Rajasthan High Court - Jaipur
Inder Singh Sethi S/O Late Harnam Singh ... vs Rajasthan Housing Board on 24 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.279/2008
1. Rajasthan Housing Board, through its Chairman, Jyoti Nagar, Jaipur.
2. Deputy Housing Commissioner, Rajasthan Housing Board, CAD
Circle, Kota.
----Defendant-appellants
Versus
Vinay Kashyap S/op Shri Radhey Shyam Kashyap, R/o 106-B,
Talvandi, Kota.
----Plaintiff-respondent
Connected with S.B. Civil Second Appeal No. 475/2018 Inder Singh Sethi S/o Late Harnam Singh Sethi (Dead), Through Legal Heir Satish Kumar Sharma S/o Late Shree Kishan Lal Sharma, aged 55 years, R/o C/o Sharma Chips and Marbles, 256, Shopping Centre, Lajpat Rai Circle, Kota, Rajasthan.
----Plaintiff-Appellant Versus
1. Rajasthan Housing Board, Through Its Chairman, Jyoti Nagar, Jaipur.
2. Deputy Housing Commissioner, Rajasthan Housing Board, Cad Circle, Kota.
----Respondents
For Appellant(s) : Mr. Parag Rastogi
Mr. Mayank Kumar Choudhary
For Respondent(s) : Ms. Anita Agarwal with
Mr. Laxmikant
Mr. H.V. Nandwana
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
24/08/2022
1. In both these appeals, the dispute between parties is in relation to allotment of plot No.4-A-7 and 5-D-4 situated at Rangbadi, Kota in the scheme of Rajasthan Housing Board (for short 'R.H.B').
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2. Second appeal No.279/2008 has been filed by the R.H.B., challenging the judgment and order dated 20.5.2008 passed in Civil first appeal No.46/2007 by the Court of Additional District Judge No.2, Kota whereby and whereunder the civil suit for mandatory injunction No.340/2005 filed by respondent Vinay Kashyap has been decreed and judgment dated 6.12.2006 passed by Civil Judge (Junior Division) South, Kota dismissing the suit, has been quashed. The first Appellate Court, vide judgment dated 20.5.2008 has issued directions to the R.H.B to allot and give possession of plot No.4-A-7 to Vinay Kashyap which was initially allotted to him in lottery dated 23.12.1995 and simultaneously directions have been issued that allotment be made at the rate applicable on the date of conducting the first lottery on 20.3.1993.
3. The second appeal No.475/18 has been filed by appellant plaintiff Inder Singh Sethi through legal heirs Satish Kumar Sharma, assailing the judgment and decree dated 1.9.2018 passed in Civil first appeal No.43/2007 by Additional District Judge No.2, Kota, affirming the judgment and decree dated 6.12.2006 passed in civil suit No.179/96 by the Court of Civil Judge (Junior Division) South, Kota whereby and whereunder his civil suit for prohibitory and mandatory injunction, in relation to securing the allotment of Plot No.4-A-7 after reducing the cost assessed and demanded by R.H.B, has been dismissed. In the civil suit filed by appellant-plaintiff Inder Singh Sethi, plaintiff did not appear as witness and did not prove his case, therefore, his suit has been dismissed on account of lack of evidence and on merits.
