WV ® IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH SECOND APPEAL NO. 080 OF 200‘ SECOND APPEAL UNDER SECTION’1’BO OF CODE OF CIVIL PROCEDURE Appellant Jeera Bai W/o Antram (Since Pe’fendants “deceased) through Legal Representatives; 4/ _§a/)/ Smt: Kartlk Basant Ram pateL Wd/o (b) Smt. Ghana Bai patel, / W/o Bhojram , NageshwarS/o'Antram pate! 4d) Sushila D/o Kedar Patel W S/o Antram pwaté‘r _,(‘fr)‘ Gyaneshwar, S/o Antram patel [(9) Prayag Narayan, S/o Antram patel (f) Urmila Bai, D/o Antram / Patel §(i)-’L Santoshi Bai D/o Antram Patel (All R/o Baloda Bazar, civil Lines, Tahsil — Baloda Bazar, Distt. Raipur Versus Respondent Plaintiff ’1" 7 Shyam Sundar, S/o Dhel Singh Satnami, aged z” v about 46 years, Cultivator, R/o Baloda Bazar, Tahsil-Baloda Bazar, Distt. Raipur (Chhattisgarh) Respondent ,2’.’ State of Chhattisgarh efendant No. 2 Through Collector, Raipur, Distt. Raipur.‘ (Chhattisgarh) XI—HC-22 3am, Wan-qr, WK m ‘<.9”N0,/20 M6 m V m 200 m XI-HC—22 mm mm .deed dated 20/ 1/ 1977. The possession was also delivered to her Smt. Jeera Bai, the original defendant No. 1, who died curing the pendency of the suit and substituted by the Legal Re presentatives became owner of this property; Therefore, a cannot be passed in favour recording evidence of the plaintiff holding that a qut stion of title is involved in the suit mg declaration about the sale~deed lntiff, the plaintiff cannot claim However, recorded bv the Trial Court the possession of the suii Jeera Bai were never put Against the aforesai the Trial Court, the plaint Appellate Court. The L( appeal and decreed the : appears that the Appellate appeals? filed by 5 diffeien and decree dated 3/9/20l issue were decided in 5 t these appeals were decidet suit on the ground that ‘ conclusion that the plainti and unless, a suit regardi is not filed by the pla permanent injunction. and in this manner; decree for permanent injunction ofthe plaintiff. issues and after parties, dismissed the suit of the The Trial Court flamed various a positive finding was that in fact; the plaintiff is holding land and the defendants or Smt. in possession of the suit property. i judgment and decree passed by lif filed an appeal before the Lower )wer Appellate Court allowed the mit for permanent injunction. It Court has disposed of 5 dinerent t plaintiEsjoy a common judgment )5 because'almost similar facts in lifferent Civil Suits against which l. The Appellate Court decreed the vhen the Trial Court came to the tfwas in possession of the disputed «p XI-HC-ZZ WWW WW§MW ,3/ énai§wa1§m . land, a decree for permanent injunction should have been pas56d in favour of the p1aintiif, which th€ Trial Court has not done. It is against thi$ judgment and d6cree passad by the Lower Appellate Con rt, the appellants/defendants have filed this Second Appeal. Learned counsel the appellants raises only one point. Her contention s that the fmdipg in relation to possession is a perverse iinding and the same cannot be sustained in the eye of She further submits that if the plaintiff will not be he. e I have gone throng the records of the Courts below and have also perused the evi ence led by the parties. It has come in the Vidence of witnesses that the entire area of suit land was s cceeded in jointipossession by the plaintiff and other succ ssors and thereafter, there was a partition in the family, in which, this particular portion of the suit land was received by the plaintiff in the said partition and the plaintiff is holding exclusive possession of the suit property since the said d te. Trial Court found that Late Smt. Jeera Bai or any of the resent appellants were never put in possession of the suitp perty and the plea raised by them regarding receiving of po session in lieu of the sale has been negatived. A positive f ding in relation to possession of the plaintiif over the suit has been recorded by the Trial l property, a decree for p to be in possession of the suit nent injunction cannot be passed. On appreciation, f r a e d 3am, m; W3? Wm m WWW WW§WW v 4# %a1%11311%31 . Court on ths basis of 6Vid€ nce on rccord. The Appellate Court also confirmed the above jinding and has decresd the suit fo permanent injunction on this basis only that the plaintiE was in poesession of the suit l 1d. Since the hnding of possession is a miding of fact and the same has been conc Tently recorded by the two Courts below and further since, there appears to be no perversity in the aforesaid findings recorded by the two Courts below, I am not inclined to admit this appeal for hearing. A perusal of section 100 C.P.C. makes it clear that the scope and exercise of jurisdiction by the High Court in the second appeal u/s 100 is limited to thesubstantial question of law framed at the time of admission of the appeal or additional substantial qu :stions of law framed at the later stage after recording reasons for the same. This makes it clear that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the amended provisions of section 100 CFC. (Please see (2004) Vol. V SCC others vs Ven o ala Swam shyn —- law, it has been observ d. by the Apex Court in case of L.Rs. (2001) 3 SCC 179 “a point of law which admits of no two opinions may b proposition of law but cannot be a substantial question of 1 To be “substantial” a question of tW) XI-HC-22 r t e a L XI—HC—22 Emma, Wm, $511113? m /5}v Mo. 20 m6 mmfw W 200 W WW mm mmw WW#WW mw V 5"; aswm law must bc debatable, 11ct pr€vious1y settled by law of the CV 1 land or a biliding precedent, and must have a material the decisiOIi of bearing on of the case, if answered either way, insofar as the rights of the alties befom it are concerned. To ‘ K: be a question of law “invol ' g in the case” there must be first a foundation for it laid ' the, pleadings and the question should emerge from the su tainable findings of fact axiived at by court of facts and it ust be necessalv to decide that question of law for a just d proper decision of the case. A11 entirely new point raised the first time before point or before the High ' Court is not a question in olved in the case unless it goes to the root of the matter. It ' , therefore, depend on the facts and circumstance of each ase whether a question of law is a“ substantial one and inv lved in the case, or not; the paramount overall conside tion being the need for striking a judicious balance between the indispensable obligation to do justice at all stages an impelling necessity of avoiding prolongation in the life of y lis.” K2“; k’ For the foregoing re sons, no substantial question of law is involved in this ppeal and the same cannot be entertained under Section 00 of the Code of Civil Procedure. The appeal has no m rit and the same is dismissed. No order as to costs. —/‘ Sdl— Sunil Sinha Kumar Judge shynafvatti Q? (@W)