i. 1T "v'- ....^^" ^^•'^ ,&..-••• IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH APPhLLAMI /DEFENDANT RESPONDENT /PLAiNTJFF S.A. N0. c^'^- . 2006 ^Kamaayai, s/o. uevnath Gond, Aged about 30 years, R/o. village Sajapaij, Tahsii Gariyaband, Dfstrict Raipur (CG) VERSUS Smt. Ganesha Bai, ASBQ about 60 years, D/o. Chaituram Gond, R/o. village bajapatt, lansn uanyaband, Distnct Raipur (CG) State of Chhatttegarh, Tnrough: Collector, Raipur, Dfstrict Raipur (CG) {RespQndent/tiefendant) SECOND APPEAL UNDER SECTiON-100 OF CiVil -C O? V' ?ROCEDURE CODE ^''t^ -t.a-S^sO- ^... 2] s. Appellant Respondents Second Appeal No.207/2006 al Smt. Ganesha Bai and another. Shril ShnV.K. Shri Sanje counse! Agrawa!, Par for the appeitant. forrespondent No.1 el Lawyer for the Stati !o.2 The second appeal has been preferred by the defendant in the trial Court vrtio is suffering a decree for declaration and possession in the suit filed by the respondent No.l/plairtiff Smt. Ganesha Bai. she is the (3) It was the case daughter of Cha'rtu and Baratnin Bai and that being of are govemed by their own sustoms. According to the plaihtitf, her father had got 20 acres of land in succession, whereas her uncte Devnath had received 18 acres of land and both of them were separately cultivating their respective lands, however, the revenue records remainec! joint. After the death of her father, his second wife Rambati Bai who was the step mother of the piaintiff got mutated her name in place of Devnath. According to the plaintiff', Rambati Bai got recorded fhe name of defendant Ramdayal in the revenue record depriving her right in the su'rt property and thereafter the matter was -^- moved to revenue Court. Ultimately, Additional Commissioner, Raipur passed an order dated 14.03.1996 directing deletion of the name of the riainti name of defendant Ramdayal jn the the su'rt land. The plaintiffs cause of action for filing the present suft arose upon passing of the order dated 14.03.1996 (Ex-D/6), by the Addittonal Commissioner as according to her, there wasa ctoud over her title which necess'itated the fiting ofthe present surt for declaration of t'rtle. According to the plaintiff, the defendant has no right t'rtle or interest in the suit property as he does not belong to the family of Chaftu. | (4) The defendant, in his written stetement came 'with the plea that the parties are govemed by Hin<lu customs and rituate, though they ibe. It was his specific case thert he was adopted t>y and that Rambati Bai had also executed a wil! deed dated 'queathjng the suit propsrty in his favour. (5) The teamed trial Court, on the basis of the oral and documentary evidences adduced by the parties came to the conclusron that the ptaintiff has succeeded in proving her title in the suit property, The teamed trial Court whiie deciding the No.2 as wel! as the additionai issue No.2 has recorded, the finding that the parties belonging to Gond tribe, they are not gqyemed by the prowsioRS bf Hindu Succession Act. it was also hetd by the tria! Court that tE- tefendant No.1 has Tailed to prove that he has been adopted by. late Rambati Bai and that mere recording of his name or continuous possessfon wouid not confer any tttle upon the defendant. Additional issue No.4 regarding the validfty of the will has already been decIH^ '•'M^\f\l^ -3 against No.1 has defendant No.1 fasled to examine appreciating the fact that the defendant attesting witnesses and that the wiil is not free from suspteion. (6) On appeal by the present appellant before the first appe'late Court, the said appsal has aiready been dismissed vAich is under challenae before this Court. The flrst the fmtfings recorded by the trial Court and upon discussion of the entire evidence, the appetiate Court ateo held that the defendant No.1 has faited to prove his adoption by Rambati Bai as the fact that Rambati Bai has executed any will in his Tavour. (7) Leamed counsel tor the appeltent argued that since Rambati Bai had the right of mairtenance over the sutt property during hsr iifetime as per 8S! impleadms Rambatt could nat have been fited or in any case no suit le present