Rajasthan High Court - Jodhpur
Balveer Kumar vs Sushil And Ors on 18 November, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL NO.209/2012
APPELLANT (DEFENDANT):-
Sajjan Raj S/o late Shri Rajmal, aged about 62 years, by
caste Oswal, resident of 17E/20 Chopasani Housing Board,
Jodhpur at present residing at Fort Road, Inside Nagori Gate,
Jodhpur.
Versus
APPELLANT (DEFENDANT):-
1 Sushil Agarwal S/o Shri Sohan Lal, by caste Agarwal,
resident of Ganesh Bhawan, Mohanpura, Jodhpur. at present
R/o Sec 14 House No.47 CHB. Jodhpur.
RESPONDENTS (DEFENDANTS):-
2. Balveer Kumar Jain S/o Shri Nemichand, by caste Oswal,
resident of 10th B Road, Sardarpura, Jodhpur at present
residing at Deo Nagar, Near Link Pal Road, Jodhpur.
Chandra Shekhar S/o Shri Ramdayal, by caste Gehlot,
3. resident of Near City Police, Gandhiyon Ki Gali, Jodhpur.
CONNECTED WITH
S.B. CIVIL SECOND APPEAL NO.279/2012
Appellant (Defendant No.2)
Balveer Kumar Jain S/o late Shri Nemichand aged about 68
years, by caste Oswal, resident of 10 B Road, Sardarpura,
Jodhpur at presently residing at Deo Nagar, Near Link Pal
Road, Jodhpur.
VERSUS
Respondents.
1. Sushil Agarwal S/o Late Shri Sohanlal, by caste Agarwal,
resident of Ganesh Bhawan, Mohanpura, Jodhpur at present
residing at Sec 14, House no.47, Chopasani Housing Board,
Jodhpur.
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(Plaintiff)
2. Sajjanraj S/o Late Shri Rajmal, aged about 67 years,
by caste Oswal, resident of 17E/20, Chopasani Housing
Board, Jodhpur at presently residing at Fort Road, Inside
Nagori Gate, Jodhpur.
3. Chandra Shekhar S/o Late Shri Ramdayal, by caste
Gehlot, residing near City Police, Gandhiyon Ki Gali, Jodhpur.
(Defendants).
For Appellant(s) : Mr. Rajesh Joshi, Sr. Adv. with
Mr. Harshit Bhurani,
Mr. Vikas Balia,
Mr. T.S. Champawat,
Mr. Vashwant Mehta,
For Respondents : Mr. MR Singhvi, Sr. Adv. with
Mr. Hukum Singh,
Mr. Muktesh Maheshwari
Mr. Pradeep Gehlot for Mr. O.P. Mehta,
Mr. Govind Suthar for Mr. Manoj
Bhandari
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order Reserved on 27/08/2019 Pronounced on 18/11/2019 REPORTABLE.
1. Both these Second Appeals have been preferred against the judgment and decree dated 21/05/2012 passed by the larned Additional District Judge No.1, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as learned 'lower appellate court') in Civil Appeal No.15/2006 (Sushil Agarwal Vs. Sajjanraj & ors) whereby he has set aside the judgment and decree dated 27/02/2006 passed by the learned Additional Civil Judge (Sr. Div.) No.3, Jodhpur (hereinafter referred as learned 'trial court') in Civil Suit No.117/2003 (Shushil Agarwal Vs. Sajjan Raj & ors.) and while (Downloaded on 25/11/2019 at 08:23:29 PM) (3 of 17) [CSA 209/2012) reversing the findings of the learned trial court, has decreed the suit preferred by the plaintiff for declaration of the sale deed executed by defendants no.2 & 3 as illegal and without authority with respect to Plot No.44-A near Cheerghar, Shanti Priya Nagar, Jodhpur.
