(M; ® ‘k IN. THE HIGH COURT OF JUDICATUREAT BILASPUR: 5‘ CHHATTISGARH ’ ‘5 SECOND APPEAL N0.§Z@ OF 2005 Appellant Jeera Bai W/o Antram (Since Defendants - deceased) through Legal Representatives; ge”e) Smt. Basant patel, Wd/o Kartik Ram (99% Smt. Ghana Bai patel, / W/o Bhojram (g ”V (dda' patel Nageshwar S/o Antram Sushila D/o Kedar Patel Nageehwar, S/o Antram patel Gyaneshwar, S/o Antram patel Prayag Narayan, S/o Antram patel Urmila Bai, D/o Antram Patel Santoshi Bai D/o Antram Patel (All R/o Baloda Bazar, civil Lines, Tahsil — Baloda Bazar, Distt. Raipur Versus Respondent y Sanjay, S/o Dhel @la’intiff Singh Satnami, aged about 39 years, Cultivator, R/o Baloda Bazar, Tahsil-Baloda Bazar, Distt. Raipur (Chhattisgarh) Respondent 2. 'i Through Collector, Raipur, Disttr Raipur (Chhattisgarh) SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE V 7 State of Chhattisgarh gDefendant No. 2 ‘ H ® XI—HC—22 WW,W,W Wm .510'M0v Sé‘g )c/Gg ‘13 200 m mm ........ mam mm maih WWW WW WW ém%tran%$ 12.07.2006 K11. Sharmila Singhai, Counsel for the appellants. Heard on admission Order passed as follows: OR AL ORDER Qznlzooa) This is the defendants’ Second Appeal filed under Section 100 of the Code o:'Civil Procedure. l1; arises out of the judgment and decree dated 3/9/2005 passed by the 1‘“ Additional District Judge, Baloda Bazar, District — Raipur (C. G.). The brief facts are t'lat the plaintid filed a Civil Suit for permanent injunction and also for damages on account of interference being made by the defendants on the suit land owned by him. The plaint allegations are that the original owners of the suit land Wt re Smt. Ram Bai, Smt. Bodhni Bai and Smt. Bai, who were the real sisters. The land was jointly acquired by them. Aft€r them, tha land was jointly succe’éi‘ad by many successors alongwith the plaintitf and on a partition between them, this portion of suit land Was received in share of the plaintiff and he is; holding the exclusive possession thereof since long back. The defendants denied the contentions of the plaintiif. It was pleaded by them that the entire area of the suit land was purchased by Smt. Jeera Bai from its joint owners, nan] ed above, through a registered sale- @W) XI—HC-22 HW,ml-¢,W mm s r9 Mo 5’68 zmg m m 200 W WW§MW %;31%11311%&T ,2» deed dated 20/ 1/ 1977. The possession Was also delivered to her and in this manner; Smt. Jeera Bai, the original defendant No. 1, who died during the pendency of the suit and substituted by the Legal Representatives became owner of this property. Therefore, a decree for permanent injunction cannot be passed in favour of the plaintjif. The Trial Couit framed various issues and after recording ev1dence of the parties, dismissed the suit of the plaintiff holdmg that a question of title is involved in the suit and unless, a suit 1ega1d:11g declaration about the sale-deed is not filed by the pleintiff, the plaintiif cannot claim permanent injunction. However, a positive finding was lecorded by the Trial Court that in fact, the plaintiff is holding the possession of the suit land and the defendants or Smt. Jeera Bai were never put in possession of the suit property. Against the aforesad judgment and decree passed by the Trial Court, the plaimiif tiled 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 diEerent appeals, hled by 5 different plaintiffs by a common Judgment and decree dated 3/9/2005 because almost snmlar facts in issue were decided in 5 different C1Vil Suits against which these appeals were decided. The Appellate Court decreed the suit on the ground that when the Trial Court came to the conclusion that the plaintiifwas in possession of the disputed x (shat) w XI-HC-22 3am, m,W m kg/J-Mo- 56.33 W5 m W 200 W .................... l mm mm WWW ' WWW§f€QTIRER WW K? i aawm land, a decree for permanent injunction should have been passed in favour of the plaintiif, which the Trial Court has not done. It is against this judgment and decree passed by the Lower Appellate Com , the appellants/defendants have filed this Second Appeal. I Learned counsel f0 the appellants raises only one point. Her contention ’ ‘ that the finding in relation to is and the cannothe possession a perverse finding same sustained in the eye of 1a . She further submits that if the plaintiff will not 'be hel to be in possession of the suit property, a decree for pe anent injunction cannot be passed. I have gone through the records of the Courts below- and have also perused the evid nce led by the parties. It has come in the idence of witnesses that the entire area of suit land was su ceeded in joint possession by the plaintiff and other succe sors and thereafter, there was a partition in the family, in hich, this particular portion of the suit land was received by e plaintiE in the said partition and the plaintijl' is holding exclusive possession of the suit property since the said da e. On appreciation, Trial Court found that Late Smt. Jeera Bai or any of the resent appellants were never put in possession of the suit pr petty and the plea raised by them regarding receiving of p0 session in lieu of the sale has been negatived. A positive fin ing in relation to possession of the plaintiff over the suit d has been recorded by the Trial tea) XI—HC-22 WmaEfWW b4_ aFwam > Court on the basis of evidence on record. The Appellate Court also confirmed th€ above ' ding and has decreed the suit for permanent injunction on 's basis only that the plaintitfwas in possession of the suit 1d. Since the finding of possession is a finding of fact and the same has been concu ntly recorded by the two Courts below and further since, ere appears to be no perversity Iin/ the aforesaid findings recorded by the two Courts below, I am not inclined to admit this appeal for heating. 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 the substantial question of law framed at the time of admission of the appeal or additional substantial questions of law framed at the later stage after recording reasons for the same. This makes it clear that the existence oi' 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 762 —- Thiggargian and others —vs~ Venggogla Swamy B.Koil and others). As to which would :onstitute a substantial question of law, it has been observed by the Apex Court in case pf Santosh Hazarl ~vs- Pumshottam Tlwari (deceased) by L.Rs. (2001) 3 SCC 179 that “a point of law which admits of no two opinions may be 2. proposition of law but cannot be a substantial question of law. To be“substantial” a question of v &) x am XI—HC-22 EW,WW,W ! mm .539- Mm§6g 2(%o_§' mm a1 200 m WWW WW§WW éswm V, gf law must b¢ debatable, nct previously settled by law of the land or a binding praced ent, and must have a matsrial beating on the decision of the case, if answered either way, insofar as the rights of the parties before it are concenied. To be a question of law “involv 'Lng in the case” there must be first a foundation for it laid 1r the pleadings and the question should emerge from the sustainable findings of fact arrived at A by court of facts and it must be necessary 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 -Court is not a question i shyna/ vatti ved in the case unless it goes to the root of the matter. It ill, 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 indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of y lis.” For the foregoing re sons, no substantial question of law is involved in this peal and the same cannot be entertained under Section 00 of the Code'of Civil Procedure. The appeal has no m Iit and the same is dismissed. No order as to costs. Sdl— Sunil Kumar Sinha Judgeavni r/ l n ; e p