www— ,i W/(V @/ IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH QM SECOND APPEAL No. 5(4 OF 2005 Appellant 1 Jeera Bai Wlo Antram (Since Defendants deceased) through Legal Representatives @(kk‘) Smt Basantpatel Wd/o Kar‘tlk Ram {H} Smt Ghana Ba: pate! i @W W/o Nageshwar BhOJram S/o Antram f patel ‘ ~QEm—) Sushlla D/o Kedar Patel \ é §V‘ ,v‘ «4" x6 $g %F A w@ 499; pate! Nageshwa; S/o Antram wrm® patei £pp). Gyaneshwar S/o Antram F V w a @ éqq; Prayag Narayan, S/o ’ w Antram pate! v/ag.‘ @K \V ~Z\ ® Pate! Urmila Bai, v D/o Antram £ x9W $ v (s39 Santoshl Pate! Ba! D/o Antram (AI! R/o BaIOda Bazar CIVI! Lmes Tahsn! — Baloda Bazar Distt Ralpur Versus Shankar, S/o Dhe! Singh Satnami, aged about 46 years, Cultivator, R/o Baloda Bazar, Tahsi!-Ba!oda Bazar, Distt. Raipur (Chhattisgarh) 2. State of Chhattisgarh ! {f Through Co!!ector, Raipur, Distt. Raipur (Chhattisgarh) Respondent (Plaintiff 2x Wt /D’efendant No 2 t SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE ” ‘”‘ x XI—HC-22 EW,WW,W 3/; Na 55K gags m 1H 200 W XI—HC-22 WW, m,‘f%lamgx Wm \5 ,Q Ne géé lwdé' Wm.l.nin.u:.: Ha 200 W WWW WW%‘W .72 %3T%naxt% Vdeed dated '20/ 1/ 1977. Te posession was also delivered to her a11d in his man,‘ Sm. Jee Bai, he on'ginal dendan No. 1, who died ring the pendency of the suit and sustituted by the egal R resenativs became owner of this propert. Therefore, a ecree r permanent injunction ca r ti Th Trial ourt famed various- ssues and after coning evidence of th arties, dismissed the suit of the laintf holding that a Qu tion of titl is involved in the suit and unless, a suit regardg declaration about the sale—deed ' is not filed by he pltiff, the plaintiff cannot c permanent injunction. owever, a positive inding was rerded y the rial Cou th in fact, the plaintiff is holding the possessio of t ui ld an the defendants or Smt. Jeera Bai were never put n posssion of the suit property. e aid a ed t ner t ra t eft du b L epte y d fo nnot be passed in favou of the plainif. e C i i rei e p pif e s e in t am laim H f co b T rt at ‘ n he st an d Against th foresa judgment nd decree pass by the Trial Court, the plaintff filed an appeal before the Lower Appellate Court. The Lower Appellate Court allowed the appeal and decreed the suit for permanent injunction. It appears that the Appellate Court has disposed of 5 diheient appeals)filed by 5 different plaintjn's)by a common judgment and decree dated 3/9/2005 because almost similar facts in issue were decided in 5 ilih‘erent Civil Suits against which these appeals were decide . The Appellate Court decreed the suit on the ground that hen the Trial Court came to the conclusion that the plain ' was in possession of the disputed t e ' t/( rieea) W — w h s i es XI—HC-22 3am,m,mmgx Wm § ,9 No‘ 566 L<jo5 mm a 200 aw mm WWW ' WW§WW mm ,3, %3T%tran%:r land, a decree for permanent injunction should have been passed in favour of the plaintiff, which the Trial Court has not done. It is against this judgment and decree passed by the Lower Appellate Coult, the appellants/defendants have tiled this Second Appeal. Learned counsel for the appellants raises only one point. Her contention is that the finding in relation to possession ls a perverse finding and the same cannot be sustained 1n the eve of law. She further submits that if the plamtin' Will not be heldl‘ to be in possession of the suit property, a decree for permanent injunction cannot be passed. I have gone through the records of the Courts below and have also perused the evid ence led by the parties. It has come in the evidence of witnesses that the entire area of suit land was succeeded in joint possession by the plaintiff and other successors 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 date. On appreciation, the Trial Court found that Late Smt. Jeera Bai or any of the present appellants were never put in possession of the suit property and the plea raised by them regarding receiving of possession in lieu of the sale has been negatived. .A positive fmding in relation to possession of the plaintiff over the, suit land has been recorded by the Trial . w) XI—HC-22 Court on the basis of evide uc€ on record. Th€ Appellate Court also confirmed the above finding and has decreed the suit for ermanent injunction on this basis only that the plaintiff was in possession of the suit land. Since the finding of possession is a finding of fact and the same has been concurrently recorded by the two Courts below and further since, there appears to be no perversity in ed by the two Courts below, I am the aforesaid findings re not inclined to admit‘this A perusal of section ppeal for hearing. ' scope and exercise of ju second appeal u/ s 100 is of law framed at the additional substantial qu stage after recording rea clear that the existence o qua non for the exercise provisions of section 100 62 - Thiggargian .Koil and others}. As to which would i :onstitute a substantial question of law, it has been observed by the Apex Court in case of antosh Hazari —vs- Pmrushottam Tlwari (deceasegl 9y .Rs. (200;) 3 SCC 179 that “a point of law which admits of proposition of law but cannot be a substantial question of law. To be “substanti " a question of V100 C.P.C. makes it clear that the. sdiction by the High Court in the limited to the substantial question of admission of the appeal or stions of law framed at the later ons for the same. This makes it substantial question of law is sine f jurisdiction under the amended PC. (flease see (2004) Vol. V SCC others —v& Venugogala Swamy S L no two opinions may be a p d c ' 7 B e shyna/ vatu' Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the and circumstance of each substantial one and in paramount overall consid< volved in the case, facts case whether a question of law is a or not; the iration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of my lis.” For the foregoing reasons, no substantial question of appeal and the same cannot be 100 of the Code of Civil Procedure. The appeal has no merit and the same is dismissed. No order as to costs. law is involved in this entertained under Section Sdl- Sinha Snil Kumar Judge e’a u e XI-HC—22 3am, m,W c ,9 No §é€ ? mag” 1H zoo mm mm mm WWW WW%‘WW ,_ 5— éswm law must be debatabla, not prcviously settled by law of the 1* land or a binding precedent, and must have a material bearing on the decision of the case, if answeret! either way, insofar as the rights of the parties before it are concenied. To be a question of law “involving in the case” there must be first / a foundation for it laid 1n the pleadings and the question should emerge from the sustainable findings of fact arrived at bv court of facts and it must be necessarv to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High