Chattisgarh High Court
Smt.Kanti Bai And Ors vs Tularam And Ors on 23 June, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 286 of 2014
1.Smt. Kanti Bai W/o. Chhabilal, aged about 47 years,
2.Devkumar, aged about 17 years,
3.Chandrakumar, aged about 15 years,
Appellant No. 2 and 3 are minor; both father Chhabila, through natural
guardian mother Smt. Kantibai, Caste by Mahar.
All R/o. Village Chicha, Police Station Arjunda, Tahsil Gunderdehi,
District Balod (CG) ---------Appellants/Plaintiffs
VERSUS
1. Tularam S/o. Hiraman Halba, aged about 54 years, R/o. Village
Gorkapar, Tahsil Gunderdehi, Distirct Balod (CG)
2. Khemlal S/o. Heeraman Halba, aged about 46 years, R/o. Village
Gorkapar, Tahsil Gunderdehi, District Balod (CG)
3. State of Chhattisgarh through Collector, Balod, District Balod (CG)
----------Respondents/Defendants
SA No. 287 of 2014
1. Smt. Kanti Bai W/o Chhabilal Aged About 47 Years,
2. Devkumar S/o Chhabilal Aged About 17 Years,
3. Chandrakumar S/o Chhabilal Aged About 15 Years,
Appellant No. 2 and 3 are minor, both father Chhabilal, through natural
guardian mother Smt. Kantibai, Caste Baya Mahar,
All R/o.Village Chicha, Police Station Arjunda, Tahsil- Gunderdehi,
District Balod (CG) ---- Appellants
Versus
1.Ghasiya Ram S/o Late Dular Halba Aged About 73 Years R/o Village
Gorkapar, Tahsil Gunderdehi, District Balod, Chhattisgarh
2.State Of Chhattisgarh Through Collector, Balod, District Balod, C.G.,
District : Balod, Chhattisgarh
2
---- Respondents
SA No. 288 of 2014
1.Smt.Kanti Bai W/o Chabilal Aged About 47 Years,
2.Devkumar S/o Chhabilal Aged About 17 Years,
3.Chandrakumar S/o Chhabilal Aged About 15 Years,
Appellant No. 2 and 3 are minor both father Chhabilal, through natural
guardian mother Smt. Kantibai, Caste Baya Mahar,
All R/o. Village Chicha, Police Station Arjunda, Tahsil Gunderdehi,
District Balod (CG) ---- Appellants
Versus
1. Ayodhya Prasad S/o Late Jivrakhan Halba, Aged About 35 Years, R/o
Village Gorkapar, Tahsil Gunderdehi, District Balod, C.G.,
2. Rahimat Bai W/o Dhal Singh Aged About 30 Years D/o Late Jivrakhan
Halba, R/o Nawagaon, Tah. Gunderdehi, Distt. Balod C.G.,
3. Khorbahrin W/o Radhe, D/o Late Jivrakhan, Aged About 50 Years, R/o
Nawagaon, Tahsil Gunderdehi, District Balod (CG)
4. State of Chhattisgarh W/o Through- Collector, Balod, Distt. Balod
C.G., District : Balod, Chhattisgarh ---------Respondents
-----------------------------------------------------------------------------------------------
For the Appellants : Mr. H. B. Agrawal, Sr. Advocate along with Ms. Richa Dwivedi, Advocate For the Respondent/State : Mr. Vimlesh Bajpai, Govt. Advocate
-----------------------------------------------------------------------------------------------
Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 23.06.2022
1. Heard on admission.
2. Since the issues involved in the aforesaid Second Appels are identical;
therefore, they are heard anologous and are being disposed of by this common order.
3. This Second Appeals under Section 100 of Civil Procedure Code, have been filed by the plaintiffs against the judgment and decree dated 03.05.2014 passed by District Judge, Balod District Balod (CG) in Civil 3 Appeal No. 39-A/2013 affirming the judgment and decree dated 27.09.2012 passed by Civil Judge Class-I Gundardehi in Civil Suit No. 118-A /2011 for declaration, permanent injunction.
4. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 118-A /2011 before the trial Court.
5. The relevant facts leading to the filing of second appeal, briefly, are that the plaintiff has filed the civil suit before learned Civil Judge Class -II contending that defendant No.1 and 2 belonged to Halva caste which is Schedule Tribe Community as defined in the Sr. No.17 of the Schedule issued under Constitution (Schedule Tribes) order 1950 and title holder of the suit property situated at village Chicha, P.H. No. 7, Revenue Circle Arjunda, Tahsil Gundardehi, District Durg, khasra No. 341/1, area 0.12, khasra no. 946/2, area 0.07, khasra no. 1076/3, area 0.16, total khasra no. 3, total area 0.35 RA. The defendant no. 1 and 2 have executed an agreement to sell the suit property in presence of the witnesses namely Bhoduram Sahu and Maniram, who were residents of village Chicha. The agreement was executed on 12.03.1999 and Rs. 3000/- was paid to the defendants No. 1 and 2 as advance in presence of the witnesses. It has been further contended that defendant No. 1 and 2 belonged to Scheduled Tribe Community, therefore, before execution of sale deed, permission of Collector is required as per the provisions of Section 165 of the Land Revenue Code and the same was obtained with a condition that the defendant will purchase similar property and their registration will be executed simultaneously. It has also been contended that plaintiff has paid Rs. 3,000/- on 12.03.199, Rs. 1000/- on 17.10.2001 and Rs. 2000/- on 30.09.2003 thus total Rs. 6000/- to defendants and remaining amount Rs. 18,000/- is payable at the time of registration of sale deed and the possession of the property was handed over to the plaintiffs. Despite permission sought from the Collector by the plaintiff, the respondents were avoiding the execution of the sale deed, therefore, the plaintiffs have sent legal notice through his counsel on 04.05.2005, which was received by them. It has been further contended that since the plaintiff is in possession of the property 4 and were doing agricultural work but the defendant No. 1 and 2 have not made any attempt to execute the sale deed despite issuance of notice, as such, the plaintiff has filed suit claiming following relief.
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6. The defendant No. 1 and 2 have filed their written statement contending that Collector, Durg has granted conditional permission on 23.10.2001 but that order has not been assailed by the plaintiff, as such the conditional order has attained finality, therefore, the present suit is not maintainable. It has also been contended that at present the suit property is valued at Rs. 1,70,000/- which suit is under valued, hence not maintainable. It has been further contended that as per section 165(6) of Chhattisgarh Land Revenue Code, since the defendant No. 1 and 2 are tribal, therefore, even the agreement to sale cannot be done without the permission of the Collector as such the agreement is null and void and cannot be executed therefore, the suit is not maintainable and deserves to be rejected.
7. On the pleading of the parties, learned trial Court has framed as many as six issues. Issue no. 5 is important for adjudicating of the case and is being extracted below;-
Whether in view of the bar contained in section 165(6) of Chhattisgarh Land Revenue Code the plaintiff is 5 debarred from granting any relief.
8. The plaintiff to substantiate his claim has examined herself as (PW-1), Bhonduram (PW-2), Nihal Singh (PW-3), Laxman (PW-4) and exhibited documents agreement (Ex.P-1), Receipt (Ex.P-2), letter dt. 30.09.2003 (Ex.P-3), statement of Tularam (Ex.P-4), statement of khemlal (Ex.P-5), statement of Kantibai (Ex.P-6), amended report (Ex.P-7), Order sheet (Ex.P-8), Order of Collector, Durg dated 07.12.2001 (Ex.P-9), receipt (Ex.P-10), post card (Ex.P-11), legal notice (Ex.P-12), registered letter (Ex.P-13), copy of non- cognizable under Section 155 CrPC (Ex.P-14) dated 18.06.2009 and copy of non- cognizable under Section 155 CrPC dated 11.08.2009. The defendant to substantiate his claim has examined Khemlal (DW-1) and Thansingh (PW-2).
