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Ratan Singh v. Ram Kishan & Others - SECOND APPEAL No. 1993 of 1989 [2005] RD-AH 4510 (20 October 2005)


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Court No. 25

Second Appeal No. 1993 of 1989

Ratan Singh Vs. Shri Ram Kishan and others


Hon. Dilip Gupta, J.

This Second Appeal is directed against the judgment and decree dated 10.11.1989 passed by the II Additional Civil Judge, Jhansi in Civil Appeal No. 41 of 1988. The aforesaid Civil Appeal arose out of Original Suit No. 635 of 1986 which had been filed claiming permanent injunction against the defendants from interfering with the portion marked by letters ABCD in the map attached to the plaint which was claimed to be the portion in the tenancy of the plaintiff. The trial court decreed the suit but the lower appellate court set aside the judgment and decree of the trial court and dismissed the suit.

The substantial question of law, on which this Appeal was admitted, was whether the lower appellate court had taken a correct view of the facts and law in dismissing the suit without setting aside the findings given by the trial court while decreeing the suit.

Learned counsel for the appellant has placed the judgment of the lower appellate court and from a bare perusal of the same, it is more than apparent that the lower appellate court has elaborately dealt with the documentary as well as oral evidence and has recorded a categorical finding that the portion in respect of which permanent injunction had been sought by the plaintiff was, in fact, the common bath room and latrine to be used by all the tenants residing in that area and the plaintiff was not justified in claiming it to be his exclusive tenanted portion. Learned counsel for the appellant has not been able to point out any infirmity in the aforesaid finding. There is, therefore, no illegality in the findings recorded by the lower appellate court.

In this context reference may be made to the following decisions of the Supreme Court. 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 Vs. Mariamman reported in 2005 AIR SCW 916 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 Vs. 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."

No substantial question of law, therefore, arises for consideration in this Second Appeal. It is, accordingly, dismissed. The interim order, if any, stands vacated.

There shall be no order as to costs.

Dt/- 20.10.2005



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