Jammu & Kashmir High Court - Srinagar Bench
Pran Nath & Anr vs Seeni on 21 July, 2010
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR C2A No. 15 of 2009 Pran Nath & anr Petitioners Ved Paul & Ors Respondents !Mr. M. A. Qayoom, Advocate ^Mr. B. A. Bashir, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 21/07/2010 :J U D G M E N T:
For valid admission of Civil Second Appeal, formulation of substantial question of law for determination as ordained by Section 100 of Civil Procedure Code is sine qua non. The formulation must be such which may not in any way be liberal so as to defeat the object and scope of Second Appeal, limits of which are well defined by the phraseology of Section 100 C.P.C itself.
The litigative process in between the parties has started with the institution of plaint on 16.12.1986. After two decades the said suit for ejectment has been decreed vide judgment and decree dated 28.3.2007 by the Court of Sub Judge (CJM) Srinagar. The appeal preferred by the appellants before the first appellate court of District Judge, Srinagar failed as dismissed vide judgment and decree dated 22.10.2009, hence the present Civil Second Appeal.
In view of the protracted litigative process the respondents with the aim and object of getting early disposal of the Second Appeal, have before institution of this appeal lodged the caveat so caused the appearance on its first date of hearing.
In the process of considering as to whether substantial question of law is involved so as to maintain the appeal, both learned counsel for the parties were heard at length.
Learned counsel for the appellants contended that substantial questions of law are involved for determination which he has formulated in his memo of appeal. In support thereof, reliance has been placed on the judgments reported in:
9) AIR 1999 SC 1441; 10) AIR 2001 SC 1273; 11) AIR 2005 SC 439; 12) AIR 2002 SC 1428; 13) AIR 2006 SC 2234; 14) AIR 2007 SC 2306; 15) AIR 1978 SC 413; 16) SCC 2001 (IV) 756;
Learned counsel for the respondents opposed admission of the appeal by stating that no substantial question of law for determination is involved, therefore, dismissal of the appeal at the threshold shall be in keeping with the object of provisions of Section 100 CPC. In support of his contention, learned counsel placed reliance on the judgments reported in:
33) AIR 2000 SC 3408; 34) (2002) 1 SCC 134; 35) AIR 2006 SC 2172; 36) AIR 1999 SC 864; 37) AIR 2001 SC 965; 38) AIR 2006 J&K 76; 39) AIR 1999 SC 2213; 40) (2008) 10 SCC 714; 41) (2008) 2 SCC 741; 42) (2002) 1 SCC 134; 43) AIR 1999 SC 1104; 44) (1996) SCC Vol.3 392; 45) (2008) 11 SCC 586; 46) AIR 1996 SC 3521; 47) (2009) 5 SCC 264; 48) AIR 1999 SC 3331; 49) AIR 2006 Kant. 231; 50) AIR 2001 Kant. 231; 51) AIR 2006 J&K 76; 52) AIR 1972 Gua. 122; 53) AIR 1961 SC 325; 54) AIR 2001 Raj. 306; 55) AIR 1999 SC 3089; 56) AIR 2004 MP 58; 57) 1985 4 SCC 369; 58) 1992 4 SCC 363; 59) (2005) 4 SCC 649; 60) (2004) 7 SCC 698; 61) 2005 (II) S.L.J. 468; 62) 2006 (II) S. L. J. 636; 63) (2002) 5 SCC 397; 64) 1997 (4) SCC 413;
It shall be quite advantageous to refer to the judgments rendered by Honble Apex Court and relied by the learned counsel for the parties, as to what is the law laid down and to be followed strictly:
It shall be quite apt to quote para 7 of the judgment Veerayee Ammal Vs. Seeni Ammal ({2002} 1 SCC 134):
7. Section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) was amended by amending Act 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved substantial question of law. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court in its judgment, for decision.