2. Brief facts which have come out in the suit proceedings are that on 14/01/1988 the defendant no.2-Balveer Kumar Jain entered into an agreement to sale of Plot No.44-A, Cheer Ghar, Shanti Priya Nagar, Jodhpur for a sum of Rs.25,000/- to the respondent no.1-Sushil Agarwal and the agreement was registered on 15/01/1988 (Exhibit 2) and possession of the plot was handed over alongwith necessary documents whereafter the plaintiff raised construction on the said plot and started using the same. However, the sale deed was not executed nor registered. In this regard, a general power of attorney dt.14/01/1988 (Exhibit A-3) was executed by Balveer Kumar Jain in favour of Sajjan Raj, the present appellant empowering Sajjan Raj to execute the sale deed of Plot No.44-A in favour of the plaintiff-respondent. 2.1 The plaintiff further came out with the case that the plot was not registered by the general power of attorney holder Sajjan Raj. In the meanwhile, the plaintiff had executed one general power of attorney for a strip of land measuring 6 ft. x 4 inch x 30 ft. in his Plot No.166-B in favour of one Chandra Shekhar for carrying out various works relating the said land. This power of attorney, wrongfully and in conspiracy with the appellant, was interpolated. It was mentioned in the power of attorney that the concerned Chandra Shekhar would also have a right to execute the sale deed in favour of Madan Singh Bhati through whom the plaintiff has received Rs.50,000/- as cash for sale of (Downloaded on 25/11/2019 at 08:23:29 PM) (4 of 17) [CSA 209/2012) Plot No.44-A situated at Cheerghar, Shanti Priya Nagar, Jodhpur. The said power of attorney dated 12/11/1990 executed on 23/11/1990 is marked as Exhibit-1.
2.2 A sale deed was executed for the Plot No.44-A in favour of Madan Singh Bhati wherein it was mentioned that the power of attorney was given by the plaintiff for selling the said Plot No.44-A and the power of attorney of Balveer Kumar Jain was also mentioned. Thus, Chandra Shekhar and Sajjan Raj, both power of attorney holders executed a sale deed in favour of one Madan Singh Bhati vide sale deed dated 02/12/1990 (Exhibit-A-12) for a sum of Rs.50,000/- which was mentioned to have already been paid to the plaintiff.
2.3 Later on, Madan Singh Bhati sold the said Plot No.44-A in favour of Sajjan Raj who is the appellant in this appeal by executing a sale deed dated 12/08/1994 (Exhibit-A-14). 2.4 The plaintiff, therefore, preferred a suit seeking setting aside of the sale deed dated 02/12/1990 alleging therein that his power of attorney which he had executed for strip of land situated in Plot No.166-B had been misused and interpolated upon. It was stated that in the sale deed Madan Singh Bhati was shown to be a tenant of the plaintiff whereas he had never been handed over possession of the said plot. A separate suit had been preferred on 13/04/1991 by Madan Singh Bhati seeking injunction against the plaintiff for restraining them from dispossessing him from the plot which was wholly based on false facts. It was further stated that Madan Singh Bhati got a Commissioner Report who submitted a report stating that possession of the plot was with Madan Singh Bhati and that no one was present on behalf of the plaintiff-Sushil Agarwal. Later on, when the plaintiff came to know, he moved an (Downloaded on 25/11/2019 at 08:23:29 PM) (5 of 17) [CSA 209/2012) application in the said suit for appointing another Court Commissioner who submitted his report and detailed out that the possession of the house had never been handed over to Madan Singh Bhati and therefore, there was no question of dispossessing Madan Singh Bhati from the said suit property.
2.5 An FIR was also registered against Madan Singh Bhati by Sushil Agarwal wherein charge-sheet was filed against Madan Singh Bhati under Sections 417, 427, 467, 468, 471 and 120-B IPC as well as against Sajjan Raj and Chandra Shekhar. However, on account of provisions of Section 195 Cr.P.C., Sajjan Raj and Chandra Shekhar were discharged.
