Rajasthan High Court - Jodhpur
Harish Chandra Rawal vs Smt Ratna Rawal & Ors on 3 January, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.Civil Second Appeal No. 136 / 2016
Harish Chandra Rawal son of Shri Devkrishna, by caste Brahman,
resident of Padardi, Tehsil Sagwara, District Doongarpur.
----Appellant-Plaintiff
Versus
1. Smt Ratna Rawal wife of Late Shri Bhagwati Shankar Rawal, by
caste Brahman, aged about 40 years, resident of Padardi Badi,
Tehsil Sagwara, District Doongarpur.
2. Umesh son of Late Shri Bhagwati Shankar Rawal, aged about
38 years, by caste Brahman, resident of Padardi Badi, Tehsil
Sagwara, District Doongarpur.
3. Gram Panchayat, Padardi Badi through Sarpanh Gram
Panchayat Padardi Badi, Tehsil Sagwara, District Dungarpur.
4. Secretary, Gram Panchayat Padardi Badi, Tehsil Sagwara,
District Dungarpur.
----Respondents-Defendants
_____________________________________________________
Counsel For Appellant(s) : Mr. K.R. Saharan
Counsel For Respondent(s) : Mr. Pankaj Sharma
Mr. R.S. Mankad
_____________________________________________________
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment 03/01/2017
1. Heard counsel for the parties.
2. It is contended by counsel for the appellant that a Patta was issued in favour of the appellant in September, 1987 by the (2 of 8) [CSA-136/2016] Gram Panchayat, the appellant filed a suit for permanent injunction which was decreed. The respondent herein preferred an appeal which has been allowed and the suit of the appellant has been dismissed.
3. It is contended that a Bapi Patta has been issued in favour of the respondents no.1 & 2 in July, 2007 which was not issued in accordance with Rajasthan Panchayati Raj Act, 1994.
4. Counsel for the appellant has placed reliance on Krishan Mohan Meena Vs. The Additional District Collector, District Baran in S.B. Civil Writ Petition No.11886/2009.
5. Counsel for the respondents no.1 & 2 have opposed the appeal on the ground that there is finding of fact and a second appeal does not lie if a substantial question of law is not involved. It is contended that plaintiff himself in his cross examination has admitted that Patta was issued in his name in place of his father. He has also admitted that the property was not purchased by him in an open auction. It is contended that from Ex.A-1, it is apparent that the appellant has got his name mutated being son of Devkrishna. It is further contended that the appellate court has rightly dismissed the suit holding that the property was not partitioned during the lifetime of Devkrishna and that the appellant was not having exclusive possession of the same.
6. I have considered the arguments put forth by counsel for the parties.
7. The Panchayat Samiti in this case before issuing Bapi Patta has issued notice to the appellant and afforded him opportunity of hearing and submitting relevant documents and has (3 of 8) [CSA-136/2016] thereafter come to the conclusion that wrong patta has been issued to the appellant. A Bapi Patta was therefore, issued dividing the property into two.
8. The appellant herein was aware of the fact that the respondent has applied for issuance of patta. The patta was issued in favour of the appellant prior to the filing of the suit, the fact that the patta has been issued in favour of the respondent was also mentioned in the written statement filed by the respondent. The appellant did not care to amend the plaint and incorporate pleadings with regard to wrong issuance of the patta.
9. From the statement of the plaintiff, it is apparent that the property originally belonged to Devkrishna and the property was an open plot, thus, the contention that he was in exclusive possession do not have any force. Moreover, he has himself admitted in his cross examination that all were residing in common and separated only after the demise of their father. He has also admitted in his cross examination that the plot remained vacant even after demise of their father and there is no construction made thereupon.
10. The Hon'ble Apex Court in (2016) 10 Supreme Court Cases 315 Syeda Rahimunnisa Vs. Malan Bi has laid down the tests, which are required to be considered for determining whether the question of law is substantial or not. It is observed in para 25 of the judgment as under:
"25. A three-Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari speaking through R.C. Lahoti, J. ( as his Lordship then was) examined the scope of Section 100 CPC in (4 of 8) [CSA-136/2016] detail and laid down the following propositions in paras 9, 10, 12 and 14 as under:
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code.
10. At the very outset we may point out that the memo of second appeal filed by the appellant-plaintiff before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case".
An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is (5 of 8) [CSA-136/2016] circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and
(ii) the High Court records reasons for its satisfaction.
12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The words substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as (6 of 8) [CSA-136/2016] it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Chunilal v. Mehta & Sons Ltd. v. Century Spg. And Mfg. Co. Ltd. the Constitution expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju.
'5. . . . . .when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law .' And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
'6. . . . . .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 (7 of 8) [CSA-136/2016] 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.'
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, 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 decider 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 circumstances of each case whether a question of law is (8 of 8) [CSA-136/2016] 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".
11. The contention of counsel for the appellant that his patta was not cancelled and a Bapi Patta was issued is against the record as in the proceedings drawn while issuing Bapi Patta, it has been clearly mentioned that the patta as issued has been cancelled. The appellant was afforded opportunity before his patta was cancelled, the appellant has not challenged the cancellation order in spite of being aware that his patta has been cancelled and a Bapi Patta has been issued. There being no foundation in the pleadings and no question being emerging from the sustainable finding of fact, no substantial question of law is made out in this case.
10. The appeal is accordingly dismissed. The stay application also stands disposed.
(PANKAJ BHANDARI)J. zeeshan/