(D IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH Mm smgw gm” Appellant Defendants Jeera Bai W/o Antram (Since deceased) through Legal Representatives; ’ 0 “$1.. @437 Smt. Basantpatel,Wd/o 6“ " 3 £2, “A .,x‘ @g’)‘ Smt. Kamk Ghana Ram Bai patel, ‘‘?) ‘ 'W/o Nageshwar Bhojram S/o Antram patel 3 @M Sushlla D/o Kedar Patel § 3 flgnwa (W@Nagee3lwa1=- patel S/o Antram a- w; Oe® Gyaneshwar, S/o Antram}? % " patel r WPrayag Narayan S/o I Antram patel ‘; (z@ Urmila Bai, D/o Antram ‘W ' / ' Patel I QatDSantoshi Bai D/o Antram “’l Patel (All R/o Baloda Bazar, civil Lines, Tahsil — Baloda Bazar, Distt. Raipur Versus _ SEcoND APP‘EAL UNDER SECTION 155’0F CODE OF v CIVIL PROCEDURE Respondent /1.. Rajay @ Raja, S/o Dhel /Pl’aintiff Singh Satnami, aged about41 years, Cultivator, R/o Baloda Bazar, Tahsil-Baloda Bazar, Distt. Raipur (Chhattisgarh) ’ Respondent ' 2..., State of Chhattisgarh Defendant No. 2 f / Through Collector, Raipur, Distt. Raipur (Chhattisgarh) XI-HC-22 , 33W, m, mat mm _ m Wm mm WW mmm mw§wm §3Wm 12.07.2006 I Ku‘. Shannila Singhaj, Counsel for the appellants. Heard on admission‘ Order passed as foll1)Ws: O AL ORDER ' This is ths defsnqlailts’ Section 100 of the Code o‘f judgment and decree iiAdditional District Judge (ca). ' The brief facts are permanent. injunction and interference being made owned by him. The plajpt owuers of the suit land and Slut. Bai, who were acquired by them. After by many successors between them, this portion of the plaintiff and he thereof since long back. contentions of the plaintff. entire area of the suit land from its joint owners, L2[7[2006l Second Appsal tiled under Civil Procedure. It arises out of the dated 3/ 9/ 2005 passed by fhe 1“ Baloda Bazar, District -’ Raipur t‘hat the piaintiff flied a Civil Suit for § also for damages on account of R by the defendants on the suit land t allegations are that the original wiere Smt. Ram Bai, Smt. Bodhni Bai the real sisters. The land was jointly 111cm, the land was jointly succeeded i alongwith the plaintiff and on a partition t of suit land was received in share j Ls holding the exclusive possession The defendants denied the .It was pleaded by them that the was purchased by Smt. Jeeia Bai named above, through a registered sale- XI-HC-22 Far-1mm; Wang,W 3mm 5'» /)' Mo .569 2W$ m 111 zoo m mast mm mm WWW ' ._2 .' .déed dat€d 20/ 1/ 1977. The posswsion was also delivered to her and in this manne'c,‘ WW§WW %:¢,1%n311%¥1 Smt. Jeera Bai, the original defendant No. 1, who died during the pendency of the suit and substituted by the Legal R ‘ resentatives became owner of this property.- Themfore, a ecree for permanent injunction cannot be passed in favour of the plaintiif. The Trial Court framed various» issues and after recording evidence of the parties, dismissed the suit of the plaintiif holding that a que stion of title is involved in the suit and unless, a suit regaidmg declaration about the sale-deed 'is not filed by the plantiff, the plaintiE cannot claim However, a positive miding was that in fact,‘ the plaintiil' is holding the possession of the sui land and the defendants or Smt. Jeera Bai were never put ' Against the aforesai judgment and decree passed by the Trial Court, the plai permanent injunction. recorded bV the Trial Co possession of the suit property. filed an appeal before the Lower Appellate Court. The L wer Appellate Court allowed the appeal and decreed the it for permanent injunction. It appears that the Appellat Court has disposed of 5 diEerent appealsjfiled by 5 differen plaintiffs) by a common judgment and decree dated 3/9/ 20 5, because’almost similar facts in issue were decided in 5 iiferent Civil Suits against which these appeals were decid . The Appellate Court decreed the suit on the ground that hen the Trial Court came to the conclusion that the plai was in possessiouwputed W) am . A FT u n u e n ‘ H”’f‘i A XI—HC-22 m,mw , g, ' WW§WW a3W3TIé3T piand, a d€cree for permmmnt injunction should have b€€n passed in favour of the plaintiff, which the