2.6 The said suit was later on returned as an application was moved by Sajjan Raj seeking amendment of the suit who got himself substituted in place of Madan Singh Bhati claiming that he had purchased the suit property from Madan Singh Bhati. Accordingly, the suit was returned for presenting before the competent court on 12/03/1996. Thereafter, the suit was presented before the Additional District Judge. 2.7 The present suit filed by the plaintiff-Sushil Agarwal was rejected by the Trial Court on 27/02/2006 holding that the power of attorney given by the plaintiff to Chandra Shekhar was a valid power of attorney and the sale deed dated 02/12/1990 executed on the said basis was valid in law.
2.8 Relying upon the judgment passed by the Trial Court in the present suit, the Additional District Judge (Fast Track) decreed the suit presented before it by Sajjan Raj in his favour vide judgment dated 15/12/2007. The plaintiff-Sajjan Raj filed a first appeal before the Court of District Judge assailing the judgment passed by the Trial Court dated 27/02/2006.
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(6 of 17) [CSA 209/2012) 2.9 Separately, another appeal was preferred by Sushil
Agarwal challenging the judgment passed by the Additional District Judge in favour of Sajjan Raj dated 15/12/2007 in the High Court as the first appellate court.
2.10 The High Court in the first appeal upheld the judgment passed by the Additional District Judge vide his judgment dated 05/8/2011 and also observed that the sale deed dated 02/12/1990 is unquestionable and therefore, the subsequent sale deed by Madan Singh Bhati dated 12/08/1994 in favour of Sajjan Raj is also equally unassailable.
2.11. So far as the present suit filed by Sushil Agarwal which was rejected by the Trial Court dated 27/02/2006 is concerned, the appeal was decreed in his favour on 21/05/2012 holding that the power of attorney executed by the plaintiff in favour of Chandra Shekhar had been tempered with and interpolations have been made. It was also held by the Appellate Court that no such power of attorney could have ever been given by the plaintiff in favour of Chandra Shekhar for Plot No.44-A as the sale deed for Plot No.44-A had not been executed in favour of the plaintiff for which a separate suit was pending for specific performance of the agreement dated 14/15.01.1988.
2.12 Thus, the Appellate Court held that as there was no title in favour of the plaintiff, a power of attorney could not have been executed in favour of Chandra Shekhar and the subsequent sale deed executed on 02/12/1990 in favour of Madan Singh Bhati was also held to be without authority and was set aside. 2.13 So far as the judgment passed by the High Court dated 05/08/2011 in the Fist Appeal preferred by the plaintiff-Sushil Agarwal with regard to the suit decided by the Additional District (Downloaded on 25/11/2019 at 08:23:29 PM) (7 of 17) [CSA 209/2012) Judge No.3 is concerned, Sushil Agarwal has filed SLP No. 30373- 30374/2011 before the Supreme Court which has been admitted with directions to Sushil Agarwal to pay mesne profits at the rate of Rs.5,000/- per month to Sajjan Raj during pendency of the appeal. The Civil Appeal No.362-363/2013 is pending before the Supreme Court.
3. In the circumstances, the present two appeals have been preferred by Sajjan Raj and Balveer Kumar Jain. The original defendant no.3-Chandra Shekhar was ex-parte before both the courts below.
4. Chandra Shekhar, the respondent No.3, after notices in the second appeals, moved an application seeking to set aside the judgment passed by the First Appellate Court alleging that there has been concealment of material facts. It is stated that the First Appellate Court i.e. the learned District Judge being subordinate to the High Court was bound by the judgment and observations made by the High Court in the First Appeal filed by Sushil AGarwal against Sajjan Raj wherein observations have been made that the sale deed dated 02/12/1990 is unassailable and has further stated that certain facts mentioned in the order passed by the Appellate Court are factually incorrect.
