Rajasthan High Court - Jaipur
Guganram Son Of Late Ganeshram vs Deceased Gangaram S/O Kanaram ... on 12 November, 2024
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2024:RJ-JP:46769]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 357/2023
1. Guganram Son Of Late Ganeshram, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
2. Hoshiyarsingh, Son Of Late Ganeshram, R/o Bari Ka Bas,
Tan Bari, Tehsil Chirawa, District Jhunjhunu.
3. Harlal Son Of Late Ganeshram, R/o Bari Ka Bas, Tan Bari,
Tehsil Chirawa, District Jhunjhunu.
4. Sukhdev Son Of Late Shyochand, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
5. Sahiram Son Of Late Shyochand, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
6. Swaroopchand, Son Of Late Shyochand, R/o Bari Ka Bas,
Tan Bari, Tehsil Chirawa, District Jhunjhunu.
7. Ginni Devi D/o Late Shri Shyochand, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
8. Deceased Chuki Devi D/o Late Shri Shyochand, R/o Bari
Ka Bas, Tan Bari, Tehsil Chirawa, District Jhunjhunu.
8/1. Ram Singh Son Of Late Shri Gurucayal, R/o Haripura, Post
Budaniya, Tehsil Chirawa, District Jhunjhunu.
8/2. Suresh Son Of Late Shri Gurudayal, R/o Haripura, Post
Budaniya, Tehsil Chirawa, District Jhunjhunu.
9. Deceased Parmeshwari Devi, D/o Shyochand, R/o
Haripura, Post Budaniya, Tehsil Chirawa, District
Jhunjhunu. (Died On 15-02-2022).
9/1. Vikram Son Of Moolchand, R/o Goya Ka
Bas(Rafuveerpura), Tehsil Surajgarh, District Jhunjhunu
(Raj.).
9/2. Karamveer Son Of Moolchand, R/o Goya Ka
Bas(Rafuveerpura), Tehsil Surajgarh, District Jhunjhunu
(Raj.).
9/3. Veer Singh Son Of Moochand, R/o Goya Ka
Bas(Rafuveerpura), Tehsil Surajgarh, District Jhunjhunu
(Raj.).
----Appellants
Versus
1. Deceased Gangaram S/o Kanaram, R/o Bari Ka Bas, Tan
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Bari, Tehsil Chirawa, District Jhunjhunu.
1/1. Vedkaur Wife Of Late Shri Gangaram, R/o Bari Ka Bas,
Tan Bari, Tehsil Chirawa, District Jhunjhunu.
1/2. Sumer Son Of Late Shri Gangaram, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
1/3. Vinod Son Of Lateh Shri Gangaram, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
1/4. Mukesh Son Of Late Shri Gangaram, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
1/5. Sarita Daughter Of Late Shri Gangaram, R/o Bari Ka Bas,
Tan Bari, Tehsil Chirawa, District Jhunjhunu.
2. Ramjilal S/o Hanumanaram, R/o Bari Ka Bas, Tan Bari,
Tehsil Chirawa, District Jhunjhunu.
3. Deceased Mankori W/o Shyochand, R/o Bari Ka Bas, Tan
Bari, Tehsil Chirawa, District Jhunjhunu.
----Respondents
For Appellant(s) : Mr. Abhishek Bhardwaj
Mr. Shantanu Sharma
For Respondent(s) : Ms. Pragya Pandey
Mr. Nirmal Solanki
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Judgment / Order
12/11/2024
1. Instant second appeal is preferred by appellants-defendants aggrieved from dismissal of Civil Regular Appeal No.2/2017 by learned Additional District Judge, Chirawa on 09.05.2018 affirming the judgment and decree dated 01.12.2016 in Civil Suit No.217/1993 passed by learned Civil Judge, Chirawa, District Jhunjhunu.
2. Office has pointed out a delay of 84 days in filing the present civil second appeal and to substantiate the reasons of delay, no (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (3 of 12) [CSA-357/2023] application under Section 5 of Limitation Act is filed. Later amended cause-title was filed and office has reported no delay in filing appeal.
3. An application under Order 41 Rule 27 CPC is also filed by the appellants for taking on record, letter of Village Panchayat Ardawat and letter dated 09.06.2017 of Sub Divisional Officer, Chirawa, District Jhunjhunu.