Tn'al Court has net done. It is against this judgment and decree passed by the Lower Appellate Court, the appellants/defendants have med this Second Appeal. Learned counsel for the appellants raises only one point. Her contention is that the finding in relation to possession is a perverse finding and the same cannot be sustained in the eye'of'law. She further submits that if the plaintin‘ will not be held to be 'in possession of the suit property, a decreefor 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 tlhe plaintiff in the said partition and the plaintiif is holding exclusive possession of the suit property since the said d On appreciation, th Trial Court found that Late Smt. Jeera Bai or any of the p esent appellants were never put in possession of the suit pr perty and the plea raised by them regarding receiving of pos ession in lieu of the sale has been negatived. . A positive fm ing in relation to possession of the plaintiff over the i suit has bee-n recorded by thepTIial ’i #i'i V W) a . d XI—HC-22 3W,m,m Wm C £4 No {ég zwj' ns for the same. stage after recording reas clear that the existence of substantial question of law is sine qua non for the exercise f jurisdiction under the amended provisions of section 100 C C. (Please seeJ2004) Vol. V SCC 762 - Thiggargan and others -vs- Venggogala Swamy B.Koil and athers). As to which would danStitute a substantial question of law, it has been obsewed by the Apex Court in case of Santos}: Hazari —vs- Purushottam Tlwari (deceasegl by L.Rs. (20011 3 SCC 179 tit at la point of law which admits of no two opinions may be a‘lproposition of law but cannot be a To be “substantial” a question of substantial question of law. i) also eonfmned the above 1i pennanent injunction on th in posgession of the suit lax Since the fmding of j 3ossession iS a fmding of fact and ntlv recorded by the two Courts r 1e appears to be no perversity in ‘ the aforesaid fmdings reco (led by the two Courts below, I am not inclined to admit this’ a A perusal of section 100 C.P.C. makes it clear that the scope and exercise of juri‘diction by the High Court in the second appeal u/s 100 is of law framed at the additional substantial qu ‘tions of law framed at the later This makes it the same has been concu below and further since, )peal for hearing. ading and has decreed the suit for l is basis only that the plaintiif was “d. ted to the substantial question of admission of the appeal or e e ' ' i mm E 200 m mm WW WWW . WW§WW WW 4 ’ . %33%NTI%¥T Court on the basis of evidence on record. The Appellate Court XI-HC-ZZ EW,W,W mm land or a‘ bindmg pmce bearing on the decision Q insofar as the rights of thé be a question of law “invoh a foundation for it laid 11 should emerge from the St bV court of facts and it question of law for aju‘st xJ entirely new point raised Couxt is nof a question 1n and circumstance of each substantial one and in‘ paramount overall considi judicious balance betweex justice at. all stages an prolongation in the life of z For the foregoing 1‘ law is involved in this entertained under Section The appeal has no n No order as to c0sts 1ynaivatti .law must be debatable, not previously settled by law of the dent, and must have a material f the case, if answered either way, parties before it are concerned. To Ving in the case” there must be first _ n the pleadings and the question 1stainable findings of fact arrived at must be neceSSarV to decide that md proper decision of the case. An for the first? time before the High Wolved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts ease whether a question of law is a Jolved in the case, or not; the :ration being the need for striking a L the indispensable obligation to do a i impelling necessity of avoiding Luv 11's.” aasons, no substantial question of appeal and the same cannot be 100 of the Code of Civil Procedure. ierit and the same is dismissed. Sdl- Sunil Kumar Sinha Judgejauln, it l l . 4d (waver) .S‘QNO‘56‘9 wag” , , 200 m mam mm WWW mfaa‘lam‘nrvh‘a‘wm matte ’é'v awm