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1 - 5 of 5 (0.19 seconds)Section 100 in The Code of Civil Procedure, 1908 [Entire Act]
Neelakantan And Ors. vs Mallika Begum on 29 January, 2002
Therefore the ratio of the case of Neelkantan and others, (supra) is of no help to the defendants appellant in this case.
Kondiba Dagadu Kadam vs Savitkibai Sopan Gujar An Dors on 16 April, 1999
14. Refuting the contention aforesaid the learned counsel for the plaintiffs respondent has submitted that in this case the appellate Court below on proper appreciation and re-appraisal of the evidence as well as the directions contained in the order dated 16.8.1985 read with 16.3.1988 passed in S.A. No. 215 of 1978 and S.A. No. 216 of 1978 came to the finding that Jattu Mahto had a son Maharaj Mahto. It has also been submitted that the observation contained in the order dated 16.8.1985 was modified as per order dated 16.3.1988 whereby the observation in respect of Exis. 4 and 5 were ordered to be ignored by the lower appellate Courts and it was directed to take into consideration these two documents and the learned appellate Court below had re-appraised the evidence on the record taking into consideration Exts. 4 and 5 being validly and legally admitted in evidence and again came to the finding of fact that Maharaj Mahto is the son of Jattu Mahto, the recorded tenant in the Survey Record of Rights in respect of Khata No. 14 and viewed thus there is no substantial question of law at all involved in this case. Relying upon the ratio of the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., AIR 1999 SC 2213, it has been submitted that the right of appeal under Section 100 of the CPC is neither a natural nor an inherent right attached to the litigation. Being a substantial statutory right it has to be recorded in accordance with law in force at the relevant time and the conditions mentioned under Section 100 of the CPC must be strictly fulfilled before a Second Appeal is maintained and no Court has the power to add to or enlarge those grounds and the Second Appeal cannot be decided on merely equitable grounds. It has also been submitted that the substantial question of law has to be distinguished from a substantial question of fact and the issue regarding Maharaj Mahto being the son of Jattu Mahto, the recorded tenant of Khata No. 14 is substantially a question of fact. Elucidating further it has been submitted that 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 are possible, one drawn by the lower appellate Court is binding on the High Court in Second appeal. Adopting any other approach is not permissible. 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 has also been submitted that the appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in the judicial manner and it cannot be termed to be an error either of law or of procedure requiring any interference in the Second Appeal. It has also been submitted that this Court in Second Appeal can not interfere with the judgment of the first appellate Court merely on the ground that the first appellate Court failed to advert to the reasons scribed by the trial Court and the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party.
Raja Shiva Prasad And Ors. vs Bhuban Mahto And Ors. on 3 August, 1933
It is also relevant to mention here that the suit of the plaintiff respondents is equally maintainable before the civil Court in view of the ratio of the case of Shiva Prasad Singh and Ors. v. Bubhan Mahto and Ors., AIR 1933 Pat 539, read with the ratio of the case of Gobinda Bouri and Ors. v. Kristo Sardar, AIR 1926 Pat 64. The plaintiffs respondent have acquired perfect right, title and interest in the suit properties and they are in possession over the same and, therefore, Section 34 of the Specific Relief Act is not at all attracted in this case. Therefore, in the facts and circumstances of this case and the evidence on the record including Exts. 4 and 5 referred to above it can never be said that the finding regarding Maharaj Mahto being the son of Jattu Mahto, the recorded tenant of Khata No. 14, held by the learned appellate Court below is without any legal evidence on the record or on misreading of the evidence or it suffers from any legal infirmity which has materially prejudiced the case of the defendants appellant. It can also not be said that the finding recorded by the lower appellate Court below is perverse. Therefore, it is not open for this Court to set aside such a finding and to take a different view in the matter.
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