Gujarat High Court
Vishniben Kevalram Khushlani vs Bhodubhai Abhesinh Baria on 13 October, 2022
C/SA/532/2022 ORDER DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 532 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 532 of 2022
==========================================================
VISHNIBEN KEVALRAM KHUSHLANI
Versus
BHODUBHAI ABHESINH BARIA
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2,3,4,5,6
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/10/2022
ORAL ORDER
1. Feeling aggrieved and dissatisfied by the impugned judgment and order dated 01.02.2010 passed by the learned Principal Civil Judge, Shehera in Regular Civil Suit No.18 of 2006 as well as judgment, order and th decree dated 10.02.2022 passed by the learned 6 Additional District Judge, Panchmahals in Regular Civil Appeal No.13 of 2010, the present Second Appeal is filed by the original-plaintiffs.
2. The case of the plaintiffs is that the subject parcel of land, which is allotted to one Kevalram Devaldas as an evacuee property and the same was allotted to said Page 1 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 Kevalram Devaldas on 07.05.1974 as new tenure land.
The subject parcel of land situated at village : Dhamnod of Panchmahal District bearing Revenue Survey No. 1, ad measuring 6 Accres and 9 Gunthas and subsequently, the subject parcel of land sold to the present respondent
- original defendant way back in the year 1977. The said transactions was under challenge in the present Civil Suit filed by the legal heirs of the Kevalram Devaldas by way of filing the Civil Suit No.18 of 2006 in the Court of Learned Principal Civil Judge at Shehera. Learned Civil Judge has considered the written statement of other-side and application under the provision of Order 7 Rule 11 of the Code.
3. The learned Trial Court has framed the following issues vide Exh. 13 (issue):
"Issues :-
(1) Whether the Plaintiff proves that, the land in dispute is ancestral land and of Co-ownership ?
(2) Whether the Plaintiff proves that, as the impugned Sale Deed of Dt. 28/12/1977 is against the right and interest of the Plaintiff, hence it is liable to be canceled ?Page 2 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022
C/SA/532/2022 ORDER DATED: 13/10/2022 (3) Whether the Plaintiff proves that, the Defendant does not have the right to enter into the plaintiff's possession of the disputed property ?
(4) Whether the Defendant proves that, the suit is barred by the mis- joinder of the parties ?
(5) Whether the Defendant proves that, the suit is barred by the Limitation Act ?
(6) Whether the Defendant proves that, the Plaintiff does not have any right and authority to file the present suit ?
(7) Whether the Plaintiff is eligible to get the relief which are prayed in the suit ?
(8) What Order and Decree ?"
3.1. The issues framed by the Trial Court referred to above came to be answered as under :-
"4 - My answers to the aforementioned issues are as follows :-
(1) In Negative, -
(2) In Negative, -
(3) In Negative, -
(4) In Affirmative, +
(5) In Affirmative, +
(6) In Affirmative, +
(7) In Negative, -
(8) As per Final Order."
Page 3 of 18
Downloaded on : Sun Dec 25 03:55:03 IST 2022
C/SA/532/2022 ORDER DATED: 13/10/2022
4. After considering the oral as well as the
documentary evidence, the Trial Court has dismissed the suit of the present appellants vide its judgment and decree dated 01.02.2010.
4.1. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Trial Court, the appellants preferred the appeal under Section 96 before the learned Principal District Judge, Panchmahal at Godhra being Regular Civil Appeal No.13 of 2010.
The Appellate Court, has considered the records of the Trial Court and after going through the records and the judgment and decree of the learned Trial Court, has framed the point of determination in para 4 :
"(4) The below mentioned issues have been raised before me for the disposal of the said Appeal.
1 - Whether the Appellant proves that, the Registered Sale Deed no. 2483 of the land in dispute is false, canceled, against the right and interest of the Plaintiff, hence it is liable to be canceled ? 2 - Whether the suit of Plaintiff is out of the time limit ?
3 - Whether the Appellant proves that, The Order and Decree pronounced by The Principal Civil Judge of Sehra in the case of Reg. Civil Suit 18 /2006 on 01/02/2010 vide exhibit -120 is erroneous, against Page 4 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 the established principles of law and against the produced evidences ?
4 - Whether it is proper to interfere in the Judgment pronounced by the Principal Civil Judge of Sehra ? 5 - What Order ?"
4.2. The issues framed by the Appellate Court referred to above came to be answered as under :-
"(5) My decisions for the above issues are as follows :-
1- In Negative,
2- In Affirmative,
3- In Negative,
4- In Negative,
5- As per Final Order."
