Gujarat High Court
Navinchandra Hansrajbhai Lakhiar vs Jamnagar Municipal Corporation on 24 June, 2024
NEUTRAL CITATION
C/SA/243/2024 JUDGMENT DATED: 24/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 243 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 243 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAVINCHANDRA HANSRAJBHAI LAKHIAR
Versus
JAMNAGAR MUNICIPAL CORPORATION & ORS.
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Appearance:
MR MEET D PANSURIA(10170) for the Appellant(s) No. 1
for the Respondent(s) No. 1,3,4
MS SHRUTI DHRUVE, ASST. GOVERNMENT PLEADER for Respondent No.2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/06/2024
ORAL JUDGMENT
1. The concurrent finding arrived at by the learned Civil Court in Regular Civil Suit No.135 of 2005 as well by Appellate Court in Regular Civil Appeal No.68 of 2014 whereunder the Courts below have dismissed the suit of the plaintiff. The judgment and decree is also confirmed in the first appeal are called in question Page 1 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined in the second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC').
2. Unsuccessful plaintiff is the appellant and successful defendants are the respondents. For the sake of convenience, the parties are referred to as they are stated before the learned Trial Court.
3. Learned AGP Ms.Shruti Dhruve appears on advance copy for respondent Nos.2 and 3.
4. The brief facts leading to filing of this second appeal are as under.
4.1 It is the case of the appellant that he has purchased land bearing Revenue Survey No.43/2 admeasuring Acre 4-34 Gunthas of village Dadiya, Jamnagar vide registered sale deed dated 27.01.1973 and since then he is doing agricultural activities on the said land. Sub-survey numbers were allotted to the land of Survey No.43 whereupon it is held that land of Survey No.43/2 the claim of which has been made by the plaintiff was declared as Kharaba land and vested to the Jamnagar Municipal Corporation as per Notification of Saurashtra State dated 05.01.1951. The plaintiff filed Regular Civil Suit No.135 of 2005 before the Trial Court and the learned Trial Court dismissed the suit vide judgment dated 20.10.2014. Being aggrieved by the said judgment, the plaintiff preferred Regular Civil Appeal No.68 of 2014 before the learned Appellate Court and the learned Appellate Court confirmed the judgment of the learned Trial Court and dismissed the appeal of the plaintiff vide judgment dated 17.05.2024. Hence, the second appeal.
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5. Heard learned advocate Mr.Meet Pansuria appearing for the appellant-plaintiff and learned AGP Ms.Shruti Dhruve appearing for the respondent State.
6. Learned advocate Mr.Meet Pansuria after referring to the question of law framed by him in para 3 of the appeal memo for admission of the second appeal submits that the learned Courts below have committed serious error in disbelieving the registered sale deed qua disputed land in favour of the plaintiff as well as the mutation entry and their evidentiary value. He would further submit that learned Trial Court erroneously reached to the conclusion that the disputed land is "Kharaba land" and in view of 1951 Notification of the Government, said "Kharaba land" is vested with the Jamnagar Mahanagarpalika. He would further submit that the same error has been transcended in the first appeal as the First Appellate Court has also believed the same. He would further submit that there is serious doubt on the 1956 document produced by the Government indicating as "kamijyasti patrak". This document is not proved in accordance with law. He would further submit that a list of land stated in the notification of the Government 1951 does not include the disputed land which belongs to the plaintiff. Therefore, serious error has been crept in the impugned judgment and decree. Such serious error leads to substantial proprietary right relating to the properties of the plaintiff and therefore, there are substantial questions of law involved, which needs to be addressed in the second appeal.
6.1 Learned advocate Mr.Meet Pansuria also referred to various revenue entries on the record of the evidence to indicate that even to the knowledge of the State Government, the plaintiff Page 3 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined is holding the possession of the disputed land since long and therefore in view of principle of adverse possession, the plaintiff has become the owner.