4. The relevant facts of the case as culled out from the record are as under:
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(3 of 18) [CSA-475/2018] 4.1 Shri Inder Singh Sethi applied for allotment of a house
before Rajasthan Housing Board, Kota and on deposition of the registration amount his application was registered on No.30/G1/H/HPS/79 in pursuance thereof. Thereafter, R.H.B asked him to deposit some seed money and one plot No.4-A-7, Rangbadi, Kota was allotted to him subject to payment of Rs.2,84,500/-. Applicant Inder Singh Sethi did not choose to deposit the demanded amount and approached to the Civil Court by filing a civil suit No.179/1996. In civil suit, an interim order was passed in favour of Inder Singh allowing him to deposit the value of plot as demanded by R.H.B and in pursuance thereof, R.H.B put a demand of Rs.5,53,562/- according to the applicable norms, however, the applicant did not deposited that amount. It appears that thereafter, applicant Inder Singh placed his matter, challenging the enhanced demand of cost of plot before the Samjhota Samiti of R.H.B and before an order dated 17.1.2003 was passed with consent of parties to deposit some reduced amount. But same too was not deposited entirely, though some amount was deposited however be that as if may the allotment of plot No.4-A-7 in favuour of Inder Singh had been cancelled by R.H.B, after filing of suit, since the applicant Inder Singh, did not appear as witness and could not prove his case make out by him in the civil suit, his civil suit was dismissed vide judgment dated 6.12.2006. In the meanwhile, it appears that due to non- deposition of the demanded money by Inder Singh Sethi against allotment of plot No.4-A-7, Rangbadi, Kota, Rajasthan Housing Board cancelled his allotment, which was not challenged by the plaintiff.
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(4 of 18) [CSA-475/2018] 4.2 Another person Vinay Kashyap who is respondent in second appeal No.279/2008, also applied for allotment of house in the scheme of R.H.B at Kota and his application was registered on 93/H/79/HP/G-2 dated 28.1.1980 and priority number 93 was issued to Vinay Kashyap. It appears that R.H.B conducted first lottery for allotment on 20.03.1993 but Vinay Kashyap was not included in the lottery and his priority No.93 was breached. At that moment, Vinay Kashyap approached to the consumer forum. The consumer forum issued directions to the R.H.B to consider the priority number of Vinay Kashyap in the next coming lottery. Accordingly, in the next lottery on 23.12.1995, R.H.B considered the registration/priority number of Vinay Kashyap and as by that time the plot No.4-A-7, earlier allotted to Inder Singh had been cancelled, therefore, that plot was also included in the houses to be allotted under the lottery and fortunately Vinay Kahsyap got, the plot No.4-A-7 in the lottery on 23.12.1995. 4.3 It further reveals that since the Inder Singh Sethi pursued his suit in relation to plot No.4-A-7 and this plot came in dispute, therefore, the R.H.B neither could allot nor give possession of plot the plot No.4-A-7 to Vinay Kashyap, inspite it had came in his name in the lottery dated 23.12.1995. Therefore, Vinay kashyap instituted a fresh civil suit No.340/2005 against Rajasthan Housing Board on 28.9.2004 seeking a mandatory injunction to get allotment and possession of plot No.4-A-7, Rangbadi, Kota. During this suit, since it was not possible for the R.H.B to issue allotment letter and deliver possession of plot No.4-A-7 to the Vinay Kashyap in furtherance of result of lottery, therefore, R.H.B in all its wisdom allotted an alternative plot No.5-D-4, situated at Rangbadi, Kota in the same scheme to Vinay Kashyap. Vinay (Downloaded on 25/12/2022 at 05:45:52 AM) (5 of 18) [CSA-475/2018] kashyap, on the pretext that the allotment of plot No.5-D-4 by R.H.B instead of plot No.4-A-7 which came to him in the lottery, pursued his civil suit, seeking direction against R.H.B for issuing the allotment and giving possession of plot No.4-A-7 only. 4.4 In both civil suits, civil suit No.179/1996 filed by Inder Singh Sethi against Rajasthan Housing Board and civil suit No.340/2005 filed by Vinay Kashyap against R.H.B, both parties were fighting for plot No.4-A-7, Rangbadi, Kota, therefore, both suits were consolidated and heard together.