5. Reply to the said application has been filed by the respondent no.1-plaintiff wherein it has been pointed out that the applicant Chandra Shekhar neither filed written statement before the Trial Court nor deposed as a witness. Chandra Shekhar was a Stamp Vendor while Sajjan Raj was a middleman in dealing with properties and the plaintiff had faith in Sajjan Raj and Chandra Shekhar who were export in matters relating to properties. A conspiracy was hatched with the purpose to grab plot of Sushil (Downloaded on 25/11/2019 at 08:23:29 PM) (8 of 17) [CSA 209/2012) Agarwal which he had purchased by sale agreement and had already paid the entire sale consideration to Balveer Kumar Jain. It was stated that Sajjan Raj, who was the power of attorney holder of Balveer Kumar Jain, who is the other appellant in Second Appeal No.279/2012, could not have sold the property further to Madan Singh Bhati and later on purchase the same in his own name. It was also pointed out that in the power of attorney executed in favour of Chandra Shekhar, which was attesed by Sajjan Raj, certain Paras were added to include the sale of Plot No.44-A by fraud and forgery committed by Chandra Shekhar and Sajjan Raj.
6. These Second Appeals have been pending since 2012 at admission stage and this Court has head both the Senior Counsels for the parties at length.
7. Learned Senior Counsel, appearing for the appellants submits that there are certain substantial questions of law which arise from the order passed by the court below and require to be addressed to in the present second appeals.
8. Learned Senior Counsel for the appellants has suggested certain questions of law which in his opinion are made out to be adjudicated by this Court.
9. Learned senior counsel for the appellants firstly submitted that the learned first appellate court has acted against the principles of judicial discipline by passing the judgment in total disregard of the findings arrived at by the High Court in the judgment passed by it in Fist Appeal preferred by the plaintiff in the separate suit filed by Madan Singh Bhati/Sajjan Raj. It is his submission that the learned first appellate court, while hearing the first appeal, was bound to follow the law laid down by the High (Downloaded on 25/11/2019 at 08:23:29 PM) (9 of 17) [CSA 209/2012) Court in its judgment wherein it observed that the sale deed dated 02/12/1990 is unassailable.
10. Per-contra, learned senior counsel for the respondents submitted that such an issue cannot be made as a substantial question of law. It is his submission that it cannot even be said to be a question of law at all for adjudication as admittedly, the sale deed dated 02/12/1990 was not a subject matter of dispute in the suit proceedings preferred by Sajjan Raj (Madan Singh Bhati) and the said sale deed was not a subject matter of examination in the First Appeal decided by the High Court which is under challenge before the Supreme Court. It is submitted that unless a specific issue would have been framed under Order 14 Rule 1 CPC relating to the sale deed dated 02/12/1990 and the said issue would have been decided in the proceedings by the High Court, any observation made in the said judgment would have no bearing to the present suit where the issue was specifically framed with regard to legality and validity of the sale deed dated 02/12/1990.
11. This Court has earnestly examined the aspect and finds that for a question of law to be a substantial question of law in the present appeals, the said question should be inherent in the suit proceedings. An observation made in another suit proceedings where there is no issue involved regarding the sale deed, could not have been gone into or made a basis for deciding the present suit. Admittedly, the proceedings before the High Court related to a different issue altogether. No issue was framed in the said suit proceedings with regard to the sale deed dated 02/12/1990 and the question involved was purely whether Madan Singh Bhati was having possession of the property and whether he had been forcefully dispossessed. Thus, in the opinion of this Court, the (Downloaded on 25/11/2019 at 08:23:29 PM) (10 of 17) [CSA 209/2012) learned First Appellate Court in the present suit proceedings rightly did not get swayed by the observations made by the High Court in the different suit proceedings where the subject matter was totally different. No case for judicial indiscipline is made out as against the learned First Appellate Court.