5. After going through the records of the learned Trial Court and after going through the documentary evidence produced before the Trial Court, the Lower Appellate Court has dismissed the appeal preferred by the appellants - original plaintiffs and confirmed the judgment and decree passed by the learned Trial Court vide judgment and decree dated 10.02.2022.Page 5 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022
C/SA/532/2022 ORDER DATED: 13/10/2022 5.1. Feeling aggrieved and dissatisfied with the impugned judgment and order, the present Second Appeal is preferred by the present appellants - original plaintiffs.
6. The appellants have raised following substantial questions in support of their submissions :
(A) Whether both the Hon'ble Courts below have committed substantial error of law in not appreciating that the sale deed dated 28.12.1977 was illegal and was not binding on the plaintiffs and was against the interest of the plaintiffs?
(B) Whether both the Hon'ble Courts below have committed substantial error of law in holding that the suit of the plaintiffs was barred by limitation in the facts and circumstances of the present case?
(C) Whether both the Hon'ble Courts below have committed substantial error of law in misinterpreting the documentary as well as oral evidence on record and by not appreciating that the plaintiffs' possession was required to be protected ?
Page 6 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022C/SA/532/2022 ORDER DATED: 13/10/2022 (D) Whether both the Hon'ble Courts below have committed substantial error of law in not appreciating that the suit land was an evacuee property allotted to the father of the appellants' on permanent occupancy basis and, therefore also, the sale deed in question was invalid as the same was for a new tenure land ?"
7. Considering the questions of law suggested by the appellants, this Court is of the form opinion that there is no illegality or any perversity found in the judgment and decree passed by the learned Trial Court and the Lower Appellate Court, the present appeal is hereby summarily dismissed as there is no substantial question, questions of law or even question of fact are involved.
8. It is worthwhile to refer to the decisions of the Apex Court in the case of Kirpa Ram (Deceased) Through Legal Representatives and others Vs. Surendra Deo Gaur and others, reported in AIR 2021 SC 57, in the case of Kashmir Singh Vs. Harnam Singh reported in (2008) 12 SCC 786 and in the case of Illoth Valappil Ambunhi Vs. Kunhambu Karanavan reported in (2020) 18 SCC 317.
Page 7 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022C/SA/532/2022 ORDER DATED: 13/10/2022
9. In the case of Kirpa Ram (supra), the Hon'ble Apex Court has held and observed in paragraphs no.21, 22 and 23.
[21] In view of the above, we find that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.
[22] The argument of Mr. Mehta is that substantial question of law is required to be framed by the High Court while deciding the second appeal. We don't find any merit in the argument. Section 100 of the Code 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.
(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 Page 8 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 satisfied that the case involves such question.
[23] Sub-Section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or re- formulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.
10. In the case of Illoth Valappil Ambunhi (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.9 and 11to 14 as under:-
9. It is true, as rightly argued by learned senior counsel appearing on behalf of the appellant, that the High Court does not, in Second Appeal, embark upon re-analysis of evidence and interfere with the concurrent findings of facts. It is well settled that the condition precedent for interference under Section 100 of the CPC is the existence of a substantial question of law.
11. In Chunilal Sir Chunilal V. Mehta & Sons Ltd. V. Century Spinning and Manufacturing Co. Ltd., 1962 AIR (SC) 1314, a Constitution Bench of this Court held that the proper test for determining whether a question of law raised in the case is substantial would be, whether it is of Page 9 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 general public importance or whether it directly and substantially affects the rights of the parties, and if so, whether it is an open question in the sense that it has not finally been settled by this Court or the Privy Council or 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 principle to be applied in determining the question are well settled and there is mere question of applying those principles, or that the plea raised is palpably absurd, the question would not be a substantial question of law. In the aforesaid case, the construction of the Managing agency agreement was not only found to be a question of law, but also neither simple, nor free from doubt and accordingly the High Court was held to be in error in refusing to grant the appellant a certificate that the appeal involved a substantial question of law.
12 Learned senior counsel appearing for the Respondent has cited a very recent judgment of this Court in Gurnam Singh (D) by LRs. and Other vs. Lehna Singh (D) by LRs. reported in 2019(7) SCC 641, where this Court re-affirmed that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the CPC after the 1976 amendment is confined to a substantial question of law. Thus existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the CPC.
13 In Gurnam Singh s case (supra) this Court held that in a Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the Court were erroneous being :
(1.) contrary to the mandatory provisions of the applicable law; or (2) contrary to the law as pronounced by this Court; or (3) based on inadmissible evidence or no evidence.