4.5 The trial Court, after consolidation of both suits, framed issues and recorded evidence of both parties. Inder Singh Sethi did not appeared as witness and in his place one person Satish Kumar Sharma appeared as Pw.1. whereas, Vinay kashyap produced his evidence and pursued his suit. However, the trial Court vide common judgment dated 6.12.2006 dismissed both the civil suits. The civil suit filed by Inder Singh was dismissed for want of evidence and the civil suit filed by Vinay Kashtyap was dismissed on technical ground that he should have prayed for relief of specific performance and not mandatory injunction. 4.6 Vinay Kashyap preferred first appeal No.46/2007 against judgment dated 6.12.2006 dismissing his civil suit No.340/2005. In this first appeal, the Appellate Court re-heard and re- considered the entire subject matter of dispute and the material on record and by a speaking and reasoned order, upset and quashed the judgment dated 6.12.2006 in relation to civil suit of Vinay kashyap and allowed his first appeal by issuing a direction to the Rajasthan Housing Board to allot the plot No.4-A-7, Rangbadi, Kota to Vinay Kashyap. It may be noticed here that, since in the first lottery conducted on 20.3.1993, Vinay kashyap was not (Downloaded on 25/12/2022 at 05:45:52 AM) (6 of 18) [CSA-475/2018] included by the Rajasthan Housing Board, therefore, the first Appellate Court issued directions to allot this plot No.4-A-7 to Vinay kashyap at the rate applicable on 20.3.1993. The Rajasthan Housing Board feeling aggrieved by this judgment on 20.5.2008 has preferred the present second appeal No.279/2008. 4.7 Inder Singh Sethi preferred separate civil first appeal No.46/2007, challenging the judgment dated 6.12.2006, dismissing his civil suit No.179/1996. It reveals from record that Inder Singh passed away during the first appeal and one person Satish Kumar Sharma was declared as his legal representative in one civil misc. appeal No.3146/2008 vide order dated 14.9.2009, therefore, Inder Singh deceased through legal representative Satish Kumar Sharma pursued this first appeal. This first appeal has been heard and considered on merits. The first Appellate Court, affirming the judgment dated 6.12.2006, dismissed the appeal vide judgment dated 1.9.2018. Against both the judgments, Inder Singh through his alleged legal representative Satish Kumar Sharma has preferred the second appeal No.475/2018.
5. It appears from the previous order-sheets, that the Co- ordinate Bench of this Court noticed that two plots No.4-A-7 and 5-D-4 are available with the R.H.B and have not been allotted to any third person. Both Persons i.e. Inder Singh through legal representative Satish Kumar Sharma and Vinay Kashyap are claiming allotment for plot No.4-A-7 whereas the R.H.B has given an offer to allot an alternative plot to Vinay Kashyap, for plot No.5-D-4 in lieu of plot No.4-A-7, called, the concerned parties for mediation. It appears from order-sheets that mediation has failed.
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(7 of 18) [CSA-475/2018] 6. Thereafter, in the appeal No.475/2018, Satish Kumar
Sharma who is pursuing the issue of allotment of plot No.4-A-7 made in the name of Inder Singh Sethi, but has later on been cancelled, moved an application dated 20.2.2021 detailing out all such facts and made an open proposal showing his willingness for allotment of plot No.5-D-4. In specific terms, the clause 7 of the application dated 20.2.2021 filed by Satish Kumar Sharma read as under:-
"Now applicant is willing and fully satisfied, if house No.5-D-4, Rangbadi, Kota is allotted to him"
An alternative proposal given by the Satish Kumar Sharma at this stage of second appeal was not acceptable to the Rajasthan Housing Board and accordingly this application was dismissed vide order dated 29.3.2022.
Discussion of Civil Second Appeal No.279/2008:
7. In the second appeal No.279/2008, the consideration before this Court is as to whether the judgment dated 20.5.2008 passed in civil first appeal No.46/2007 raises any substantial question of law so as to call for interference by the High Court in the second appeal under Section 100 of CPC.
7.1 In this appeal Rajasthan Housing Board has raised an argument that the plot No.4-A-7 was alloted to Vinay Kashyap in the lottery on 23.12.1995, but the suit has been instituted on 28.9.2004 and therefore, civil suit is barred by limitation.