12. In the opinion of this Court, the learned lower appellate court has not committed any fault in placing the judgment in "D" part of the record. This Court is satisfied that the judgment passed in first appeal by this Court was in relation to a suit for permanent injunction as noticed herein before. The said suit filed by Mr. Madan Singh Bhati on 13/04/1991 seeking injunction against Mr. Sushil Agarwal is a subject matter of appeal pending before the Supreme Court bearing Civil appeal No.362-363/2013 wherein leave has been granted. In the said suit, there was no issue framed for adjudication between the parties relating to validity and legality of the sale deed dated 02/12/1991 which is a direct question involved in the present suit and has been made as a specific issue for adjudication.
13. Therefore, in the opinion of this Court, an observation made in another suit relating to the said deed dated 02/12/1990 without issues being framed by the first appellate court (even though it may be by the High Court as the first appellate court), could not have influenced or be made as a presidential law for deciding first appeal by the learned District Judge. He was therefore right in not referring the matter in a different suit passed by the first appellate Court (High Court) and it cannot be said that any principle of judicial discipline has been violated. The powers of a District Judge in deciding a first appeal are similar of a High Court deciding a first appeal. It is the appellate power which matters and not level (Downloaded on 25/11/2019 at 08:23:29 PM) (11 of 17) [CSA 209/2012) of the Court. Therefore, when a District Judge decides a first appeal relating to the issues involved in the suit, he is not required to be governed by an order passed by another first appellate court in a different suit where the issue directly or indirectly was not framed relating to the question being decided by him in appeal. Therefore, no substantial question of law on the aforesaid aspect can be said to be made out.
14. This Court also finds that the learned First Appellate Court has examined in detail each and every affidavit, statements and the documents produced before it. The submission of learned senior counsel for the appellants with regard to the learned appellate court having gone beyond the pleadings of the parties is found to be without any basis. The learned First Appellate Court has given its findings and reached to the conclusion that the signatures of the plaintiff were not present on each page of the power of attorney which was executed in favour of Chandra Shekhar. Such finding is a factual finding which does not call for interference at the second appellate stage. A finding of fact arrived at by the learned First Appellate Court with regard to interpolations in the power of attorney cannot be substituted by this Court at the second appellate stage as they are pure findings of fact having no question of law involved.
15. Learned senior counsel for the appellants has taken pains to press upon the submission that Sushil Agarwal has admitted his signatures on the power of attorney which is a registered document and therefore, the entire power of attorney will have to be treated as genuine. In this context, this Court finds that the said aspect has been dealt with by the learned First Appellate Court and has relied upon judgments passed by the Supreme (Downloaded on 25/11/2019 at 08:23:29 PM) (12 of 17) [CSA 209/2012) Court with regard to the law relating to power of attorney and reached to the conclusion that the power of attorney was interpolated. It has been also observed that Sajjan Raj and Chandra Shekhar were both persons having deep knowledge relating to the instruments, one of them being a Stamp Vendor and the other being a middleman in property dealing. The aspect relating to the property having been purchased by Sajjan Raj subsequently in his own name also has been dealt with by the learned First Appellate Court.
16. During the course of arguments, it has been informed that Madan Singh Bhati was a mere puppet and had actually no role to play. He has given a statement in the court proceedings that he was working as a Conductor. All these aspects deter this Court from again examining the power of attorney and the fraud payed at the second appellate stage.
17. In Krishna Mohan Kul @ Nani Charan Kul & anr. Vs. Pratima Maity & ors: AIR 2003(SC)4351 wherein it was held as under:-
"There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so (Downloaded on 25/11/2019 at 08:23:29 PM) (13 of 17) [CSA 209/2012) that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who inpeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights (Downloaded on 25/11/2019 at 08:23:29 PM) (14 of 17) [CSA 209/2012) under the document irrespective of the fact whether such party is the defendant or plaintiff before Court."