9. Trial Court after appreciating the evidence, material on record has dismissed the suit vide judgment and decree dated 27.09.2012 . Learned trial Court while deciding issue no. 1 has recorded a finding that as per provision of Section 165(6) (2) of Land Revenue Code and the fact that the defendant No.1 and 2 are the tribles, therefore, without permission of the Collector the land cannot be transferred as such Ex.P-1 i.e. the agreement is null and void. Learned trial Court has also recorded a finding that even the receipts Ex.P-2 are in existence still does not confer any right to the plaintiff in view of bar contained in land revenue Code. Learned trial Court while deciding the suit with regard to issue no. 1 has also recorded a finding that the suit is barred by limitation in view of Article 58 of the Limitation Act 1963 as the plaintiff should have filed the suit within three years from the date of notice i.e. 4.5.2005 whereas the present suit has been filed on 25.09.2009 thus barred by limitation of three years. Learned trial Court examined all the aspects of the matter and has dismissed the suit of the plaintiff.
10. Being aggrieved and dissatisfied by the judgment and decree passed by trial Court the plaintiff has preferred first appeal under Section 96 CPC before District Judge, Balod. Learned District Judge, Balod after appreciating the provisions of Section 165(6) of the land Revenue Code and other aspects of the matter has dismissed the appeal. Learned first 6 Appellate Court while deciding the appeal has taken note of provisions of section 165(6) the Land Revenue Code which provides that without the leave of the Collector no agreement for sale of property by the trible to non-trible could be executed and the trial Court has recorded the findings which is inconformity with section 165(6) of Chhattisgarh Land Revenue Code. The plaintiff has failed to point out any perversity or illegality in the judgment and decree passed by the learned trial Court , therefore, the judgment and decree passed by the trial Court does not warrant any interference. Accordingly, the first appeal was dismissed. Being aggrieved and dissatisfied with the judgment and decree passed by the Appellate Court, the appellant preferred the instant second appeal before this Court under Section 100 CPC.
11. Learned Sr. counsel for the appellant would submit that the defendants have not disputed about the factum of receiving the money and execution of agreement as such as per provisions contained in Order 12 Rule 6 CPC the judgment and decree should have been passed by the learned trial Court in favour of the plaintiff . Learned trial Court as well First appellate Court have not taken into consideration the admission of the fact by the defendants and on the perverse finding the suit has been dismissed, therefore, substantial question of law exists and appeal deserves to be admitted.
12. I have heard learned counsel for the appellant and perused record of the Courts below with utmost satisfaction.
13.
14. From bare perusal record, it is not in dispute that defendants are triables therefore; it was burden of proof on the plaintiff that the requirement under Section 165 (6) of the Code was compelled compiled by them before executing agreement. For better understanding the legal provision, it is expedient for this Court to extract below the provisions which is as under;-
165 of the Chhattisgarh Land Revenue Code:-
165. (I) Subject to the other provisions cf this section and the provision of section 168 a Bhumiswami may transfer [ - x - x - - ,]2 any interest in his land.7
(2) Notwithstand.ing .anything contained in sub-sectic1'. (1)-(a) no mortgage of any land by a Bhumiswami shall hereafter be valid unless atleast five acres of irrigated or ten acres of umrn-gated land is left with him free from any encumbrance or charge;
(b) subject to the provii-.iuns of clame (a), no usufructuary mortgage of any land by a Bhum,swami shall hereafter be valid if it is for- a period exceeding six years and unless it is a condition of the mortage that on the expiry of the period mentioned in the mortgage deed, the mortgage deed shall be deemed, without any payment whatsoever by the Bhurniswami to have been redee-
med in full and the mortgagee shall forthwith re-deliver possession of the mortaged land to the Bhumiswami;
(c) if any mortgagee in possession of the land mortgaged does not hand over possession of land after the expiry of the period of the mortgage or six years whichf.'ver expires first the mortgagee shall be liable to ejectment by the orders of the Tahsildar as trespasser and the mortgage shall be placed in possession of the land by Tahsilar;
[Provided that nothing in this sub-section shall apply in the case of a mortgage of any land held by a Bhumiswa..mi for non-agricultural purpose.