6.2 Learned advocate Mr.Pansuria would further submit that an erroneous finding has been recorded by the learned Courts below that on the disputed land municipal garden exists. This finding is not conclusive as no fact supporting such finding is on record. Lastly, learned advocate Mr.Pansuria submits that learned Trial Court has not given any reason to negate the evidentiary effect of revenue record which favours the plaintiff. The revenue record gives presumption of correctness of the right of record and it shows existence or absence of claim, right, title or interest. He would further submit that in the present case the State of Gujarat or Jamnagar Mahnagarpalika has not rebutted the presumption available in favour of the plaintiff and yet learned Trial Court has committed serious error in not believing the revenue record.
6.3 Learned advocate Mr.Pansuria referred to the judgment of Hon'ble Supreme Court in the case of Pratap Singh (Dead) Through Legal Representatives and others vs. Shiv Ram (Dead) Through Legal Representatives - (2020) 11 SCC 242. Para 25 and 26 which are relied by the learned advocate for the petitioner reads as under :
"25. The presumption of truth attached to the revenue record can be rebutted if such entry was made fraudulently or surreptitiously (Vishwa Vijai Bharti's case) or where such entry has not been made by following the prescribed procedure (Bhimappa Channappa Kapali (Dead) by LRS. v. Bhimappa Satyappa Kamagouda (Dead) by LRS. and Others 8).Page 4 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024
NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined Even in Guru Amarjit Singh, where thirty years old lease deed was produced, this Court had not accepted the proof of the relationship between landowner and tenant in absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth attached to the record-of-rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-a-vis documentary evidence is at a much weaker level."
6.4 Learned advocate for the petitioner also relied upon another judgment of Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. Huderabad Potteries Private Limited - (2010) 5 SCC 382.
6.5 Upon above submissions, learned advocate for the petitioner submits to admit this second appeal on the questions of law framed in the appeal memo.
7. Learned AGP Ms.Shruti Dhruve however vociferously objected to admit this appeal inter alia on the argument that concurrent finding has been arrived at by the learned Courts below to disbelieve the case of the plaintiff. No question of law being substantial has arisen in the present case and therefore, the second appeal should not be admitted only on the submission that some wrong application of the law has been made to the facts by the learned Courts below. She would further submit that the plaintiff has suppressed the material fact that pleading in the plaint lacks the filing and withdrawal of the earlier suit which is recorded by the learned Trial Court. The Page 5 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined second suit was obviously barred by Order 23 Rule 1(4) of the CPC and rightly has been dismissed. Therefore, in that circumstance, there is no reason to entertain the second appeal.
7.1 Learned AGP would submit that the disputed land is "Kharaba land". Sub-survey numbers were allotted to the land of Survey No.43 whereupon it is held that land of Survey No.43/2; the claim of which has been made by the plaintiff was declared as "Kharaba land" and vested to the Jamnagar Municipal Corporation, whereupon presently public garden exists and therefore, in view of that it is submitted that the appeal is nothing but one more attempt to grab the Government land. She would further submit that the cause of action has rightly been rejected by the learned Trial Court. There is no reason much less palpable reason which may allow this Court to admit this second appeal. Therefore, she submits to dismiss this second appeal at admission stage.
8. Having heard learned advocates for both the sides, at the outset, I may refer the questions of law framed by the appellant in the appeal memo which reads as under :
"(A) Whether the courts below have erred in not believing the ownership of the plaintiff despite there being a registered sale deed in favour of the plaintiff as well as the name of the plaintiff having been mutated in the revenue records?
(B) Whether the courts below erred in not appreciating that the defendant was having the knowledge of the registered sale deed as well as the mutation of the name of the plaintiff in revenue records since thirty years, and despite having such knowledge, the defendant has not taken any steps against the plaintiff or his predecessor-
in-title?
Page 6 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined (C) Whether the courts below have erred in concluding that the title of the predecessor-in-title of the plaintiff cannot be said to have been proved from the thirty year old and undisputed village form No.7/12, more particularly, when the village form No.6 of the concerned village is admittedly not maintained properly?
(D) Whether the courts below have erred in appreciating that the presumption of correctness of revenue records i.e. village form 7/12 and 8A, as well as the registered sale deed cannot be questioned unless the same is expressly declared incorrect by competent authority?
(E) Whether the courts below have erred in disbelieving the possession of the plaintiff from the revenue records being village form No.7/12 and 8-A, and the registered sale deed, when the same is not challenged before competent authority?