7.2 With regard to objection of limitation, the issue No.8 was framed and the trial Court after appreciation of material on record has decided this issued against the Rajasthan Housing Board. The trial Court has observed that after the allotment of the plot No.4-
A-7 to Vinay Kashyap, he pursued the matter at various level (Downloaded on 25/12/2022 at 05:45:52 AM) (8 of 18) [CSA-475/2018] before the different forums. He moved application in the pending suit filed by Inder Singh Sethi for impleadment but his application was dismissed. He filed contempt petition before Consumer Forum. He pursued the matter before the concerned authority of R.H.B. Finally, in backdrop of such facts, his suit instituted on 28.9.2004 was not be treated to be barred by limitation and decided issue No.8 against R.H.B. The findings on the issue of limitation has been affirmed by the first Appellate Court. Thus, findings on issue of limitation are concurrent by two courts and based on appreciation of evidence. There is no perversity in the fact findings and thus do not required to be interfered with in second appeal.
7.3 It appears from perusal of judgment dated 6.12.2006 that the trial Court dismissed the suit filed by Vinay Kashyap mainly for the reason that he should have instituted the civil suit in the nature of specific performance and not in the nature of mandatory injunction. This approach of the trial Court was not found within the parameters of law in the backdrop of present case and therefore, the first Appellate Court reverse such findings and considered that the prayer made in the civil suit for mandatory injunction is in the similar tune and accordingly quashed the judgment dated 6.12.2006, allowed the first appeal and issued direction to the Rajasthan Housing Board to allot the plot No.4-A-7 to the Vinay Kashyap vide its judgment dated 1.9.2018. 7.4 This Court, while exercising its jurisdiction under Section 100 of CPC, is not inclined to interfere with the reasoning and findings passed by the first Appellate Court. The judgment passed by the first Appellate is based on due appreciation of entire material on record and is a possible and plausible view. The first appeal is a (Downloaded on 25/12/2022 at 05:45:52 AM) (9 of 18) [CSA-475/2018] last court of fact. The fact findings recorded by the first Appellate Court is not required to be interfered with at the stage of second appeal merely for the reason that an another view is possible, unless and until the decision of first Appellate Court is not dehors to the settled principle of law or suffer from any perversity or based on no evidence. In the present case, the first Appellate Court has assigned reasons to reverse judgment of the trial Court and thereafter, by decreeing the suit, has passed directions against R.H.B and in favour of respondent Vinay Kashyap, to allot and give possession of plot No.4-A-7 to him.
8. The Hon'ble Supreme Court in case of C. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and ors. Reported in [(2020) 4 SCC 659] has observed as under:
"26.In a judgment reported as Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722], this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility (Downloaded on 25/12/2022 at 05:45:52 AM) (10 of 18) [CSA-475/2018] but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
"27. In another judgment reported as Santosh Hazari vs Purushottam Tiwari [(2001) 3 SCC 179], this Court held as under:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at 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 involved in the (Downloaded on 25/12/2022 at 05:45:52 AM) (11 of 18) [CSA-475/2018] case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration 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 any lis."
9. The Hon'ble Supreme Court in another Case of Umerkhan Vs. Bismillabi & Ors. [(2011) 9 SCC 684] has held as under:-
"11.In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without (Downloaded on 25/12/2022 at 05:45:52 AM) (12 of 18) [CSA-475/2018] formulating substantial question of law and a decision on such question.
12. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position."
10. In view of above settled principles of law, this Court is not inclined to interfere with directions issued by the first Appellate Court as far as allotment of plot No.4-7-A to the respondent Vinay Kashyap is concerned.
11. Counsel for R.H.B has made an alternative argument that the first Appellate Court while issuing direction to allot the plot No.4- A-7 to Vinay Kashyap has also passed a direction that the allotment be made at the rate applicable on 20.3.1993. He submits that with passage of time, the price of the properties has increased immensely and at least the interest at the rate of 18% on the cost assessed on date i.e. 20.3.1993 be awarded.
12. Counsel for respondent Vinay Kashyap, on instructions of his client, who is present in Court has given consent and agreed to pay interest at the rate of 18% per annum on the cost of plot No.4-A-7, as determined by the R.H.B as per rate applicable on 20.3.1993.
