Prem Lal And Others vs Parvinder Singh And Others on 3 August, 2018

[Cites 26, Cited by 1]

Himachal Pradesh High Court

Prem Lal And Others vs Parvinder Singh And Others on 3 August, 2018

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 224 of 2017 .

Date of decision: 30.07.2018.

    Prem Lal and others                                                      .....Appellants.





                                        Versus

    Parvinder Singh and others                                             ....Respondents.


    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?1 No. For the Appellants : Mr. Vijay Bir Singh, Advocate.

For the Respondents : Mr. Sunil Kumar, Advocate, for respondent No. 1.

Mr. Harish K. Verma, Advocate, for respondents No. 2 to 4.

Tarlok Singh Chauhan, Judge (Oral).

Appellants are the plaintiffs, who after having lost before both the learned Courts below, have filed the instant regular second appeal. The parties hereinafter shall be referred to as the plaintiffs and defendants.

Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 2

2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration against the defendants alleging therein that .

they were in possession of the suit land comprised in Khata No. 72, Khatauni No. 201, Khasra No. 2511, measuring 09-89-50 H.M to the extent of its share 202840/244270 measuring 0-82-17 HM situated in village Raja Khasa, Tehsil Indora, District Kangra.

3. It was averred that the plaintiffs have purchased the aforesaid land from one Jaswant Singh on 21.08.1984 and mutation No. 64 to this effect was sanctioned in their favour in the year, 1983-

84. While incorporating the said mutation, total share of the land had been multiplied by 80 whereas share so purchased ought to have been multiplied by 40, which should have come to 202840. The share of the plaintiffs was multiplied by 2 instead of 4. On the basis of said revenue entries, mutation No. 85 was wrongly attested in favour of defendant No. 1, who is the legal heir of the aforesaid Jaswant Singh.

The defendant No. 1 sold his share to defendants No. 2 to 4 and mutation No. 367 to this effect was sanctioned in their favour.

4. The plaintiffs also challenged this mutation. Thus, on the basis of the sale deed, defendants No. 2 to 4 became co-sharers and had filed a suit for partition against the plaintiffs and other co-sharers and during partition proceedings, the plaintiffs came to know about the ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 3 fact that their share had been reduced to half whereas they were in possession of the whole share. Hence, the suit.

5. The defendants contested the suit by filing written statement. Defendant No. 1 in his written statement raised preliminary objections qua maintainability, locus standi, valuation, limitation etc. On merits, the case set up by the plaintiffs was denied and it was contended that the shares had rightly been recorded in the revenue record. The defendant inherited the property of Jaswant Singh being his grandson and thereafter sold his share to defendants No. 2 to 4 in the year 1989-90 and mutation No. 367 had been rightly sanctioned in favour of defendants No. 2 to 4, who were in possession of the suit land.

6. Defendants No. 2 and 4 in their written statement raised preliminary objections qua maintainability, limitation, cause of action etc. On merits, it was averred that the defendants were bonafide purchaser of the suit land and on the basis of the owners in possession of the suit land had initiated partition proceedings in the year 2000, which was decided in the year 2003. The remaining averments in the plaint were denied.

7. Defendant No. 3 did not choose to contest the claim of the plaintiffs and was accordingly proceeded against exparte.

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8. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:-

.

"1. Whether the plaintiffs are entitled for declaration to the effect that they are owners in possession to the extent of 202840/405680 as alleged?OPP

2. Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP

3. Whether the suit is not maintainable in the present form as alleged?OPD

4. Whether the plaintiffs have no cause of action to file the present suit as alleged?OPD

5. Whether the suit is not properly valued for the purpose of court fees and jurisdiction as alleged?OPD

6. Whether the plaintiffs are estopped from filing the present suit as alleged?OPD

7. Whether the suit is time barred as alleged?OPD

8. Whether the plaintiffs have suppressed the material facts from this court as alleged?OPD

9. Whether the suit is bad for non-joinder of necessary parties as alleged?OPD

10. Whether the defendants No. 2 and 4 are bonafide purchaser as alleged?OPD

11. Relief."

9. After recording evidence and evaluating the same, the learned trial court dismissed the suit of the plaintiffs. Plaintiffs though filed an appeal before the learned first appellate Court, however, the ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 5 same was also dismissed on 18.03.2016, constraining the plaintiffs to file the instant appeal.

10. It is vehemently argued by Shri V. B. Singh, Advocate, for the appellant that the findings recorded by the learned Courts below are totally perverse as the same are based upon complete misreading and misconception of oral and documentary evidence on record, therefore, deserves to be set aside.

11. On the other hand, Shri Sunil Kumar and Mr. Harish K. Verma, learned counsel for the respondents, would support the judgments and decrees passed by both the courts below and claimed that the same being strictly in conformity with law, need to be upheld.

I have heard learned counsel for the parties and have gone through the records of the case.

12. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-

"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 6 only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted .

from the right; turned away or deviating from what is right, proper, correct etc.

