOW. ••% estS^ HIGH COURT OF CHHATTISGARH: BILASPUR Second Appeal No.497 o_f 2006 APEEU.ANTS: DEFENDANTS Vishwajee SE another Versus RESPQNDENTS: PLAINTIFFS Krishnalal Shrivastava & others POST FOR JUDGMENT ONAtilhJULY, 20 U pras SAII- ,bantKuroar Judge Mtehra o HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.497 of_2006 APPELLANTS: DEFENDANTS RESPONDENTS: PLAINTIFFS Vishwajee & another Versus Krishnalal Shrivastava 8s others Present: Shri A.K. Prasad, counsel for the appellants. Shri V.K. Sharma, counsel for the respondents. JUDGMENT (Delivered on3,o<SJuly, 2011) Prashant Kuinar Mishra, J. 1. This second appeal under Section 100 of the CPC has been preferred by the defendants against whom both the Courts below have passed a decree, inter alia, holding in favour of the plaintiff that the plaintiffs are residing in their part of the suit house as its owner and the defendants are restrained from interfering in the plaintiffs' possession. 2. The plaintiffs' case, as stated in the plaint, was that in Civil Suit No.98-A/1948 between Janaklal 85 2 others Vs. Jivanlal 8s 9 others,a compromise was recorded on 7-7-1951 in the Court of Civil Judge Class-2, Rajnandgaon in which defendant No.l's father agreed that the suit property shall be partitioned in 4 shares in the names of Sarju Prasad, Kanta Prasad, Punalal and Munnalal. On the basis of said compromise, about 28-30 years prior to the date of filing of the suit i.e. 18-11-1997, a family arrangement in accordance with the partition was made in front of respected citizens of the locality, however, defendant No. 1 refused to put his signature on the deed of \ arrangement on the ground that since the property stands in the name of his late father Kanta Prasad, he is the exclusive owner of the suit house. 3. According to the plaintiff, the parties are residing in such part of their share which were allotted about 30 years back and as such the parties approved the partition and arrangement. In the meanwhile, F'unalal has sold his share to the plaintiffs No. 1 to 3 and their father Munnalal by sale deeds dated 29-7-1970 and 17-6-1975. After the said purchase, Munnalal moved an application for mutation in which the defendants raised objection even after admitting pardtion in reply to the legal notice. It was also stated that every now and then defendant No.l is creating nuisance, therefore, in spite of having remained in possession, it became necessary to file the suit. 4. According to the defendants, no compromise has ever taken place between the parties and the property belongs exclusive to Kanta Prasad, late father of defendant No. 1 and after his death, defendant No. 1 became the sole owner. The sale deed executed by Punalal was contested on the ground that Punalal had no authority to execute a sale deed and as such, the sale deed is illegal and ineffective. 5. On the strength of the evidence led by the parties, the trial Court held that in view of long settled possession of the parties in their respective share and more particulariy, in the absence of any evidence led by the defendants to prove that the property was self acquired by Kanta Prasad, it appears highly probable fr.om the conduct of the parties that settlement was reached amongst the four brothers. The trial Court referred to Ex.-P/45 in which counsel for \ ' defendant No.l admitted that the property has been partitioned/ y ' 'pompromised by order dated 13-8-1951 in Civil Suit No. 98-A/1948. .^" '••SBSti ji I3 i ^•^ ^r/y The trial Court thus found that the suit property is ancestral property and there has been a partition/compromise between the parties in the year 1951. It has also been observed that if, according to the plaintiff he is the sole owner of the entire property, it is strange as to why he has not taken any action to remove the possession of other 3 brothers and their legal heirs from such part of the property in which they are in possession for more than 30 years. 6. The Appellate Court has affirmed the finding of the trial Court and has dismissed the first appeal preferred by the appellants. 7. Learned counsel for the appellants argued that copy of the compromise petition or compromise decree dated 7-7-1951 has not been submitted, therefore, the plaintiffs' case is not proved because this document is the basis of plaintiffs' claim. 8. This Court has gone through the record and particularly, Ex.-P/45 in which the appellant/defendant No.l's counsel has clearly admitted that there has been a partition between 4 sons of common ancestor late Chandulal Shrivastava in which all of them got l/4th share each. Along with this document it is also to be seen that the parties are in settled possession of their respective 1/4th share at-least for last about 60 years from the date when the compromise was entered in 1951. The conduct of defendant No.l in not initiating any action against his uncles or their legal heirs who are in their respective 1/4U1 share in the suit house also gives rise to the probability that there was a settlement amongst 4 sons of Chandulal Shrivastava. Merely because copy of the compromise decree has not been exhibited, other evidence available on record cannot be ignored. Both [ the Courts below have passed a decree in favour of the plaintiff on the basis of appreciation of evidence and admission of counsel for defendant No.l in Ex.-P/45. 9. The HonT^le Supreme Court in the case of State Bank of India and others vs. S.N. Goyal, {(2008) 8 SCC 92}, has laid down the principle as to what is a substantial question of law. Relevant paragraph of the judgment is extracted herein below: 13. Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefbced to "question of law" does nof refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the qyestion of law on the decision in the lis between the parties. "Substantial questions of law" means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation \ \ of law and the lower court has followed or rightly \ \ applied such clear enunciation of law, obviously the \ case will not be considered as giving rise to a ' substantial question of law, even if the question of law raay be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or . the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case. Be that as it may." 10.In the present case, the judgment and decree passed by the Courts below are based on appreciation of evidence and this Court is not required to re-appreciate the same in exercise of powers under Section lOOoftheCPC. 11. Applying the ratio of law laid down by the Hon'ble Supreme Court in S.N. Goyal (Supra), this Court finds that no substantial question of law arises for determination in this appeal. Consequently, the instant second appeal fails and is hereby dismissed. Sd//- prashantKumarMishra Judge Barve