In view of such admission, and with the consent of learned counsel for both the parties, judgment dated 20.5.2008 modified (Downloaded on 25/12/2022 at 05:45:52 AM) (13 of 18) [CSA-475/2018] to the extent that the R.H.B would be entitled to claim the interest at the rate of 18% per annum on the cost of plot No.4-A-7, Rangbadi, Kota, assessed according to rates applicable on 20.3.1993 for making compliance of the judgment dated 20.05.2008.
13. This fact is not in dispute that the vacant possession of the plot No.4-A-7 is lying with the R.H.B and counsel for Rajasthan Housing Board admits that possession would be delivered, in compliance of judgment dated 20.05.2008, subject to compliance of the required norms by respondent Vinay Kashyap. Respondent is agreeable to do the needful to fulfill the required norms. Thus, it is needless to state that the possession would be given by R.H.B on compliance of all the requisite requirements as per the rules and norms of the Rajasthan Housing Board.
Thus, the second appeal No.279/2008 is disposed of accordingly.
Discussion on Civil Second Appeal No.475/2018:
14. As far as the second appeal No.475/2018 is concerned, it is undisputed position of record that the original plaintiff Inder Singh Sethi did not appeared as witness to depose his statements before the trial court in support of his suit.
The Supreme Court in case of Vidhyadhar Vs. Manikrao [(1999) 3 SCC 573] reiterated the following well recognized legal position;
"Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to the cross examined by the other side, a presumption would arise that the case set up by him is not correct...."
The aforesaid principle of law has been followed by Hon'ble the Supreme Court in case of Man Kaur Vs. Hartar Singh Sangha [(2010) 10 SCC 512] and in recent case of (Downloaded on 25/12/2022 at 05:45:52 AM) (14 of 18) [CSA-475/2018] Seethakathi Trust Madras Vs. Krishnaveni [(2022) 3 SCC 150].
15. Both Courts below have candidly observed that plaintiff himself has not appeared and the statements of Satish Kumar Sharma, who deposed his statement as Pw.1, are not sufficient to pass a decree to sustain allotment of plot No.4-A-7, Rangbadi, Kota in favour of plaintiff. Further it has also been revealed that this plot was initially allotted to Inder Singh but he did not deposit the demanded amount by the Rajasthan Housing Board and therefore, due to non deposition of amount, the R.H.B cancelled his allotment after filing of present suit but plaintiff never challenged the cancellation of his allotment.
16. In appeal No.475/2018, an application under Order 41 Rule 27 CPC has also been filed to place some additional documents on record, more particularly, the order of Samjhota Samiti dated 17.1.2003. Vide order dated 29.3.2022, this application was ordered to be considered at the time of hearing of second appeal. The Rajasthan Housing Board has also filed some documents in rebuttal to these additional documents to show that the appellant never deposited the amount demanded from him and allotment of plot No.4-A-7 to Inder Singh has been cancelled. Though, the counsel for appellant Inder Singh submits that few installments were deposited and the deposited amount is still laying with the R.H.B.
17. As far as the additional documents are concerned, all these documents are well within knowledge of appellant-plaintiff and could not have been placed before the trial Court. The additional documents do not fulfill the requirements of Order 41 Rule 27 (b) CPC. It is not a case that despite due diligence, appellant could (Downloaded on 25/12/2022 at 05:45:52 AM) (15 of 18) [CSA-475/2018] not produce these additional documents before the trial Court. It is a clear case of negligence on the part of plaintiff not to produce his evidence neither documentary evidence or his own examination. The laches remained on the part of plaintiff cannot be allowed to be fulfilled at the stage of second appeal.
18. The additional evidence can be allowed to be produced at the stage of second appeal, subject to fulfillment of the pre-conditions incorporated under the provisions of Order 41 Rule 27 CPC. 18.1 The Hon'ble Supreme Court in case of Basayya I. Mathad Vs. Rudrayya S. Mathad and Ors. [(2008) 3 SCC 120], while dealing with the scope of Order 41 Rule 27 CPC has observed that the production of the additional evidence cannot be allowed as of course or routine but the appellant must satisfy the conditions stated in sub-clauses (a) and (aa).