27. The expression "perverse" has been defined by various dictionaries in the following manner:

1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

2. Longman Dictionary of Contemporary English -

International Edition PERVERSE: Deliberately departing from what is normal and reasonable.

3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 7 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that .

appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."

29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:

(SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but r if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 8 whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re- appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority .

under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."

13. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-

"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.

26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.

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27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that .

suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.

28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."

14. What is 'perversity' came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-

"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.

9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 10 are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."

10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at .

para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."

11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-

defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.

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12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any .

admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re- appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.

13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-

79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 12 appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on .

that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à- vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication

-- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had r to Section 103 of the Code which reads as below:

'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 13 Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) .

"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala r Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"

This Court has also dealt with other aspects of perversity.

15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."

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15. Judged in light of the aforesaid exposition of law, it would be noticed that the plaintiff No.1 in support of his evidence had .

appeared as PW1 and also examined PW2 Rachpal Singh and PW3 Surinder Singh, whereas the defendants had examined themselves as DW1 and DW2.

16. Evidently, the Misal Haquiat for the year 1988-89 Ext.P1 shows that Jaswant Singh was co-owner in possession of the suit land to the extent of 20284. In the remarks column, it has been mentioned that Jaswant Singh had sold 5071/61068 share to plaintiffs and the sale was given effect in the revenue record vide mutation No. 64. It can further be gathered from the remarks column that defendant No. 1 succeeded Jaswant Singh vide mutation No. 85. Ext.P2 is the Jamabandi of the suit land for the year 1989-90, wherein in the remarks column, it has been mentioned that defendant No. 1 had sold his share to defendants No. 2 to 4 and mutation No. 367 to this effect has been entered.

17. Adverting to the testimony of plaintiff Prem Lal, who stepped into witness box as PW1 and tendered his affidavit Ext.PW1/A, reiterating therein the facts as detailed in the plaint and in cross-examination deposed that he had been cultivating the suit land since 1983, whereas the settlement had taken place in the year 1984.

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However, though he admitted that defendants No. 2 to 4 have purchased the suit land on 11.11.1992, however, he could not tell that .

whether they were in possession since then. On the similar lines, the plaintiffs have examined PW2 Rachpal Singh.

18. Now, adverting to the evidence led by the defendants, Parminder Singh stepped into witness box as DW1 and tendered his affidavit Ext.DW1/A and supported the averments made by him in the written statement. During cross-examination, he could not tell that his grandfather was owner of 22 kanals of suit land and was further unable to tell as to whether his grand father has sold his entire share to the plaintiffs. He denied that the plaintiffs were in possession of the suit land since 1984. He denied that he got the area of the land of the plaintiffs reduced in the revenue record in connivance with the revenue staff. To similar effect is the statement of Raghubir Singh, who appeared in witness as DW2 and tendered his affidavit DW2/A.

19. What can thus be gathered from the evidence led by the respective parties is that defendant No. 1 had executed sale deed in favour of defendants No. 2 to 4 in the year 1989-90 and mutation No. 367 to this effect stands sanctioned in their favour.

20. Defendants No. 2 to 4 have been found to be in possession of the suit land by both the courts below and, in fact, this ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 16 possession has not been disputed by the plaintiffs before the first Appellate Court as find mention in para -6 of the judgment.

21. That apart, admittedly the partition proceedings were initiated by defendants No. 2 to 4 in the year 2000 and had become final and as such the parties thereafter are in separate possession as per the partition.

22. Once that be so, I really wonder how the suit could have been instituted as late as on 01.09.2004, that too, with the aforesaid prayers. The plaintiffs had clearly acquiescenced to all that and condoned all acts that had taken place between the year 1992 up to the date of filing of the suit.

23. That apart, it would be noticed that defendants have been found in possession of the suit land on the basis of the sale deed executed in their favour by defendant No. 1. However, surprisingly, the plaintiffs have neither challenged the aforesaid sale deed nor sought possession of the suit land. Therefore, the suit as filed by the plaintiffs for declaration simplicitor was not at all maintainable and in case any precedent on the subject is required then reference can conveniently be made to the decision of the Hon'ble Supreme court in Ram Saran and another vs. Smt. Ganga Devi, AIR 1972 2685, wherein it was held that where the defendant is in possession of some of the suit ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 17 properties and the plaintiff in his suit does not seek possession of these properties but merely claims a declaration that he is the owner of .

the suit properties, the suit is not maintainable. It shall be fruitful to reproduce the relevant observations as contained in para-4, which reads thus:-

"We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-

finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence, the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation."

24. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law.

Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judge Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:

"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 18 first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal .

because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."

25. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:

"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word 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 & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (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 ::: Downloaded on - 03/08/2018 23:02:01 :::HCHP 19 was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the .

Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-

"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 view, 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 r fact 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:-

"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 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."

26. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:

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"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 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."

27. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal.

28. No question of law much less substantial question of law arises for consideration in this appeal.

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29. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending .

application, if any, also stands disposed of.






                                             ( Tarlok Singh Chauhan )





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    30 July, 2018.                                      Judge
    (sanjeev)




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