The appeal can be heard only on the question so formulated, giving liberty to the respondent to argue that the case before the High court did not involve any such question. The amending Act was introduced on the basis of various Law Commission reports recommending making of appropriate provisions in the Code of Civil Procedure which were intended to minimize the litigation, to give the litigant a fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the Courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi held (AIR p. 1205, para 3):
It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff- respondents did not and could not contend that the High Court was competent to go behind the finds of fact concurrently recorded by the two courts of fact. It shall be quite relevant to quote following portion from para 27 of the judgment Mst. Sugani Vs. Rameshwar Dass & anr (AIR 2006 SC 2172) ..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. Following portion from para 14 of the judgment Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor (AIR 1999 SC 864), is apt to be quoted:
.Whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law, which can enable the High Court in the second appeal to upset such a finding of fact. It shall be quite apt to quote following portion from para 14 of the judgment Santosh Hazari Vs. Purushottam Tiwari (Dead) (AIR 2001 SC 965): ..It will, therefore, depend on the facts and circumstances 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. The Honble Apex Court in para 5 of the judgment Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors (AIR 1999 SC 2213) has held: ..The High Court cannot substitute its opinion for the opinion of the first appellate Court unless 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 without evidence. It shall be quite apt to quote para 10 of the judgment Navaneethammal Vs. Arjun Chetty (AIR 1996 SC 3521):
10. This court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower Courts. From the judgment Mahaboob Vs. Maktumsab ({2008} 11 SCC 586), para 16 shall be quite apt to be quoted below:
16. It is settled law by this Court, that, it is impermissible for the High Court to interfere on a question of fact particularly when both the courts below rejected Ext. D-11 as not admissible since the same was not properly proved by the defendant. The conclusion arrived at by the High Court is not acceptable and the decision arrived at by the trial court and the first appellate court declaring the plaintiff as the owner in possession of 7.10 acres is acceptable. In the wake of respective contentions and the law as laid down by the Honble Apex Court, to notice precisely the factual background for appreciating the matter in its right perspective has become imperative:
Basically three storeyed building having two shops in the ground floor situated at Gonikhan Amirakadal Srinagar, initially belonged to one Prithvi Chand Sahani S/O Ram Chand Sahani R/O Wazirbagh Srinagar. Same building was purchased by the respondents vide sale deed dated 24.4.1986 registered on 26.4.1986. Out of two shops, one shop was under
the tenancy of the appellants on the monthly rent of Rs.100/ per month. When the respondents became owners of the building including the shops, the appellants in order to secure their tenancy rights filed a suit for permanent injunction before the court of 1st Additional Munsiff, Srinagar so as to obtain the order of injunction prohibiting the respondents from disturbing their tenancy and at the same time admitting that they have become tenants of the respondents in respect of the suit shop.
The respondents required the shop for one of their unemployed brother Inder Paul (respondent No.3) so served a notice for ejectment upon the appellants on 27.9.1986. When the same was not responded by the appellants, second notice for ejectment and payment of arrears of rent was served upon them on 27.10.1986. When appellants failed to hand over the possession, the respondents filed a suit for ejectment and recovery of arrears of rent.
For avoiding any confusion the respondents hereinafter shall be referred to as the plaintiffs and the appellants as defendants.
In the suit so instituted it was specifically pleaded that the plaintiffs have purchased the building for their own use and business and have also added that one of the plaintiffs, namely, Inder Paul, who at that time was engaged in a private job earning meager wages for his sustenance, wanted to run his own business in the suit shop in order to improve his career as he was pleaded to do any kind of business in the suit shop as the plaintiffs had sufficient funds to finance the business. It is in this backdrop it has been pleaded that the plaintiffs reasonably require the suit shop for the use and occupation of plaintiff No.3 (Inder Paul). It has also been added that the outstanding rent also be recovered.
The suit was resisted by the defendants.
On the basis of respective pleadings as many as 10 issues have been framed which are reproduced herein-below:-
11) Whether the suit is liable to be rejected for want of specification? (OPD)
12) Whether the suit is triable by a Munsiffs Court in terms of Section 15 of C.P.C, if so, what is its effect?(OPD)
13) Whether the cause of action has accrued to the plaintiffs on 1st December, 1986? (OPP)
14) Whether the plaintiffs require the suit premises for their personal use?(OPP)
15) Whether one of the plaintiffs namely Inder Paul needs the suit property to run his own business? (OPP)
16) Whether the comparative advantage is in favour of the plaintiffs in case defendant is evicted? (OPP)
17) Whether the suit has been filed only for forcing the defendant to increase the rent? (OPD)
18) Whether rent of Rs.100/ P.M. from 1st May, 1986 is outstanding against the defendant, if so, what is the effect upon the suit? (OPP)
19) Whether partial eviction will satisfy the requirement of the plaintiff? (OPP)
20) Relief.