(3) Where a Bhumiswami effects a mortgage other than a usufructuary mortgage of his land in pursuance of the provisiomi of sub-sectjon (2), then notwithstanding anything contained in the mortgage deed, the total amount of interest accruing under the mortgage shall not exceed half the sum of the principal amount :advanced by the mortgagee.
(4) Notwithstanding anything containrd in sub section (1), no bhumiswami shall have the right to transfer and land-
(a) in favour of any person who shall as a result of the transfer become."" entitled to land which together with the land, if any, hdd by himself or by his family will in the aggregate exceed such ceiling limits as may be prescribed;
(b) (Omitted) (Provided that -
(i) nothing in this sub-:section shall apply-
(a) (i) in the case of a transfer in favour of an institution established for a public, religious or charitable purpose or a transfer for industrial purpose or a transfer by way of mortagage;
8(ii) in the case of a transfer in favour of cooperative society for industrial purpose or a transfer by way of mortgage subject, however, to the conditon that no mortgage for agricultural purposes shall authorise sale for recovery of an advance in contravention of clause (b) of section 147.
(b) in the case of transfer of land held for non -agriculture purpose.
Provided further that the transfer of land under sub-clause
(a) of clause(i) of the preceding proviio for an industrial purpose shall be subject to the following conditions, namely : --
( i) if such land i s to be diverted to a non-agricultural purpose, the permission of the Sub-Divisional Officer under Section 172 for such diversion is obtained prior to such transfer; and ( ii) the provisions of Sect ion 172 shall apply to such transfer with the modif ication that the per iod of three months and 1[one month] 2[ six months] mentioned in the proviso to sub-section (1) thereof shall, for the purposes of an application for such diversion, be forty-five days and 1[one month] respectively.] Explanat ion.--For the purposes of thi s sub-section, a person's family shall consi st of the person himself, the minor children and the spouse of such per son living jointly with him and if such per son is a minor then hi s parent s living jointly with him.
(5) Notwithstanding anything to the contrary in any other enactment for the time being in force, no land of a bhumiswami shall, in execution of a decree or order of a Court, be sold to any per son who as a result of such sale shall become entitled to land which together with the land, if any, held by himself or by his family will in the aggregate exceed such ceiling limits as may be prescribed.
[Provided that nothing in thi s sub-section shall apply in the case of a cooperative society where any land i s to be sold in execution of a decree or order passed in favour of such society after exhausting the procedure prescr ibed in Section 154-A. Explanat ion--For the purposes of thi s sub-section, the expression "a per son's family" . shall have the same meaning as as signed to it in sub-section (4).
[(6) Notwithstanding anything contained in sub-section (1) the right of bhumiswami belonging to a tr ibe which has been declared to be an abor iginal tribe by the State 9 Government by a notif ication in that behalf for the whole or part ofthe area to which this Code applies shall-
(i) in such areas as are predominately inhabited by aboriginal tr ibes and from such date as the State Government may, by notif ication, specify, not be transfer red nor it shall be transfe,rable.either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specif ied in the notification;
( ii) in areas other than those specif ied in the notif ication under clause ( i),not to be transfer red or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permi ss ion of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing.
Explanation.--For the purposes of This sub-section the expres sion "otherwi se" shall not include lease.
[(6-a) Notwithstanding anything contained in sub-section (1) , the right of a bhumi swami other than a bhumi swami belonging to a tr ibe which has been declared to be an aboriginal tribe under sub-section (6), in the land excluding the agr icultural land] shal l not be transfer red or be transferable either by way of sale or otherwi se or as a consequence of transaction of loan to a person not belonging to abor iginal tr ibe without the permis sion of the Collector given for reasons to be recorded in writing.
Provided that every such transfer effected rafter the 9th day of June, 1980but before the 20th Apr il, 1981] which is not in accordance with the provi sions herein contained shall, unless such transfer if ratif ied by the Collector in accordance with the provi sions hereinaf ter contained, be void and shall be of no ef fect what soever, notwithstanding anything contained in thi s Code or any other law for the time being in force.