4. Learned counsel for appellants while referring the order dated 01.09.2023 in review application passed by learned Additional District Judge, Chirawa submits that a civil suit for declaration of customary right on a revenue land was filed by respondents-plaintiffs on the ground that land was used by the villagers for public purposes. He submits that during pendency of appeal, the land use was changed and same was allotted by Sub Divisional Officer, Chirawa to Village Panchayat for expansion of Abadi and Village Panchayat has allotted the land to the appellants. He submits that in view of change of use of land to abadi, the decree in suit for declaration rendered infructuous. He submits that the change circumstances were brought on record, by filing application under Order 41 Rule 27 CPC and a request is made to take the documents on record in form of additional evidence. He further submits that the plaintiffs have filed a civil suit with regard to revenue land and same is barred by law under Sections 207 and 252 of Rajasthan Tenancy Act, but the Trial Court and the Appellate Court have failed to consider the objection about maintainability of civil suit. He also submits that the land in question was never used by villagers for observance of any (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (4 of 12) [CSA-357/2023] customary rituals or festivals. He also referred the grounds raised by plaintiffs and submitted that the defendants were already in possession of land in question and plaintiffs have failed to establish uninterrupted use of customary right. Atlast, he submitted that several substantial question of law in his para no.9 of memo of appeal are suggested and this second appeal may be admitted for final hearing.
5. Aforesaid contentions were opposed by learned counsel for respondents-plaintiffs and submitted that concealing facts of decree and pendency of appeal before the ADJ Court, the land was converted from revenue land to abadi, in state run campaign. He also submitted that with connivance of administration, the land use was changed and same was allotted to Village Panchayant. Later, without any authority the land was allotted by Sarpanch without following legal procedure. He submits that the entire exercise of conversion is contrary to procedure established under the law and same was for the purpose to defeat the judgment and decree of the trial Court. He also referred the judgment of the Trial Court and the Appellate Court and submitted that a suit for declaration of easementary right is maintainable before the Civil Court and it is not barred under Sections 207 and 252 of Rajasthan Tenancy Act. He also referred the concurrent findings of facts by the Courts below and submitted that there is no substantial question, which requires adjudication by this Hon'ble Court, therefore, the appeal is liable to be dismissed.
6. Heard learned counsels for the parties and perused the material placed on record. Also considered the judgments in case (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (5 of 12) [CSA-357/2023] of Kedar Nath Agrawal (Dead) and Anr. Vs. Dhanraji Devi (Dead) By LRs. and Anr. reported in (2004) 8 SCC 76 and Lal Singh Jhala Vs. Panna Lal, S.B. Civil Misc. Appeal No.1644/2012 date of judgment (22.08.2016) passed by a Coordinate Bench at Jodhpur, submitted by learned counsel for appellants.
7. A perusal of instant second appeal clearly reflect that this second appeal is filed to challenge the order dated 09.05.2018 in Civil Regular Appeal No.2/2017. This appeal was filed on 30.10.2023. The office has initially pointed out the delay of 84 days but later on another report dated 04.01.2024 indicate that the appeal is filed within time. A perusal of material placed on record, also shows that initially this appeal was filed indicating impugned order as order dated 09.05.2018 but later the order dated 01.09.2023 was shown as impugned order and on the basis of order dated 01.09.2023, the limitation was calculated.
8. A perusal also reflect that the order dated 01.09.2023 was passed on an application under Order 47 Rule 1 and 2 read with Section 114 of CPC, but a S.B. Civil Second Appeal under Section 100 of CPC, cannot be filed against order passed in review petition. A civil second appeal can be maintained only against judgment and decree dated 09.05.2018 in Civil First Appeal No.2/2017. Thus, the working of office requires great introspection and it is duty of the Registrar General to effectively monitor the functioning of the registry officials. Herein either the staff is unaware about the legal position or they are free to manipulate in the manner they like.
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9. An application under Order 41 Rule 27 CPC was filed for taking on record the order of allotment dated 09.06.2017 issued by Sub Divisional Officer, Chirawa, District Jhunjhunu and latter dated 22.07.2024 signed by Sarpanch of Village Panchayat, Ardawata.
10. A civil suit for declaration, injunction and dispossession was filed in year 1993 and same was decreed on 01.12.2016. An appeal was preferred by present appellants in year 2017 and same was dismissed on 09.05.2018. The letter dated 09.06.2017 clearly shows that the land was allotted to Village Panchayat, Ardawata under Section 102 of Rajasthan Land Revenue Act. The letter dated 22.07.2024 issued by Sarpanch, Village Panchayat also shows that the 30 persons were occupying land relating to Khasra No.134 Rakba 2.66 Hectares.
11. Herein, the Trial Court has declared rights in favour of plaintiffs on 01.12.2016 and both letters were issued only after the decree dated 01.12.2016. The order of SDO and resolution of panchayat were passed only after judgment and decree by the trial Court. Now during pendency of this appeal a certificate dated 22.07.2024 was also issued by Sarpanch, Village Panchayat. It means that the appellants are trying to defeat the judgment and decree passed by the Trial Court. Neither the Collector nor village Panchayat has challenged the judgment and decree dated 01.12.2016.
