Rajasthan High Court - Jaipur
Saini Samaj Kaman vs Nagar Palika Kaman on 22 February, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. Civil Second Appeal No. 354/2009 Saini Samaj, Kaman Vs. Nagar Palika, Kaman. Date of Judgment: 22.02.2011 Hon'ble Mr. Narendra Kumar Jain,J. Mr. N.K. Joshi, for the appellant. BY THE COURT:
Heard learned counsel for the appellant.
2. Plaintiff-appellant filed a suit for permanent injunction in respect of disputed piece of land pleading therein that the same was in possession of the plaintiff since long time. The suit was contested by the defendant by filing written statement, wherein it was pleaded that disputed piece of land is a part of public way and the plaintiff has encroached upon the land belonging to public way, therefore, the plaintiff cannot be allowed to raise any construction over the land in dispute and the suit is liable to be dismissed.
3. Trial court framed five issues, which are reproduced in the judgment of the trial court. Learned trial court after considering and appreciating the evidence of both the partied decided the relevant issue against the plaintiff and consequently, dismissed the suit. While deciding Issue No. 1, trial court categorically recorded a finding that the plaintiff neither proved its ownership nor possession over the property in dispute before filing the suit. When the plaintiff took possession of the disputed piece of land and started construction over it, then the defendant served a notice upon the plaintiff, resulting in filing of the present suit by the plaintiff.
4. The plaintiff, thereafter, preferred first appeal before first appellate court, but the same was also dismissed vide impugned judgment dated 10.02.2009, which is under challenge in this second appeal preferred on behalf of the plaintiff.
5. The questions involved in the present case are relating to questions of facts and there is concurrent finding of fact recorded by both the courts below, which cannot be interferred with by this Court in this second appeal under Section 100 C.P.C.
6. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:
......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.
7. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:
......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....
8. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:
81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.
9. No substantial question of law is involved in this second and the same is, accordingly, dismissed in limine.
(Narendra Kumar Jain),J.
Manoj, Item No.14