(F) Whether the courts below have erred in appreciating the documentary evidence being the revenue records of village form No.7/12 and 8A, in view of section 90 of the Indian Evidence Act, 1872?
(G) Whether a plea of adverse possession, would be available to the plaintiff alternatively, if the plea of ownership, on the basis of undisputed revenue records and registered sale deed, is rejected?"
9. At the outset, let me refer Section 100 of CPC, which reads as under :
"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.Page 7 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024
NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]"
10. In Narayananan Rajendran vs. Lekshmy Sarojini - (2009) 5 SCC 264, the Hon'ble Supreme Court has examined the scope of second appeal prior to and post amendment in the CPC. After referring catena of judgments, in para 38 to 42, the Hon'ble Supreme Court has held as under :
""38. "66.The primary cause of the accumulation of arrears of second appeal in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Section 100 C.P.C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C.
67. The question which is often asked is why should a litigant have the right of two appeals even on questions of law? The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts."Page 8 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024
NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined Rationale behind permitting second appeal on question of law:
39. "68. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.
69. The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the courts should not interfere with the concurrent findings of facts.
70. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down.
The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law"
which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;Page 9 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024
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(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.
71. The fact that, in a series of cases, this court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
72. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.
74. The High Court seriously erred in interfering with the findings of facts arrived at by the trial court and affirmed by the first appellate court.
40. The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating Page 10 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined substantial question of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The legislative intention has been clearly spelt out in a series of cases of this court.
41. In Gurdev Kaur (supra), this court exhaustively dealt with the cases before and after 1976 Amendment of CPC. This court clearly observed that the scope and ambit of section 100 CPC has been drastically changed after the amendment.
42. It is a matter of common experience in this court that despite clear enunciation of law in a catena of cases of this court, a large number of cases are brought to our notice where the High Court under section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law."
11. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar - (1993) 3 SCC 722, the Hon'ble Apex Court has observed as follows :
"6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law..."
12. Thus, it is admitted position that in second appeal jurisdiction of the High Court is confined to decide substantial question of law. Finding of fact is not open to challenge in second appeal even if the appreciation of the evidence is palpably Page 11 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined erroneous and the finding of fact is incorrect as held by Hon'ble Supreme Court in the case of V. Ramachandra Ayyar vs. Ramalingam Chettiar - AIR 1963 SC 302.
13. I may refer to the recent judgment of Hon'ble Supreme Court in the case of Suresh Lataruji Ramteke vs. Sau. Sumanbai Pandurang Petkar - 2023 Live Law (SC) 821. In para 27, the Hon'ble Apex Court has observed as under :
""27. The questions of law raised in the instant appeal are answered as under :
27.1 A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided.
27.2 In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below."
14. In the background of the above settled provisions of law, if we examine the facts of the present case, as to ascertain that whether any of the questions of law framed by appellant is substantial questions of law? It is the case of the plaintiff that he has purchased the land of Revenue Survey No.43/2 Page 12 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined admeasuring Acre 4-34 Guntha of village Dadiya, Jamnagar on 27.01.1973 by paying sale consideration of Rs.2,600/-. The revenue entry is also mutated in his favour and therefore he is the owner and occupier of the disputed land, from which he could not be evicted without following due process of law. It is also the case of the plaintiff that notification of Saurashtra State dated 05.01.1951 would not vest the disputed land with Jamnagar Municipal Corporation. The plaintiff has also pleaded inconsistent case that in Samvat 2004, the disputed land was given by the Samaharta, Jamnagar to the grandfather of the plaintiff by taking sale consideration of Rs.2,500/-.
15. Learned Trial Court framed issues at Exhibit-37 from the rival pleadings as under :
"1. Whether the plaintiff proves that he is the owner of the disputed land?
2. Whether the defendant proves that the disputed land is Kharaba land and it has been vested in the defendant by Saurashtra State as per its notification?
3. Whether the plaintiff is entitled for the reliefs prayed for?
3-A Whether the suit is barred by statutory notice?
