sw-.ww.iSg.s.:vySi IN TI-1E HON,*BLE HIGH COURT OF CI^HATTI SGARH AT BIL^^PUR. SECOND APPEAL N0. J^IL. QF 2004 flblUl® ^EPgLLMLS DEFENDWTS No,l to 8^1" ^ Devlal son of Chhabilal^ aged 42 years, ^ ^ 4* / Dataram son of Noharsai, aged 55 years^ Bhogilal son of Shivprasad^ aged 55 years^ Raghu son of Sukhiram^ aged 58 years. ^ Kachara Bai widow of fiameshary f ^ / ' aged 53 years^ /y. ^^\], 6» GomaU Bai daughter of Rameshar >^^<A.:'' ^ ^aed s-L^ ^V¥ .» *v/%' <^ * •/^••" / . ^," ^/ <c"^ aged 30 years. 7% Gayatri Bai daughter of Bameshar aged 28 years^ ^•" / 9j»! Mohataram son of Bameshar, aged 26 years. ^' 9?» Sumitra Bai seusx®£L/O< Raraeshar aged 23 yearSy 10, Sumrit Bai daughter of Baraeshar, aged 21 years, 11« Anrit Bai daughter of Rameshar, aged 18 years^ . 12«. Kemlal son of Malikram, aged 45 ^ years, ,i31<p; Bohit son of Malikram^ aged 50 years J.4, Danau son of Shatruhan, aged 44 years, 15. Alekhram son of Kanshiram, aged ! 45 years, All caste- Chandra, resident of ViJ.lage-.Khaira,Tah.DabhaAa, Distt. - ® * A •r3 <» < A < ^. 4» < BE&PONDB'ITS .VERSUS 2 ^ 2«i ^" ^ 4. / Janjgir- ChacRpa (C,G.) Lakhan lal son of Kashiram, aged 38 years, »,«,Plaintiff Barnkunwar widow of Kushal Prasad aged 65 years^ Shyam Bai daughter o-f Kushal- Prasad vAfe of Mahadeva, aged 32years, Janiina Bai daughter of Kyshal Rrasad wife of Surendra Kumar, aged 30 years, All by cast.e- Chandra resident of village -. Khaira, Tahsil Dabhara, District Janjgir-Chanpa (C<G.),.. ,.. j^B.,ts of Deft.9 5^ State of Chhattisgarh Through - Collector^ District Janjgir-Chanpa (CoG.) Defendant No.ll, ^PPEAL UNDER SECTia'J IQO OF CODE OF C1V1L PBOCEDURE. v ^ :^' HJGH COURTPFLJUDICATURE AT BILASPUR (C.G1 Second Aooeal No.164 OF 2004 Devlal and others Vs. Lakhanlal and others JUDGMBNT Post for /5^12.2004 Sd/- Sunil Kumar Sinha Judge v,^>- v^t^^-^ €) .^ 'r ^ HIGH COURT OF JUDICATURE AT BILASPUR (C.G) Second Appeal No.164 OF 2004 Devlal and oftiers Vs. Lakhaalal aad others Shrl Had Bhagat Agrawal, Counsel for fhe appellan.ts. u' JUDGMENT (^-12-2004) SUNI^ KUMAR SINHA, J Heard on fh.e question of adinission, (2) This appeal under section 100 of fhe Code of CivU Procedure has been filed against the impugned judgxnent aad decree dated 11.02.2004 & 13.2.2004 passed ia CivU Appeal No.6-A/2001 by the Additional District Judge, Sakti, District BUaspur, arisiag out ofjudgnient and decree dated 30.11,2000 passed ia CivU Suit No. 1-A/ 1988 by the CivU Judge, Class-II, Sakti, District BUaspur (C.G). (3) The plamtiff naniely Lakhanlal filed a suit for permaaent iojunction prayiag tliat fhe defendaats be restraiaed froiii interfering wifh the irdgation works which he used to do by takiag water froin a taak situated ia. Khasra No.457 area 2.17 acres. (4) The tdal Court aUowed fhe suit by passing a decree for permanent injunction restramiag fhe defendants that they will ^ not interfere with fhe imgation work of the plairitiff by takmg water froin tiie tank of Khasra Nuinber referred to above for irrigating his agricultural lands bearing Khasra Nos.366/2, 367 aad 489 total area 0,79 acres. Agaiast fhe aforesaid judginent aad decree passed by ftie tdal Court, fhe defendaats filed an appeal before the lower appeUate Court but fhe lower appeUate Court disraissed fheir appeal confirmiag fhe judgnient aiid decree passed by fhe trial Court. In this way, fhe defendants lost ia bofti fhe courts and now tliey have coine up ia Secoud Appeal before fhis Court, (S) The plamt aUegations are that fh.e plaintiff is fhe owner of Khasra Nuniber 366/2, 367 aad 489 areas 0.68 acres, 0.07 acres aad 0,04 acres respectively which he had received in. the famUy parfc^on. These laads are adjacent to fhe taak which is situated ui Khasra No.457 area 2,17 acres. It is furfher aUeged fh.at fhe taak is fhe aacestral property of the plauitiff aad siace long back, fhe above agricultural laads are beiag irdgated by fhis taak. (6) The cause gJCaction for filiag fhe suit arose ia ftie Bionfh of Deceinber 1985 when fhe defendaats iaterfered wifh fhe irrigation work aad fhey tiireatened fhe plamtiff to stop fhe same. They contended fhat fhe plaiatiffwas haviag no right or auth.ority to irdgate fhe agricultural lands froin the aforesaid tank. (7) The defendaats filed fheir written stateiaent denyiag the contentions of fhe plaintiff. It