Issues No.1 and 2 were treated as preliminary issues and decided in favour of the plaintiffs. Revision against the said findings as filed by the defendants before the High Court earned dismissal. Learned trial court while recording findings on issue No.4 and 5 has concluded that the plaintiffs require the suit shop for their personal use so as to keep the same at the disposal of one of their brothers, namely, Inder Paul who all along has been waiting for taking over possession of the shop so as to run the business and to earn a dignified livelihood. The trial court has also concluded that the requirement and need for the suit shop is genuine and bona-fide and that the defendants have a stable financial position as they have taken other shops in the same vicinity for earning livelihood, thus decided both the issues in favour of the plaintiffs. Furthermore learned trial court while recording finding on issue No.6 relatable to the comparative advantage has concluded that the plaintiffs would be suffering more hardship and disadvantage than that of the defendants and while weighing the comparative advantages and disadvantages of each party, the balance lies in favour of the plaintiffs, so decided this issue also in favour of the plaintiffs.
Learned trial court while recording finding on issue No.9 vis-`-vis partial eviction has concluded that partial eviction is not possible in respect of the suit shop in view of its small size. Furthermore both the parties are unanimous in their evidence that partial eviction is not possible and that no business can be run if the suit shop is partitioned.
The first appellate court i.e. Court of District Judge, Srinagar while recording finding issue-wise has agreed with the conclusions of the learned trial court, so dismissed the appeal. Whether the questions as formulated in the memo of appeal would constitute the questions involving determination of substantial question of law so as to maintain the appeal, has to be appreciated in the light of the arguments as have been advanced by the learned counsel for the parties.
The substantial questions of law as have been framed in the memo of appeal are as under:-
6. Whether a suit for ejectment can be decreed on the ground of personal necessity, when the person who pleads personal necessity, does not appear before the Court to give his own evidence in support of his claim?
7. Whether a suit for ejectment can be maintained by a group of persons who have purchased the suit property, even after the said property has been divided by them between themselves and specific shares of the property have been given by them to each other?
8. Whether a person who has filed the suit for ejectment can be granted the said relief after his migration from the place where he was living and has settled at some other place, with no hope to return, to the place where he was previously residing and where the subject matter of the suit is situated?
9. Whether a decree for ejectment can be granted on the grounds, which are not pleaded by the landlord in the suit?
10. Whether an order passed by the High court in its writ jurisdiction, with respect to the subject matter of a suit for ejectment, can be disobeyed by the trial court or else the appellate court, while passing the judgment and decrees, decreeing the suit of the plaintiff for ejectment?
11. Whether a suit for ejectment can be decreed by the Court, when a tenant has attorned to the actual landlord under the threat of dispossession?
In support of above referred question No.1, learned counsel for the defendants (appellants) would contend that the plaintiff No.3) (respondent No.3) (Inder Paul) for whom personal necessity was pleaded has not appeared before the Court to give his own evidence and in absence thereof ejectment could not be ordered. In this regard reliance has been placed on the judgment Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. & Ors. (AIR 2005 Supreme Court 439).
In the reported case it has been held that the power of attorney holder cannot depose in place and instead of principal in respect of the matter which only the principal can have a personal knowledge and in respect of which he can be subjected to cross examination. But every case has its own facts and features. In the instant case the plaintiffs (respondents) are the brothers. The suit had been instituted and one of the plaintiffs has been examined as a witness who has answered all the questions and nothing beyond could be within the knowledge of Inder Paul (respondent No.3). Learned counsel for the plaintiffs (respondents) has rightly placed reliance on the judgment captioned Gopal Krishan Vs. Priti Bala & Ors reported in AIR 2006 J&K 76, wherein power of attorney holder who had acted all along and deposed on behalf of the principal and was also subjected to cross examination who knew all acts, therefore, non-appearance of the principal-plaintiff in the witness box was held not to be fatal. Facts of the instant case are almost similar. One of the plaintiffs (as also the attorney holder) has been examined has deposed and on cross examination has also deposed everything connecting the matter in dispute. In case there would have been some other information which could be only within the knowledge of Inder Paul, for whom shop was required, then definitely it could be said that the defendants (appellants) have been deprived of eliciting details from Inder Paul.
In view of the settled position, the question No.1 formulated cannot by any standard be termed to be a question involving determination of a substantial question of law.
