1 S.B. Civil Second Appeal No. 429/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 429/2010 Narpat Singh Vs. State of Rajasthan & Others. Date of Judgment: 25.10.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Ravi Bhojak, 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, which has been dismissed by both the courts below. 3. Plaintiff/appellant pressed only one issue i.e. Issue No. 1 before first appellate court. Issue No. 1 is “Whether plaintiff is entitled to a decree of permanent injunction restraining the defendants from dispossessing him from the property in dispute?” 4. The property in dispute is a small Bada, which is part of land bearing Khasra No. 639. Case of plaintiff/appellant is that although he has no legal title in respect of property in dispute, but he is in possession of the same, therefore, he is entitled for a decree of permanent injunction to the effect that he should not be dispossessed without due process of law. 2 S.B. Civil Second Appeal No. 429/2010 5. Both the courts below, after examining the oral and documentary evidence adduced by both the parties, recorded a finding that plaintiff is neither owner nor in possession of the land in dispute. The land in dispute has been allotted to a Government School, Nalu and a sum of Rs. 2,00,000/-(Rupees Two Lacs only) has been sanctioned for raising construction of four walls and front door of Government School. 6. The issue involved in the present case relates to a question of fact and there is concurrent finding of facts by both the courts below, which cannot be interferred with by this Court in second appeal under Section 100 C.P.C. 7. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment 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.” 3 S.B. Civil Second Appeal No. 429/2010 8. 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. .....” 9. 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 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 4 S.B. Civil Second Appeal No. 429/2010 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.” 10. Since issue involved in the present case relates to question of facts and there is concurrent finding of facts by both the courts below, which cannot be interferred with by this Court in second appeal. 11. 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.10.