12. Appellate Court (learned Additional District Judge, Chirawa) has also considered the conversation of land during pendency of the appeal, from barani to Abadi. A perusal of the order dated (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (7 of 12) [CSA-357/2023] 01.09.2023 clearly reflect that these documents were created only to frustrate the purpose for which civil suit was filed. The District Administration or Village Panchayat is not authorised to change the land use, when a suit was decreed and appeal was pending. The application under Order 41 Rule 27 CPC is filed with object to frustrate and defeat the judgment and decree dated 01.12.2016. Thus, the application under Order 41 Rule 27 CPC is liable to be dismissed.
13. A perusal of judgment referred by learned counsel for the appellants in case of Lal Singh Jhala Vs. Panna Lal (supra) indicate that a Coordinate Bench has considered the filing of civil suit in matter relating to agricultural land, wherein after filing of a civil suit a direction was issued to return the civil suit to be filed before the Court of competent jurisdiction. The facts narrated herein are different as the suit is filed for declaration of easementary right and on the basis of easementary right a civil suit is maintainable. Thus, this judgment in case of Lal Singh Jhala Vs. Panna Lal (supra) is not applicable.
14. In case of Kedar Nath Agrawal (Dead) and Anr. Vs. Dhanraji Devi (Dead) By LRs. and Anr. (supra) Hon'ble Supreme Court has considered issue of subsequent events but herein there is no subsequent event rather to frustrate the judgment and decree passed by the Trial Court, few documents were created. Moreover, in order dated 01.09.2023, the Appellate Court has also notice that the conversation order was passed during pendency of appeal. Again a ground was raised by the respondents about concealment of fact, by appellants. Considering (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (8 of 12) [CSA-357/2023] the judgment in case of S.P Chengalvaraya Naidu vs Jagannath reported in (1994) 1 SCC 1 Hon'ble Supreme Court has held that any order, if obtained by concealment of fact or fraud then same is nullity in eye of law. Thus, the order dated 09.06.2017 by the SDO Chirawa (Jhunjhunu) is nullity in eye of law and have no legal significance.
15. In view of aforesaid, the judgment in case of Kedar Nath Agrawal (Dead) and Anr. Vs. Dhanraji Devi (Dead) By LRs. and Anr. (supra) is not applicable in the instant case.
16. A perusal of judgment of Court below clearly reflect that an objection was raised about maintainability of suit before the Civil Court and issue no.2 was framed.
17. The Trial Court has considered several judgments including judgment in case of Madho Singh And Ors vs Moni Singh (D) By Lrs. and Ors. reported in AIR 2004 SC 4316 wherein Hon'ble Supreme Court has considered Section 9 of CPC and Section 257 MP Land Revenue Code, 1959, pari materia provision relating to Rajasthan Tenancy Act. Thus, the trial Court has jurisdiction to entertain civil suit and pass a decree.
18. Having considered the grounds raised by learned counsel for appellant and also the issues considered by learned Trial Court and Appellate Court, it can be said that both the Courts below have passed a reasoned order after scanning the entire material on record. In view of aforesaid, no substantial question of law arises for consideration by this Court.
19. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (9 of 12) [CSA-357/2023] substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.
20. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon'ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under:
"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."
21. In case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023), Hon'ble Supreme Court has considered the scope of Section 100 of CPC and summarised the law as under:
13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (10 of 12) [CSA-357/2023] judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a "substantial question of law". In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.
13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:-
a) Not previously settled by law of land or a binding precedent.
b) Material bearing on the decision of case; and (c) 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. Therefore, it will depend on facts of each case.
Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273 (Downloaded on 23/11/2024 at 12:22:20 AM) [2024:RJ-JP:46769] (11 of 12) [CSA-357/2023]
22. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon'ble Supreme Court explained the purpose of framing question of law in following manner:
"a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.
b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.
c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well."
23. Hon'ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:-
"(i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof."
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24. Having considered the submissions of learned counsel for the parties and on perusal of material on record, the evidence produced by the respondents/defendants were well-considered and on the basis of evidence, the trial court has drawn the conclusion. The trial court has not committed any illegality while reading the evidence on record. Similarly, the appellate court after considering the material on record has rightly affirmed the judgment and decree passed by the trial court and there is no perversity in the order passed by the appellate court.
25. In view of aforesaid, the application under Order 41 Rule 27 CPC is hereby dismissed.
26. The Civil Second Appeal preferred by appellants is also dismissed with pending applications, if any.
27. No order as to costs.
(ASHOK KUMAR JAIN),J Arun/59 (Downloaded on 23/11/2024 at 12:22:20 AM) Powered by TCPDF (www.tcpdf.org)