(6-b) Notwithstanding anything contained in the Limitation Act, 1963 (No.36 of 1963), the Collector may on hi s own motion at any time or on an application made in this behalf within three year s of such transaction in such form as may be prescr ibed, make an enquiry as he may deem fit, and may, af ter giving a reasonable oppor tunity of being heard to the per sons af fected by the transfer , pas s an order ratifying the transfer or refusing to ratify the transfer.
(6-c) The Collector shall in passing an order under sub-section (6-a) granting or refusing to grant permi s sion or under sub- section (6-b) ratifying or refusing to ratify the transaction shall 10 have due regard to the following : --
( i) whether or not the per son to whom land is being transferred i s a resident of the Scheduled Area; ( ii) the purpose to which land shall be or is likely to be used af ter the transfer;
( iii) whether the transfer serves, or i s likely to serve or prejudice the social, cultural and economic interest of the resident s of the Scheduled Area;
( iv) whether the considerat io.n paid i s adequate;
(v) whether the transaction is spurious or benami and
(vi) such other matters as may be prescribed.
The decision of the Collector granting or refusing to grant the permission under sub-section (6-a) or ratifying or refusing to ratify the 'transaction of transfer under sub-section (6-b) , shall be final, notwithstanding anything to the contrary contained in thi s Code. Explanat ion.--For the purpose of thi s sub-section, --
(a) "Scheduled Area" means any area declared to be a Scheduled Area within the State of Madhya Pradesh under paragraph 6 of the Fif th Scheduled to the Constitution of India;
(b) the burden of proving that the transfer was not spur ious,fictitious or benami shall lie on the per son who claims such transfer to be valid.
(6-d) On refusal to grant the permis sion under sub-section (6-a) or ratification under sub-section (6-b) , the transferee, if in posses sion of the land shall vacate the pos ses sion for thwith and restore the possession thereof to the original bhumiswami. (6-e) If the bhumi swami for any reason whatsoever fails or i s unable to take posses sion of the land of which the r ight of posses sion stands restored to him under sub-section (6-d) , the Collector shall cause the posses sion of land to be taken and cause the land to be managed on behalf of the bhumi swami subject to such terms and conditions as may be prescr ibed till such time as the or iginal bhumi swami enter s upon hi s land Provided that if any resi stance is of fered in restor ing posses sion, the Collector shall use or cause to be used such force as may be neces sary.
[ (6-ee) The agr icultural land transfer red by the bhumiswami other than a bhumiswami belonging to an abor iginal tribe declared under sub-section (6) to a per son not belonging to an aboriginal tribe shall not be diverted for any other purpose before the expiry of period of ten year s f rom the date of transfer;] (6-f ) The provisions of sub-section (6-a) to 2[ (6-ee) ] shall have ef fect, notwithstanding anything to the contrary contained in thi s Code or any other law for the time being in force.] 11 (7) Notwithstanding anything contained in sub-section (1) or in any other law for the time being in force --
[(a) where the area of land compr ised in a holding or if there be more than one holding the aggregate area of all holdings of a bhumi swami is in excess of five acres of ir r igated or ten acres of unirr igated land, then only so much area of land in hi s holding or holdings shall be liable to attachment or sale in execution of any decree or order as i s in excess of five acres of ir rigated or ten acres of unir rigated land;]
(b) no land comprised in a holding of a bhumiswami belonging to tatribe which has been declared to be an aboriginal tr ibe under sub-section (6) shall be liable to be attached or sold in execution of any decree or order ;
(c) no receiver shall be appointed to manage the land of a bhumi swami under Section 51 of the Code of Civil Procedure, 1908 (V of 1908)nor shall any such land vest in the Cour t or any receiver under the Provincial Insolvency Act, 1920 (V of 1920), contrary to the provi sions of clause (a) or clause (b) Provided that nothing in this sub-section shall apply where a charge has been created on the land by a mortgage.
