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INDRASAN PRASAD & OTHERS versus GOPAL & OTHERS

High Court of Judicature at Allahabad

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Indrasan Prasad & Others v. Gopal & Others - SECOND APPEAL No. 1917 of 1989 [2007] RD-AH 8770 (9 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.19

Second Appeal No. 1917 of 1989

Indrasan Prasad & Ors.

Vs.

Gopal & Ors.

~~~~

Hon. Dilip Gupta, J.

This Second Appeal has been filed by the defendants IInd Set for setting aside the judgment and decree passed by the learned Civil Judge, Ghazipur in Civil Appeal No.121 of 1983 by which the Appeal that had been filed for setting aside the judgment and decree passed by the learned Munsif was dismissed.

The suit had been field for permanent injunction restraining the defendants from auctioning the entire house as the plaintiffs had half share in the disputed house. It was asserted that Vishwanath and Baijnath had obtained the disputed house on 3.8.1937 from the Zamindars and constructions were raised. They remained in possession of the house throughout their lives and after their death the plaintiffs and defendant IInd Set and IIIrd Set came into possession and that the share of the plaintiffs in the house is half. It was further stated that the defendant IInd Set had wrongly made a representation that the house was his sole property in order to get the loan.

The defendant nos. 1, 2, 3 and 5 stated that the plaintiffs were not the owners of the house and that the house in dispute belongs to defendant no. 6 and his brothers. Defendant nos. 8, 9 and 10 stated that the house had been purchased by joint income of the members of the family and that it had been partitioned in the year 1958.

The Trial Court decreed the suit. One of the issue that arose for consideration was whether the partition had taken place in the year 1958. The Courts below on the basis of of evidence recorded a finding that though the mess of the parties were separated but the partition of the house had not taken place and, therefore, held that the defendants Ist Set had no right to auction the half share of the house in dispute for realising the loan advanced in favour of defendants IInd Set and, accordingly, the Suit and the Civil Appeal were dismissed.

The scope of Section 100 of the Code of Civil Procedure has been explained by the Supreme Court in a number of decisions. In Panchugopal Barua Vs. Umesh Chandra Goswami reported in (1997) 4 SCC 713 the Supreme Court while explaining the scope of Section 100 of the Code of Civil Procedure observed as follows:-

"7. A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing 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 the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ''substantial question of law' is thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C."

In Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. reported in AIR 2001 SC 965 the Supreme Court while pointing out what would constitute is substantial question of law, observed as follows:-

"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 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."

This judgment has been followed in a number of decisions including Thiagarajan & others Vs. Sri Venugopalaswamy B.Koil & others (2004) 5 SCC 762 and Govindaraju Vs. Mariamman reported in 2005 AIR SCW 916.

In Kashibai w/o Lachiram and another Vs. Parwatibai w/o Lachiram and others reported in 1995 6 SCC 213 the Supreme Court observed as follows:-

"12. .......... It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view."

In Ram Prasad Rajak Vs. Nand Kumar and Bros. and another reported in AIR 1998 SC 2730 the Supreme Court observed as follows:-

"7............... Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the second appeal and consider the merits.

8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court it is evident that it had interfered with a finding of fact arrived at by the Second Additional District Judge, Giridih in the first appeal on an appreciation of the evidence. The High Court made an attempt to re-appreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact after a scanty discussion of the evidence, the High Court observed: "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide necessity." The High Court has acted beyond its jurisdiction in appreciating the evidence on record."

In Govindaraju (supra) the Supreme Court observed as follows:-

"19. Even if the High Court was of the view that the findings of fact recorded by the courts below were wrong, in our opinion, these findings of fact could not be disturbed without coming to the conclusion that the findings recorded were perverse i.e. based on misreading of evidence or based on no evidence. The High Court did not come to such a conclusion."

In Sir Chunilal V. Mehta and Sons Ltd. Vs. Century Spg. & Mfg. Co. Ltd. reported in AIR 1962 SC 1314 the Supreme Court pointed out that the substantial question of law has to be distinguished from a substantial question of fact and it observed as follows:-

"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."

Both the Courts below have recorded a categorical find of fact that the defendants IInd Set were not the owners of the entire house and, therefore, had no right to auction the other half of the house in dispute. These findings are based on the evidence on record.

No substantial question of law arises for consideration in this Appeal. It is, accordingly, dismissed at the admission stage.

Date: 9.5.2007

GS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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