The question No.2 as formulated in the memo of appeal does not arise out of the basic pleadings so require addition to the pleadings, thereafter requires re-appreciation of evidence which is impermissible. In this connection reliance has been rightly placed on the judgment Dharmarajan and Ors. Vs. Valliammal & Ors. reported in (2008) 2 SCC
741. Para 10 and portion of para 11 are apt to be quoted:-
10. A glance at the High Court judgment suggests that the High Court has gone into a dangerous area of appreciation of evidence, that too on the basis of non-existent substantial questions of law. The five questions of law framed by the High Court were as follows:
(6) Whether the admitted long possession of the original owner Karupayee and that of Doraiswamy who claims title through her cannot be tacked together in law for the purpose of adverse possession?
(7) Whether the burden is not on the plaintiff who is out of possession to prove that he has got valid title in the suit properties as laid down by this court?
(8) Whether non-examination of the vendors of the plaintiff is not fatal to the case of the plaintiff?
(9) Whether Ext. A-8 is not admissible in evidence? And (10) Whether lower appellate court is justified in decreeing the suit for declaration, having found that the defendants are in possession and having refused to grant injunction in favour of the plaintiff?
11. In our opinion none of these questions could be said to be either question of law or a substantial question of law arising out of the pleadings of the parties. The learned counsel for the appellants tried to highlight that the interference with the finding of the fact is also permissible as the substantial question of law includes within its ambit re-appreciation of evidence on the question of perversity and in this regard relied on the judgment captioned Kulwant Kour Vs. Gurdial Singh Mann reported in AIR 2001 SC 1273. Para 32 of the judgment is apt to be quoted 32. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second 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 stands 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 dealt 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-`-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 to Section 103 of the Code which reads as below:-
103. 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
(d) Which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or
(e) Which has been wrongly determined by such Court, or
(f) Courts by reason of a decision on such question of law as is referred to in the 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 notice above.
The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but 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. While going through the record it was not found that there is any perversity in the findings of fact recorded.
The third question as formulated also pertains to re-appreciation of the evidence. No doubt plaintiff for whom shop is required is stated to be a migrant but a person cannot be said to remain migrant for ever. After taking over possession of the shop, it is for the migrant to settle down. Nothing in anticipation can be said. The question is a factual question dependent upon the consequent circumstances, therefore, such question cannot be termed to be involving substantial question of law. Furthermore at the time of institution of the suit, plaintiff No.3 was not a migrant, bona fide requirement at the time of institution of the suit is not impeached, same position has been properly taken care of.
The formulated question No.4 in the memo of appeal is a new addition as the positive case of the plaintiffs all along has been that Inder Paul (respondent No.3) genuinely requires shop for doing his own business and based on the same ground ejectment has been ordered. Such a question does not constitute even a question of law not to speak of substantial question of law.
Learned counsel for the appellants while relying on the judgment Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkune & anr. reported in AIR 1999 SC 2226, contends that reasonable and bona fide requirement is missing. Under the garb of genuine requirement learned counsel wants re-appreciation of the evidence which is not permissible unless found to be perverse, but no such perversity has been noticed so as to persuade the Court to formulate a question for determination.
Next learned counsel placed reliance on the judgment captioned Jai Singh Vs. Shakuntala reported in AIR 2002 SC 1428, wherein it has been held that the scrutiny of the evidence is not totally prohibited but at the same time it has been held that such scrutiny is permissible only in very exceptional circumstance, that too with great circumspection. The test as has been laid down while applying to the facts and features of the present case does not persuade the Court to go for the scrutiny of the evidence.
Learned counsel next placed reliance on the judgment Hero Vinoth Vs. Seshammal (AIR 2006 SC 2234), wherein it has been held that in case trial court or first appellate court are found to have misdirected themselves in appreciating the question of law or have placed onus on the wrong party, then there is scope for interference after formulating a substantial question of law but on perusal of the record it nowhere emerges that the trial court or appellate court have anywhere misdirected themselves in appreciating the evidence.
From the judgment Rehman Jeo Wangnoo Vs. Ram Chand & Ors (AIR 1978 SC
413), it shall be quite apt to quote para 2:-
2. The only ground which we consider tenable and which has been urged by the appellant before us turns on the failure of the courts of fact in recording a finding as contemplated in the proviso to the Explanation to S. 11 (I) (h) of the Act. Obviously an error has been committed by the High court in thinking that there is a concurrent finding of fact under the proviso aforesaid.