[(7-a) Notwithstanding anything contained in sub-section (1), no bhumiswami specif ied in Section 33 of the Madhya Pradesh Bhoodan Yagna Adhiniyarn, 1968 (No. 28 of 1968) shall have the r ight to transfer any interest in his land specif ied in the said section without the permi ssion of the 2[Collector] [ (7-b) Notwithstanding anything contained in sub-section (1), 4[a per son who holds land f rom the State Government or a person who holds land in bhumiswami r ights under sub-section (3) of Section 158] or whom right to occupy land i s granted by the State'Government or the Collector as a Government lessee and who subsequently becomes bhumi swami of such land, shall not transfer such land without the permission of a Revenue Off icer , not below the rank of a Collector , given for reasons to be recorded in writing.] (8) Nothing in this section shall prevent a bhumi swami f rom transfer ring any right in his land to secure payment of, or shall af fect the r ight of the State Government to sell such right for the recovery of an advance made to him under the Land Improvement Loans Act, 1883 (XIX of 1883) or the Agr icultur ist Loans Act,1884 (XII of 1884).
[(9) Nothing in thi s section shall --
( i) prevent a bhumiswami f rom transferr ing any r ight in his land by way of mor tgage to secure payment of an advance made to him by cooperative society subject to the condition that the land shall not be sold to secure recovery, without exhausting the procedure prescr ibed in Section 154-A; or
(ii) affect the right of any such society to secure recovery or an advance made to him, in accordance with the provi sions of Section 154-A 12 [(9-a) Nothing in thi s section shall prevent a bhumi swami who is a displaced per son from transfer ring any r ight in his land to secure payment of an advance made to him by the Dandakaranya Development Authority or shall af fect the r ight of that Author ity to sell such r ight for the recovery of such advance.
Explanat ion. -- In this sub-section "di splaced person" means a person displaced f rom the ter ritor ies now compr ised in East Paki stan who is resettled in Madhya Pradesh on or after the 1st day of Apr il, 1957, under any scheme of resettlement of di splaced per sons sanctioned by the Central Government or the State Government.] [ (9-b) Nothing in this section shall prevent a bhumiswami f rom transferring any right in hi s land to secure payment of an advance made to him by a Commercial Bank for purpose of agr iculture or improvement of holding or shall af fect the r ight of any such Bank to sell such r ight for the recovery of such advance.] (10) Notwithstanding anything contained in the Indian Regi stration Act, 1908 (XVI of 1908), no of ficer empowered to regi ster documents thereunder shall admit to regi stration any document which purports to contravene the provi sions of this section.
(11) Nothing in thi s section shall --
(a) invalidate any transfer which was validly made; or
(b) validate any transfer which was invalidly made; before the coming into force of this Code.
Explanat ion -- For purposes of thi s section one acre of irr igated land shall be deemed to be equal to two acres of unir rigated land and vice- versa.
15. Thus from perusal of the above stated provisions, It is incumbent on the part of the plaintiff to seek permission from the Collector before executing agreement (Ex.P-1). Since Ex.P-1 has been executed without leave of Collector which has been taken into consideration by both the Court below and both the Courts below have appreciated the provisions of section 165(6) of the Land Revenue Code and also considered the fact that the agreement was executed in the year 1999 and the suit has been filed in the year 2009 i.e. barred by Limitation under Article 58 of the Limitation Act which is extracted below:-
To obtain any other declaration. Three years. When the right to sue first accrues.13
16. The first appellate Court while dismissing the appeal filed by the plaintiff has not filed any suit for specific performance of the contract therefore, decree for declaration cannot be granted. This finding is also inconformity with the provisions of section 34 of the Specific Relief Act which is extracted below.
17. 34. Discretion of Court as to declaration of status or right:
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such 2 character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation: A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
18. Upon perusal of entire evidence, no substantial question of law requires to be formulated for hearing of this second appeal. There is a concurrent finding of fact with regard to execution of the agreement to sale without leave of the Collector ignoring the provisions of Section 165 of the Land Revenue Code. It is a finding of fact which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon'ble Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others1, has held at paragraph 28 as under:-
28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors 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:
1 (2020) 4 SCC 659 14 "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 Para43)."
19. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.
20. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission.
Consequently, all the appeals are dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.
21. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge santosh