4. What order?
16. Issue No.1 was sequel to issue No.2. As issue No.1 was answered in negative, issue No.2 was answered in affirmative. The suit of the plaintiff was dismissed. Both the parties led documentary and oral evidence before the learned Trial Court.
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17. The chronology of the registered Sale Deed is stated in para 11 of the impugned judgment. According to plaintiff, the disputed land was originally owned by Bava Madhavpari and Bava Mulpari. On 07.01.1963 by registered Sale Deed with consent of Rava Vala, the disputed land was sold to Parmanand Pragji and Parmanand Pragji sold the disputed land by registered Sale Deed dated 29.01.1973 to the plaintiff and as such plaintiff has become the owner of the disputed land. The additional plea of the plaintiff was that since beginning their names are running in Village Form Nos.7/12 and 8A as Samaharta Jamnagar by taking lump sum consideration of Rs.2,500/- gave disputed land to grandfather of the plaintiff. At Exhibit-64 and 65, two sale deeds are produced on record but they have been given tentative exhibits. Plaintiff did not take any pain to prove these documents. Learned Trial Court recorded finding that even if it is believed that both the documents are proved documents, the plaintiff is silent that how Bava Madhavpari and Bava Mulpari as well as Rava Vala became owner of the disputed land. Merely stating in the document that he is the owner of the immovable property would not establish the person as owner of the property. They must have to trace back the title and establish the same. First sale deed in chronology does not aver that how Bava Madhavpari and Mulpari obtained title of the disputed land. Title of the disputed land must have its origin and genesis. In absence of proof of origin of the title of disputed property, it cannot be believed that Bava Madhavpari and Mulpari or Rava Vala were owners of the disputed property. The plaintiff claims his title through these two documents at Exhibit-64 and 65 but since the predecessor-in-title of the plaintiff failed to prove the title of disputed land in their favour, better title cannot be Page 14 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined transmitted in favour of the plaintiff. What can be transferred is defined in Section 6 of the Transfer of Property Act and the competency of the person to transfer is defined in Section 7 of the Transfer of Property Act. The person competent to transfer the property owned by him or authorized to dispose of the property can transfer the property in favour of the third party but the person who has no title over the immovable property cannot pass it to the third party by executing the sale deed. Learned Trial Court has extensively dealt with this issue.
18. Another contention of the plaintiff was that Samaharta, Jamnagar had given the land to grandfather of the plaintiff by taking the amount equal to 20 patts of the immovable property and by doing kami jyadsti in the land of Survey No.43 in Samvat 2004. However, kami jyadsti record clearly indicates that land of Survey No.43/5. 43/6 and 43/7 was given to the grandfather of the plaintiff and not the land of Survey No.43/2. At Exhibit-88 deposition of the PW-2 is produced. It is important evidence and it indicates that the land bearing Survey No.43/2 was "Kharaba land". This issue comes in the evidence of the plaintiff witness. It also establishes that the grandfather of the plaintiff was illegally possessing the land of Survey No.43/2. It was given as "Ek Sali"
(for one year) to the grandfather of the plaintiff but subsequently it was declared as "Kharaba land". The witness has also admitted that revenue office has no any such order which indicates that Vasantpari who is predecessor-in-title of the disputed land had been allotted this land by the Collector. He had further deposed that in the revenue record nowhere the names of Vasantpari or Rava Vala is mentioned. He also submits that revenue record in the form of Village Form No.6 or No.7/12 Page 15 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined and 8A in name of Vasantpari Devpari or Rava Vala etc. does not exist in the revenue office. In nutshell, it is clearly deposed by PW-2 that no authentic record is available with the revenue office, which indicates that predecessor-in-title of the disputed land were really holding the title of the property and their names were mutated in the revenue record. PW-3 at Exhibit-98 also supports the said aspect. In nutshell, from the evidence of the plaintiff itself it proves that the plaintiff was not the owner of the disputed land and no authentic record is available with the revenue office, so plaintiff's case fails to inhibit on its own evidence.