18. Thus, the learned First Appellate Court was competent to examine the said aspect relating to fraud, undue influence and has find that the obligation was with the beneficiary under the document to prove due execution of the same. Admittedly, Chandra Shekhar, who was the beneficiary of the power of attorney, has chosen not to appear in evidence or even file written statement. Thus, this Court is satisfied that the findings and conclusions drawn by the learned First Appellate Court do not suggest any substantial question of law which can be said to be examined by this Court at the second appellate stage. The conclusions of the sale deed having been executed based on forged power of attorney is a finding of fact and ought not be disturbed at the second appellate stage.
19. Section 100 CPC deals with second appeals. As per sub- section (4) thereto, the High Court of obliged to formulate question if it is satisfied that a substantial question of law is involved in the case whereafter the appeal is required to be heard on the question so formulated. Even at the time of hearing finally, a party can raise objection that there is no substantial question of law involved and if the Court is satisfied that there is no substantial question of law involved and the question framed is not a substantial question of law, the High Court may dismiss the second appeal. Power is also available to frame any substantial question of law which may not have been framed earlier. Thus, hearing of the appeal can only be after framing of the substantial question of law [see 2018(11) 652, Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar].
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20. It is also thus settled that at the admission stage, the High Court may dismiss an appeal if it finds that there is no substantial question of law involved in the appeal [see 2015(16) SCC 540, Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha].
21. It is also now well settled that a new plea, which has not been raised upto first appellate stage, would not be allowed to be raised at the stage of second appeal if it does not involve substantial question of law [see AIR 1997 (SC) 2517, Khshitish Chandra Purkait Vs. Santosh Kumar Purkait & ors.)
22. In Sir Chunilal Vs. Mehta and Sons Ltd.: AIR 1962 (SC) 1314 guidelines were laid down by the Constitutional Bench as to what is a substantial question of law and it was held as under:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
23. Thus, the question sought to be framed as a substantial question of law by the learned senior counsel for the appellants on the ground that there was a finding given by the High Court in First Appeal earlier relating to the sale deed dated 02/12/1990 and would act as res-judicata for the First Appellate Court in the present case and such a question would be substantial question of (Downloaded on 25/11/2019 at 08:23:29 PM) (16 of 17) [CSA 209/2012) law to be examined, this Court finds that the three Judges Bench of the Supreme Court has already held in K. Muthuswami Gounder Vs. N. Palaniappa Gounder: (1998) 7 SCC 327 that "when the entire matter was still in appeal and any part of the finding could varied by the appellate court, it is idle to contend that the same had become final." So also, when the matter attained finality and was still in dispute, the principle of res judicata could not arise. Thus, since the order of the High Court is in appeal before the Supreme Court in Civil Appeal, the order of the High Court would not act as a res judicata and such a question of law having already been settled in K. Muthuswami Gounder (supra), this Court is not required to frame again the same as substantial question of law.
24. In Kashmir Singh Vs. Harnam Singh & ors.: 2008 AIR (SCW) 2417, the three Judges Bench of the Supreme Court held as under:-
"15. 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, insofar 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 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. (See (Downloaded on 25/11/2019 at 08:23:29 PM) (17 of 17) [CSA 209/2012) Santosh Hazari V. Purshottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]."
25. Taking into consideration the aforesaid law and the facts as have been noticed and the findings arrived at by the First Appellate Court, this Court is satisfied that no substantial question of law arises which has a material bearing on the decision of this case. The First Appellate Court, while setting aside the order of the trial court, has examined the evidence independently based on legal principles and such principles which have been followed are no more debatable i.e. to say stand already settled by the judgments of the Apex Court. There is no misconstruction or misreading of any document and there is no wrong application of principles of law while interpreting the documents. Hence, no fresh examination of any question of law is required to be made in these second appeals.
26. Accordingly, both the second appeals are dismissed. The judgment and decree passed by the First Appellate Court is upheld. All pending applications noticed and discussed above also stand disposed of accordingly. The record of the courts below be sent back.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 25/11/2019 at 08:23:29 PM) Powered by TCPDF (www.tcpdf.org)