18.2 The present application does not fall on neither sub-clause
(a) nor on (aa) of Order 41 Rule 27 CPC.
18.3 In another case of Surjit Singh and Ors. Vs. Gurwant Kaur and Ors. [(2015) 1 SCC 665], the Hon'ble Supreme Court dealt with the scope of Order 41 Rule 27 CPC has held as under:
"21..At this juncture, it is necessary to clarify that sub-rule (1)
(a) of Order 41 Rule 27 is not attracted to the case at hand inasmuch as the documents were not taken on record by the trial court and error, if any, in the said order does not survive for reconsideration after the High Court has given the stamp of approval to the same in civil revision. Similarly, sub-rule (1)(aa) would not be applicable as the party seeking to produce an additional evidence on the foundation that despite exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed does not arise, for the documents were sought to be produced before the trial court. Cases may arise under sub-rule (1)(b) where the (Downloaded on 25/12/2022 at 05:45:52 AM) (16 of 18) [CSA-475/2018] appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. However, exercise of the said power is circumscribed by the limitations specified in the language of the rule. It is the duty of the court to come to a definite conclusion that it is really necessary to accept the documents as additional evidence to enable it to pronounce the judgment. The true test is, as has been held in Parsotim Vs. Lal Mohar [AIR (1931)- PC 143] whether the appellate court was able to pronounce the judgment from the materials before it without taking into consideration the additional evidence sought to be adduced. The same principle has been accepted by a three-Judge in Arjan Singh Vs. Kartar Singh [AIR (1951) SC 193]".
18.4 The present application does not fulfill the condition enumerated in Clause (b) of Order 41 Rule 27 CPC. 18.5 Thus, the additional documents prayed to be placed on record at the stage of second appeal are beyond the scope of Order 41 Rule 27 CPC and as such the application is dismissed.
19. Having considered the judgments dated 6.12.2006 and 1.9.2018, whereby and whereunder the civil suit filed by Inder Singh Sethi has been dismissed on merits, no substantial question arises out of such concurrent findings of fact. Counsel for appellant could not point out any perversity, infirmity or jurisdictional error in such fact findings. It is trite law that the concurrent findings of fact, are not required to be interfered with by the High Court while exercising its jurisdiction under Section 100 of CPC. Unless same do not suffer from any perversity or based on no evidence. No such case has been made out here before this Court to call for interference with the fact findings recorded by both Courts below.
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20. Recently in a judgment reported as State of Rajasthan vs.Shiv Dayal [(2019) 8 SCC 637], Hon'ble the Supreme Court has held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
21. In that view, the second appeal No.475/2018 filed by Legal representative of Inder Singh is devoid of merits and having involvement of no substantial question of law and same is hereby dismissed.
22. Counsel for appellant-Satish Kumar Sharma, has requested that since this Court has affirmed the direction to allot the plot No.4-A-7 to Vinay Kashyap in Civil Second Appeal No.279/2008, therefore another plot No.5-D-4 has become available to R.H.B for allotment to any other person and same has not been allotted to any third person so far. He submits that the amount deposited by Inder Singh is still deposited with R.H.B and against his priority number, no plot has been allotted, therefore, R.H.B may be directed to allot vacant plot No.5-D-4 to legal representatives of (Downloaded on 25/12/2022 at 05:45:52 AM) (18 of 18) [CSA-475/2018] Inder Singh. It is not within jurisdiction of this Court to issue any such direction, however, considering the aforesaid circumstances, legal representatives of Inder Singh may move application for seeking allotment of Plot No.5-D-4, Rangbadi, Kota before R.H.B and if any such application is moved, R.H.B is expected to consider the application sympathetically according to its rules and regulations.
23. In view of above, both second appeals stand disposed of. The Copy of order be placed in another appeal.
24. All pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J NITIN /90-91 (Downloaded on 25/12/2022 at 05:45:52 AM) Powered by TCPDF (www.tcpdf.org)