19. Learned Appellate Court has reassessed the evidence and confirmed the same. There is no reason to interfere with the impugned judgment and order. One more aspect which could be noticed that suit was moved by the power of attorney of the plaintiff. When evidence was opened, the power of attorney entered into the witness box and at that time the plaintiff was sitting in the Court room itself. Learned advocate Mr.Pansuria appearing for the appellant has failed to point out that when the plaintiff was available in the Court room, why the power of attorney has given the deposition. The judgment of Hon'ble Supreme Court in case of Janki Vasudeo Bhojwani and another vs. Indusind Bank Ltd. and others - (2005) 2 SCC 217 as well as the judgment of this Court in the case of Ajay Kiritkant Ghelani vs. Mathureshnagar Cooperative Housing Society Ltd -2007 (3) GLH 590, have been pressed into service by the learned Trial Court in regard to deposition of the power of attorney should not be believed.
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20. The approach of learned Trial Court as well as Appellate Court in relation to this issue is correct and unblemish. One another aspect could be noticed that the plaintiff had earlier filed Regular Civil Suit No.880 of 1994 against Jamnagar Municipal Corporation claiming that he is not in possession of the suit property but the possession be handed over to him as he is the owner of the property. The suit was withdrawn. Exhibit-121 and 122 on record of the learned Trial Court proves this aspect. The plaintiff had halfheartedly pleaded this aspect in the plaint but there is active concealment on the part of the plaintiff. In earlier suit he had admitted that he was not in possession of the disputed land but then in the present suit he pleads that he is in possession of the disputed property. How he entered into the possession of the disputed property in between, is totally silent. Even he has not produced the copy of the plaint of Regular Civil Suit No.880 of 1994 but pleaded that the suit was withdrawn by him under pressure as he was threatened by some party but then why for ten years he remained silent is not clear. In nutshell, the plaintiff tossed one more dice in the gamble. The suit itself was abuse of process of law and was a systematic but designed approach to grab the Government land. Learned Trial Court vividly and extensively dealt with the evidence on record to discard the claim of the plaintiff. Learned Appellate Court again examined the issue by rescanning the evidence but did not find any error. This second appeal is one more attempt on the part of the plaintiff.
21. Recently in case of Gurbachan Singh (Dead) Through Lrs. Vs. Gurcharan Singh (Dead) through Lrs. and others - 2023 (0) INSC 639, the Hon'ble Supreme Court has explained the Page 17 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined word 'substantial' appearing in Section 100 of CPC as under :
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57( 2 Judge Bench), it was observed:
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545] , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC 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 v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC 172] the Page 18 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 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. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] , AIR p. 1318, para 5) '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.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)"
22. None of the questions of law framed by the appellant are substantial in view of above judgment. Rather this second appeal is an abuse of process of law. It is a frivolous litigation and such kind of litigation chocks the system. This is a classic example which genuinely depict the picture that how the civil litigation Page 19 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024 NEUTRAL CITATION C/SA/243/2024 JUDGMENT DATED: 24/06/2024 undefined are moved from one Court to another Court by unscrupulous litigant to grab the Government land by abusing the judicial system. The cantankerous and unscrupulous litigant takes one or other remedy to grab the Government land and do hook and crook to obtain the possession. This is uncalled litigation and is calling for imposing the realistic cost. It is unwarranted claim. Considering the law laid down by Hon'ble Supreme Court in the case of Ramrameshwari Devi vs. Nirmala Devi - 2011 (8) SCC 249, the cost is required to be imposed upon the appellant- plaintiff while dismissing the appeal. The appeal stands dismissed at admission stage with cost quantified at Rs.10,000/- to be paid in the District Legal Service Authority, Jamnagar within seven days from today failing which the amount of cost shall be recovered as arrears of land revenue. In that event learned Trial Court shall issue warrant authorizing the Collector, Jamnagar to recover the amount of cost and to deposit in District Legal Service Authority, Jamnagar. Record and proceedings, if any, be sent back to the learned Trial Court. Associated Civil Application, if any, also stands disposed of.
23. After pronouncement of the judgment, learned advocate Mr.Pansuria submits to stay the operation of the judgment for four weeks. The request is not accepted.
(J. C. DOSHI, J) GAURAV J THAKER Page 20 of 20 Downloaded on : Fri Jun 28 22:15:29 IST 2024