The trial court and the first appellate court have really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this behalf. The learned trial court as well as appellate court have in specific terms emphatically considered the partial eviction and have concluded that the partial eviction is not viable as the size of the shop is very short and it has come in evidence of both the parties that partial eviction in any case shall be impermissible. Therefore, this aspect of the matter has been considered and settled, as such, in view of the settled position it cant attract determination of any question of law what to speak of substantial question of law.
In the judgment Madhukar & Ors Vs. Sangram & Ors ({2001} 4 SCC 756) it has been held that it is the duty of the appellate court to appreciate the evidence and to record reasons and then to return issue-wise findings.
While going through the judgment and decree of the first appellate court, it becomes quite evident that the learned appellate court has issue-wise dealt with the matter and in the process has not only considered the findings recorded by the trial court but has also on proper appreciation of evidence concurred with the findings of the learned trial court. Nothing inconsistent has been noticed which would give rise to interference with the findings. Therefore, no question of law emerge for determination.
The formulated question No.5 in the memo of appeal has got no basis as in the writ jurisdiction different issue is under consideration, determination of which may or may not have bearing on the judgment and decree, that is a separate issue, cannot be commented upon. The suit property being located on Nazool land and the question of rights vis-`-vis Nazool land is a matter separately to be dealt with in the writ by the Writ Court. The scope of suit, appeal and the second appeal is well defined, so the orders passed in the writ proceedings whether can have any effect has to be seen in the execution proceedings and any valid ground can be taken as against the execution of the decree if available to the party. So on such premises no substantial question of law exist.
Formulated question No.6 is in the background a development i.e. the defendants(appellants) claim to have attorned to the actual landlord i.e. Nazool Department as the land over which suit property is existing belongs to Nazool Department and with the object of defeating result of long drawn process of litigation the defendants (appellants) have now claimed that the land belong to Nazool Department so they have some different rights being now attorned to the actual landlord. It is to be borne in mind that the suit property admitted by the defendant (appellants) to be owned firstly by Prithvi Chand Sahani and now by the plaintiffs (respondents) and the shop existing therein admittedly being under the tenancy of the defendants (appellants) and their admission in the suit that the respondents are landlords, in alternative what can be the effect of the adjudication of the matter in the writ proceeding, is a matter which may be available to be looked into at the time of execution of the decree. It cant be termed as question of law to be determined, more particularly when it requires addition to the pleadings and then re-appreciation and scrutiny of evidence.
It is worth to be noted that the claim of the defendants (appellants) to have attorned to the actual landlord was also attempted to be incorporated in the pleadings by moving a motion for amendment which was not allowed and the revision preferred against the said order of refusal was also dismissed. The said judgment rendered in Civil Revision No.64/2006 captioned Pran Nath & Ors Vs. Ved Paul & Ors is reported in 2006 (II) S. L. J 636. It shall be relevant to quote para 5 of the judgment:
5. The question is whether defendants in a particular suit can, after admission of plaintiffs proprietorship over suit property allowed to turn round on the basis of somebody else putting forth a claim of ownership over it. If yes, then that is bound to tell upon the consistency of the stands taken by parties in their pleadings and render the litigation unending, because that would virtually subject to admission/denials in the pleadings to extraneous circumstances unknown till then, and perhaps open a floodgate to manipulations by coming litigants. For instance, in the instant case, after Nazool Department another party comes forth to stake his claim of ownership of the structure, or the plaintiffs project another person with a claim of tenancy and support it, the court would obviously have to allow their amendment pleas; and that sort of exercise if permitted is bound to count litigation into a game of manipulations and burden the courts of law with unending machinations of mischievous litigants. Thus, if allowed, the proposed amendment would totally alter the existing architecture of the case open the door for further alterations and thereby demolishing the proceedings taken till date during more than two decades of litigation and push them back to square one. Besides that admission and denials made in pleadings with verification cant be that easily allowed to be altered as they ordinarily form the basis of the trial of cases. The order passed in the revision has attained finality so this settled position is not now open to be reconsidered.
In view of the law laid down by the Honble Apex Court, while considering the case of the defendants (appellants) in the background of its own facts and features, the questions formulated in the memo of appeal, do not constitute substantial questions of law so as to be formulated for determination. Resultantly appeal for the stated reasons warrants dismissal, so is dismissed as such.
Copy of the judgment and decree along with appellate court record as well as trial court record be sent back.
(Mohammad Yaqoob Mir) Judge Srinagar 21.07.2010 Mohammad Altaf