was pleaded by fhein tliat the suit lands were not received by fhe plaiatiff iii partition. The ,J -^ plamtiff has filed fhe suit for pennaaenUy termmatmg tfie rights of irrigation of the defendaats froni fhe said tank and fhe suit has been filed on false aad fictitious grounds, (8) Leamed tdal Court fraiaed various issues ia this case and after recording fh.e evidence of the pardes decreed the suit of fhe plahitiff hoMing fhat fhe plamtiff was haviag a nght of irrigation froni tlie said taak situated in Khasra No.457. Vide^ issue no,l it was determuied fhat fhe suit lands referred to in. para 1 of i'he plamt belong to fhe plaiatiff, however, fhe tank ia question belongs to both ftie parties. (9) Agaiast fhe aforesaid judginent and decree passed by fhe tdal Coiirt, ttie defendants ffled aa appeal before fhie lower appeUate Court. The lower appeUate Court dismissed their appeal aad confiraied fhe judginent and decree passed by fhe tdal Court, The lower appeUate court also recorded a findio.g fhat the trial Court has nghUy held fhat tliere was a pardtion in ttie family artd ia fhe said partitlon, ftie suit laiids beanng Khasra Nos.366/2, 489, 367 werc received by the plauitiff. It was also determip.^d that fhe taak in question was never put to pardtion ia fheir famHy and bofh fhe pardes are havuig right aad iaterest over fhe said taak aiid bofh ftie parties were entifled to cany on irrigation from the said taak. In fhis way, the coucnrrent finding has been recorded by fhe two courts below sayiag that fhe taak ia question is a joiat family property aiid none of fhe parties caa be stopped frora doirtg irrigation works froni the said taak, (10) Now leamed counsel for fhe appellant argues in fhe second appeal that fhe findiags in relation to pardtion as weU as ownership of fhe taak are perverse and fhe same inay be set aside, i (11) I have gone fhrough fhe records of fhe two Courts below aad have also perused fhe mxpugned judginent and decree passed by fhem. A concurreut fmdmg m relation to fhe partition as weU as fhe ownership aad user of the taak has been recorded by the two courts below, which are based on evidence on record and fhere is no perversity ia fhe saine, Hence, fhere is no reason witih. fhis Court to interfere witfi fhe said findiags under section 100 of Code of CivU Procedui'e. In fact, leamed counsel for the appeUaat coiild not point out aiiy per^ersity ia fhe fiadiags concurrentiy recorded by fhe two Courts below, (12) It is iaiportaat to inention fh.is fact here fhat tliis Court is dealmg wifh fhis niatter ia a second appeal iii which jurisdiction is limited ^ihe provisions of Section 100 C.P.C. Hon^ble fhe Apex Coiyt has held fhat under Section 100 of fhe Code of CivU Procedure, the jurisdiction of the Court to entertam a second appeal is confined only to such appeals which iavolve a substaatial question of law aad it does not confer any jurisdiction on the High Court to iaterfere wifh tbie pure questions offact whUe exercisiag its jurisdiction u/s 100 C. P. C {Please see Roap Sineih fDead) thrawih LRs—Vs-Rcun Slvwh fDecid) thraugh LRs reported ia (2000] 3 SCC 708. It is also to be noted fhat fhe existence of substaatial question of v ^ law is fhe sine qua non for tiie exercise of junsdiction under ftie ainended provisions of Section 100 of the Code of Civil Procedure aad unless such questions are iavolved, the appeals are not to be entertaiaed (PIecise see Thiemeirctfan and athers Vs. Sri Venuffopalaswcmty B. Kail and athers reported m f2004) 5 SCC 7621. (13) Having heard learaed counsel for the appeUant aad considermg fhe facts and circuinstaaces of the case, entire material on record aiid ia view of fh.e above referred decisions of tiie Apex Court, fhis Court fiads that tlie partition as well as the ownership aad user of tiie taak are the piire questions of the fact which have been righUy dealt witli by fhe two Courts below and sia.ee fhe concurrent fiadiags were recorded by fheni, there is no reason to interfere wifh fhe aforesaid findiags at fhe appeUate stage u/s 100 offhe Code of Civil Procediire, ConsequenUy, siace no substantial question of law is involved io. fb^ appeal, tihis appeal fails aad is disniissed at tiie adniission stage itsetfwifh no orders as to costs. A- Sd/- Sunil Kumar Sinha Judge ^o \%.^"