14 It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, Page 10 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 attracting intervention of the High Court under Section 100 of the CPC.
11. In the case Kashmir Singh Vs. Harnam Singh (supra), the Apex Court has observed in paragraphs no.9, 10, 11, 12, 13 and 15 as under:-
"9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed u/s. 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 held that :
"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 Page 11 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 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."
10. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
11. The question of law raised will not be considered as a substantial question of law, if it 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. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V/s. Ramkrishna Govind Morey, 1976 1 SCC 803 held that Page 12 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.(See: Kondiba Dogadu Kadam V/s. Savitribai Sopan Gujar and Others, 1999 3 SCC 722).
12. The phrase "substantial question of law", as occurring in the amended Sec. 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 Art. 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/s. T. Ram Ditta, AIR 1928 PC 172, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Sec. 100 (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 Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao V/s. Noony Veeraju, AIR 1951 Mad 969:
"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."
13. This Court laid down the following test as proper test, for determining whether a question of law raised in the Page 13 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 case is substantial as quoted in Sir Chunilal's case (supra).
15. 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, insofar 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. (See :Santosh Hazari V/s. Purushottam Tiwari (deceased) by Lrs., 2001 3 SCC 179).
12. Considering the questions suggested by the learned counsel appearing for the appellants, it does not require any further hearing or re-determination. The question is practically covered by the decision of the highest court and/or there is no further determination of any of the questions suggested by the learned counsel is required.
Considering the test which is enumerated by the Hon'ble Apex Court in Sir Chunilal V. Mehta & Sons Ltd. V. Century Spinning and Manufacturing Co. Ltd., reported in 1962 AIR (SC) 1314 for determining whether a question of law raised in a given case is substantial Page 14 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 question. The substantial 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, insofar 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.
13. In view of the aforesaid settled principles, it appears that the both the Courts below have not Page 15 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 committed any error either on facts or on law. As per the decision of the Apex Court in the case of Gurnam Singh (D) by LRs. and Other vs. Lehna Singh (D) by LRs. reported in 2019(7) SCC 641, framing of substantial question of law is a sine qua non for the exercise of the jurisdiction under Section 100 of the Code. Considering the issue involved in the present appeal and the contentions raised on the basis of the factual aspects of the matter, this Court not thought it fit to enter into the factual aspects which does not involved any substantial question of law. It is also relevant to note here that the re-appreciation of the evidence is impermissible by this court while exercising the jurisdiction under Section 100 of the Code.
14. Considering the recent judgment of this Court in First Appeal No. 365 of 2019 in the case of Vinodbhai Bhikhabhai Patel vs. Shantaben Khushalbhai Patel , the present Second Appeal is devoid of any merits as it is not involved any substantial questions of law, the learned Trial Court while passing the impugned judgment and decree and dismissed the suit under the provisions of Order 7 Rule 11 of the Code and on all Page 16 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 counts, the present appellants - original plaintiffs failed before the learned Trial Court and the Lower Appellate Court that it is relevant to note herein that though the learned Trial Court rejected the application under the provisions of Order 7 Rule 11 of the Code, has tried the suit and after going through the various documentary evidence produced by both the sides and after framing the issue with regard to the provisions of limitation, non-joinder of the necessary party and other grounds, the suit can be dismissed, the learned Trial Court has examined the complete details and has not committed any error while dismissing the suit in furtherance thereto, the lower Appellate Court has independently framed the issues in para 4 and decide the appeal on the said point of determination giving complete finding on all the aspects. Therefore, I found no infirmity in both judgment of learned Trial Court and lower Appellate Court.
15. Considering the recent pronouncement of the Hon'ble Supreme Court that while exercising the powers under Section 100 of the Code, this Court has very limited scope, this Court cannot go into the facts of the matter, Page 17 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022 C/SA/532/2022 ORDER DATED: 13/10/2022 only in case of any perversity or in case of any questions of law rather substantial questions of law is involved. Then, in that case, this Court can exercise the powers under Section 100 as discussed herein above, I am of the opinion that there is no perversity, much less any infirmity found in the judgment of both the Courts.
Hence, the present Second Appeal is hereby dismissed summarily. No order as to costs.
16. Pending civil application shall stands disposed of accordingly.
(HEMANT M. PRACHCHHAK,J) KUMAR ALOK Page 18 of 18 Downloaded on : Sun Dec 25 03:55:03 IST 2022