1 S.B. Civil Second Appeal No. 448/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Civil Second Appeal No. 448/2010 Smt. Soni Devi & Others Versus Madan Lal & Another. Date of Judgment: 01.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. G.P. Sharma on behalf of Mr. Parag Rastogi, for the appellants. BY THE COURT:- Heard learned counsel for the appellants. 2. This is defendants' second appeal in a suit for permanent injunction filed by plaintiff-respondent, which has been decreed by both the courts below. 3. Plaintiff-respondent filed a suit for permanent injunction in respect of a Gali/Lane pleading that there is three feet lane in width towards North side of plaintiff's house, which has been trespassed by the defendants, therefore, they should be restrained from raising any construction and whatever construction, they have raised on the same, may be ordered to be removed. 2 S.B. Civil Second Appeal No. 448/2010 4. Trial court framed seven issues. Additional Issue No. 7-A was further framed. Relevant issue in the present case is Issue No. 2, which has been argued by learned counsel for the appellants. Plaintiff in support of its case relied upon Exhibit-1, Sale Deed; Exhibit-2 Patta issued by Municipality, Exhibit-3, Map annexed with Patta. No documentary evindence was produced by Defendant. 5. Trial court considered the oral and documentary evidence produced in the case and recorded a finding in respect of Issue No. 2 in favour of plaintiff and consequently, vide judgment dated 14.12.1999, passed a decree of injunction directing defendant No. 1 to remove the encroachment raised by him over the disputed piece of land. Defendant was further restrained from raising any construction or to trespass over the disputed Gali/Lane. 6. An appeal was preferred by defendants- appellants, which has been dismissed by the first appellate court vide judgment dated 26.08.2010, which is impugned in this second appeal. 7. Submission of learned counsel for the appellant is that Exhibit-2 Patta was subsequently set aside by Additional Divisional Commissioner, but the same was not considered by 3 S.B. Civil Second Appeal No. 448/2010 courts below. In this connection it is relevant to mention that the said order was not considered by learned trial court on the ground that order of Additional Divisional Commissioner was not exhibited in the case on behalf of the defendants, therefore, it cannot be treated as part of record. Trial court has also observed that admittdedly no documentary evidence in support of ownership over the land by defendants has been produced. Trial court has considered the oral and documentary evidence adduced in the case on behalf of both the parties and by detailed discussion and findings decided all the issues. 8. Issues involved in the present second appeal are relating to questions 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 under Section 100 C.P.C. 9. Second appeal can be considered only on the substantial questions of law. None of the questions of law formulated in the second appeal can be said to be substantial questions of law in the facts and circumstances of present case. 10. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment 4 S.B. Civil Second Appeal No. 448/2010 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.” 11. 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. .....” 12. 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 5 S.B. Civil Second Appeal No. 448/2010 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 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.” 13. Since 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.7.