1 S.B. Civil Second Appeal No. 383/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 383/2009 Babu & Others Versus Eid Mohammed Date: 01.10.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. M.I. Khan, for the appellants. BY THE COURT:- Heard learned counsel for the appellants. 2. Plaintiff-respondent filed a suit in the trial court against defendants-appellants to pass a decree of permanent injunction in his favour and restraining the defendants for not constructing a shop or any other construction on the disputed land of way marked ABCD in the map annexed with suit. 3. The case of plaintiff was that disputed piece of land of way is a common land of both the parties, whereas defendants' case was that it exclusively belongs to defendants. Both the parties led their evidence. Learned trial court framed three issues. Plaintiff produced Exhibit-1 Map; Exhibit-2 Registered Sale Deed; Exhibit-3 Site Plan Commissioner; and Exhibit-4 Report Commissioner in addition to oral 2 S.B. Civil Second Appeal No. 383/2009 testimony of P.W. 1 Eid Mohammad and 2 Shabbir. Defendants examined D.W. 1 Babu and D.W. 2 Davendra and produced Exhibit A-1 permission granted by Municipal Board for raising construction and Exhibit A-2 Map. 4. Learned trial court considered oral and documentary evidence and recorded a finding that the disputed land is a common way of both the parties and it does not belong to defendants exclusively and, therefore, restrained the defendants from raising construction of shop or any other construction on the disputed piece of land. 5. Being aggrieved with the same, defendants preferred first appeal, which has been dismissed by the first appellate court vide judgment and decree dated 02.03.2009. Hence, this second appeal has been preferred by the appellants-defendants. 6. Learned counsel for the appellants has assailed the judgments and decrees passed by both the courts below stating that disputed piece of land belongs to defendants exclusively and they have every right to construct shop over it. 7. I have considered his submissions in the light of reasons assigned by both the courts below for decreeing the suit of the plaintiff. 3 S.B. Civil Second Appeal No. 383/2009 Whether disputed piece of land of way is a common way of both the parties or it is exclusively belonging to the defendants is purely a question of fact and there is concurrent finding of fact by both the courts below, which cannot be interfered by this Court in second appeal. 8. 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.” 9. 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 4 S.B. Civil Second Appeal No. 383/2009 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. .....” 10. 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 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 5 S.B. Civil Second Appeal No. 383/2009 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.” 11. In my view, no substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine. (Narendra Kumar Jain),J. Manoj, Item No.2.