plaintiff durina the iifetinie of Rambati Bai. It is common ground that during the pendency Rambati Bai was subsequently joined as defendant and that dunng the course of trial she has died. As a resutt, the pr pteintiWrespondent No,1 alone remains successor to the proper by Cha'rtu. Since both the Gourts have concurrently found that ths defendant Ramdayal has not been abte to prove his adoption by Rambati Bai or execution ofthe will by Rambati Bai the question raised by the appeltant m thte appeal appears to be asadem'rc and tt cannot »esubstartial question of law at this stage. (8) , In the case of Stete Bank of invfia and offief^ vs. SMQQyal, 081 8 SCC 82, the Hon'bie Supreme Court has enunciated as to /f what is a substantial question of law. Paragraph 13 of the report is extracted herein betoMV: "13. Second appeals woufd Ife ?n cases whfeft /nvo/ve substaniiai guesfions oftew. Tfte word "substanSal" prefixed fo "questfon of law" doss not refer to the stakes mvolved in fhe case, nor mtended to refer onty to qyesfions of Saw of general impoftance, but refers to impact or effect of the guesffon oftew on fhe decfelon in the Iss Aeftveen e partses. "Substantial questtons of law* means not only substantial questsons of iaw of general importance, but also substantsal guestfon of tew arissng in a csse as between the partses. In ths context of Secfion 100 CPC, any questsoR of law which affecte ffte fsnaf dewsion m a csse is a substantial question of tew as beftveen the part'es. A guesffon of ?aw which arises mcidentsliy or CQllateralty, having no bearing on ihe finaf outeome, will not be a sufestenffa/ guesffo" of few. Where there is a ctear and ssttlsd enunciatson on a question of faw, by thls Court or by ths High Court concemed, it cannof &e saf'd that the case mvolves a substanlSal quesVon of tew. tt fe safd that a substantsaS question of law arises when a guesfion of law, wWch fe nof finally seWecf by this Court for by the High Court concemed so far as the State is concemed), arises for cons;deraffon OT the case. Birt thss stetemenf has to &e understood m the correct perspective. Where there ;s a cfear enunciafion of law and ths lower court has foltowed or rightly apf^ied swh clear enunciation oflaw, obwously the case will not 6e considered as giwng rise to a substanfiaf guesffon of few, even if tfte quesffon of ,'aw may be one of general importance. On the other hand, if there ss a cfear enuncfeffon oflaw bythis Court for&y the High Coyrf concemed), but the tower court ftad ignorad or misinteipreted or misappliefi the same, and correcf applfeaffon of (he favy as decfered or enuncfsted by (ftfe ^f, Court for the Hsgh Court concemed) would have led to a (tifferent decisfon, fte sppeal woufd involvs a substantial f •J- guesffon of tew as feefween the parifes. Evsn wftere there fe an enunciation o.f law by this Court (or ffie High Court concemed} and fhe same has been ftrftowed by the lower court, Wthe appelSantisaf)Se to persuadethe Hsgh Courtthat ffte enundate'S Segal posstion needs reconsideratson, a eration, modificstion or claiificatiOR orthatthere is a need to resolve an apparenf confffcf between t//o wewpoints, H can be said that a suhstenfe) guesfen of few arises for definstjon as to when asubstanSal guesfion of !aw arisesin a case. Be ffiiat asit may." (9) Appiying the above extracted principte as to vrfiat is asubstantiat question of law,in the facte of the present case, it is apparent that No.1 Ramdayal is not a member of the family of Chaitu and his ptea of being adopted by.Rambati Bal or the execution ofwill in his Tavour by Rambati Bai has not been proved by the Courts below, the plaintiff alone remains in the family to succeed to th6 preperty ' or not the su'rt could have been fi^d by the RambatiBai is not a substantial question Chaftu, therefore, plaintiff during the lifetime oftew involved for detei'minationinthisappeal. [10) No other substantial question of law is arising for determination in (11)lntheresutt,theinstartsecondappealunderSectKm100ofCivj! Pcocedure Code Taiis and is hereby clismissedat the admisston stage. Sd//- Prashant Kumar Mishra Judge IBn