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Balshwar Prasad & Another v. Smt. Sudamia & Others - SECOND APPEAL No. 121 of 1980 [2006] RD-AH 5219 (6 March 2006)


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Court No. 9.

Second Appeal No. 121 of 1980.

Baleshwar Prasad and others       ...     Plaintiffs-Appellants.


Smt. Sudamiya and others           ...     Defendants-Respondents

Hon. Sunil Ambwani, J.

Heard Sri R.K. Tiwari holding brief of Sri A.N. Bhargava for appellants and Sri C.K. Rai, learned counsel for the respondents.

The Second Appeal arises out of concurrent judgment of the Trial Court dated 31.10.1974 in Original Suit No. 327 of 1967 dismissing the suit for permanent injunction and removal of construction from the land in suit, against which theCivil Appeal No. 159 of 1974 was dismissed on 17.10.1979.

The Trial Court found from the documentary evidence that the land in suit originally belonged to Ram Duar Bhagat. It came to the hands of defendant from him vide sale deed dated 22.12.1952 and 31.7.1959.  The findings of the Trial Court, which are findings of facts, are quoted as below:

" Thus from the documentary evidence on record it is quite clear that the land in suit originally belonged to Ram Duar and later on it came in the hands of the defendants by virtue of sale-deeds dated 22.12.52, at 31.7.59.  The oral evidence of P.W.1 Lachchimina also supports the defendants case.  She had admitted that the land in suit belonged to Ram Daur but she failed to prove her possession over the land or any right in her land by cogent evidence.  It is crucial to note that P.W.3 Ganesh Prasad  the only independent witness, produced by the plaintiff, has failed to disclose the factum of possession on the land in


suit.  He could not  even definitely say as to who was in possession of the land in suit.  The plaintiff has come with the allegations that there were Nads in the disputed land but the Vakil Commissioner's report and map dated 18.7.69 shows that there was no Nad on the disputed land.  Thus the plaintiff claim fails on this ground too.  Further there is material contradiction between the statements of P.W. 1 and Lachchimina (Plaintiff No. 3) and P.W.2 Baleshwar Prasad (Plaintiff No.1) on a material point.  P.W. 1 stated on oath that Baleshwar was her "Bhanja" and that the sale deed was executed without any consideration.  On the contrary P.W. 2 Baleshwar deposed that he was not related to Ram Lal (i.e. husband of P.W.1 Lachchimina) and that sale deed was executed for consideration of Rs. 2000/-.  These contradictions clearly shows that no reliance can be placed on the testimony of both these witnesses.

Thus from her totality of evidence on record it is clear that Ram Lal had no interest in her property in suit.  He was not ever in possession of the said land.  The decision of the criminal case can not help him in respect of possession or any interest in the disputed land under such circumstances no right or interest can pass to her vendee plaintiff no. 1 Baleshwar by virtue of sale deed dated10,6,1966,  The plaintiffs failed to prove their possession over the land in suit.  The plaintiffs have failed to prove that the land in suit e belonged to them."

These findings were affirmed by the Appellate Court, which also held that the plaintiffs were not owners of the land.

The second appeal was admitted on following two questions:


1. Whether the plaintiff's suit was bad under section 34 of the Specific Relief Act, when, according to the plaintiff, the relief of possession was also pleaded and claimed in the plaint; and

2. Whether the conclusion of the Lower Appellate Court, that no part of the land in the present suit was involved in the earlier suit No. 292 of 1963,is based upon mis-reading of the documents relating to that case on the record of the present suit?"

Section 100 of Code of Civil Procedure was amended by Section 37 of Act No. 104 of 1976 which came into effect from 1.2.1977. The amended code provided for  a Second Appeal  to the High Court from  every decree passed in appeal,  by any court subordinate to the Court, only if  the High Court is satisfied that the case involves  a substantial question of law. The memorandum of appeal under sub section (3)  is required to precisely state the substantial question of law involved in the appeal. The High Court under sub Section (4) if satisfied that a substantial question of law is involved  in the case, shall  formulate the question. Further sub section  (5) mandates that the appeal shall be heard on the question so formulated,  and the respondents shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The proviso, however, reaffirms the powers of the  Court,  to hear,  for reasons to to recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied,  that the case involves such question. The High Court, however, must record reasons for formulating  such question at the stage of hearing.

In Govindarau Vs. Mariamman (2005) 2 SCC 500, the Supreme court held that the substantial question of law is


'sine qua non' for exercise of jurisdiction under Section 100 of the CPC and relied upon the judgements in Kshitish Chandra Purkait v. Sandosh Kumar Purkait (1997) 5 SCC 438;  Panchugopal Barua vs. Umesh Chandra Goswami (1997) 4 SCC, 713;  Kondiba Dagadu Kadam vs. Savitribai Sapan Gujar (1999) 3 SCC 722, and  traced out the background and reasons  for adding such on restriction in section 100 CPC. It referred to Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179,  in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of Section 100 was referred, to and the meaning of 'Substantial question of law' is explained as follows

"14. As to which would constitute a substantial question of law, it was observed: (SCC pp. 187-88, para 14)

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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."


The judgement was followed in Thiagrajan vs. Shri Venugopalaswamy B. Coil (2004) 5 SCC 762. In Phool Patta vs. Vishwanath Singh (2005) 6 SCC 40, the Supreme Court held that the High Court could have heard the second appeal on any question not formulated by it, only after formulating such question, for reasons to be recorded, and not otherwise.

I have gone through both the judgments very carefully and find that the two questions raised or any other question which may raise from the grounds of appeal cannot be treated as substantial questions of law for consideration in this Second Appeal.  The findings that the plaintiffs predecessor were not in owner shop of the land is based on appreciation of  evidence.  The Appellate Court held that the boundaries of the disputed land were not  disputed. It was further found that the judgment in Original Suit No. 292 of 1963 filed by the defendant  giving rise to this Second Appeal against Ram Lal,  to remove the encroachments, will not have the effect of resjudicata.  It was held in this suit that Ram Lal had raised the boundary wall on the old site of the wall.  The defendant was not held to be owner of the land lying towards the east of the house of Ram Lal.  The land in suit was not involved in that suit.  The plaintiff was not held to be the owner of the land in suit and thus the fact whether defendant lost against Ram La, is not material fact at all

I find that the Second Appeal is concluded by findings of fact and does not raise any substantial question of law to be decided .  The Second Appeal is dismissed.

Dt. 6.3.2006.



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