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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, AJAY RASTOGI, JJ.
Kirpa Ram (Deceased) Through Legal Representatives & Ors. – Appellants
Versus
Surendra Deo Gaur & Ors. – Respondents
Civil Appeal No. 8971 OF 2010
Decided On : 16-11-2020
(A) Civil Procedure Code, 1908 – Sections 9 and 96 – Delhi Land Revenue Act, 1954 – Section 28 – Jurisdiction of Civil Court – Suit is simpliciter for injunction based upon possession of property – Said suit could be decided only by Civil Court as there is no mechanism prescribed under Land Revenue Act for grant of injunction in respect of disputes relating to possession – Civil Court has plenary jurisdiction to entertain all disputes except in cases where jurisdiction of Civil Court is either expressly or impliedly barred in terms of Section 9 of Code – Since there is no implied or express bar of jurisdiction of Civil Court in terms of Section 9 of Code, Civil Court has plenary jurisdiction to decide all disputes between parties – Issue of jurisdiction was not an issue of fact but of law – It could very well be decided by First Appellate Court while taking up entire appeal for hearing – High Court did not commit any illegality in not framing any substantial question of law while dismissing appeal filed by appellants. (Paras 16, 19, 20 and 21)
(B) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Substantial question of law – Substantial question of law is required to be precisely stated in memorandum of appeal – If High Court is satisfied that such substantial question of law is involved, it is required to formulate that question – Appeal has to be heard on question so formulated – However, Court has power to hear appeal on any other substantial question of law on satisfaction of conditions laid down in proviso of Section 100 of Code – If substantial question of law framed by appellants are found to be arising in case, only then High Court is required to formulate same for consideration – If no such question arises, it is not necessary for High Court to frame any substantial question of Law – Formulation of substantial question of law or reformulation of same in terms of proviso arises only if there are some questions of law and not in absence of any substantial question of law – High Court is not obliged to frame substantial question of law, in case, it finds no error in findings recorded by First Appellate Court – Second appeal can be dismissed without even formulating substantial question of law – No error in judgment and order of High Court dismissing Second Appeal – Appeal dismissed. (Paras 23, 25 and 26)
Facts of the case:
Present appeal has been preferred by Defendant No. 4, against concurrent findings of three Courts arising out of a suit for permanent injunction. Primary argument raised by Counsel for the appellants is that the High Court has dismissed the appeal without framing any substantial question of law which is mandatory in terms of Section 100 of the Code.
Findings of Court
Formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.
Result : Appeal dismissed.
JUDGMENT :
HEMANT GUPTA, J.
1. The present appeal has been preferred by Defendant No. 4, against the concurrent findings of three Courts arising out of a suit for permanent injunction.
2. The plaintiffs, now represented as respondent Nos. 1 and 2, filed a suit for permanent injunction on 31.7.1971 claiming that Khasra No. 238 measuring 4 Bighas 3 Biswas, situated in the revenue estate of Village Basai Darapur, Delhi is owned and possessed by them. Earlier, the plaintiffs had filed a suit for declaration challenging the vesting of the said land in Gaon Sabha in a suit filed on 20.7.1959. The said suit was decreed on 7.10.1960 holding that the plaintiffs are owners and Bhumidars of land comprising in Khasra No. 238. The Union of India had filed an application under Section 161-B of the Delhi Land Reforms Act, 1954 [For short, the ‘Reforms Act’] for setting aside the said decree dated 7.10.1960 but such application was dismissed by Sub-Judge, First Class, Delhi on 24.5.1968.
3. The plaintiffs alleged that defendant No. 1 claimed that Khasra No. 238 is part of the land allotted to it. The suit for permanent injunction was thus filed by the plaintiffs apprehending threat to their possession of land comprising Khasra No. 238, Village Basai Darapur, Delhi against defendant No. 1 i.e. The Refugees’ Cooperative Housing Society Ltd., its President – defendant No. 2, Secretary – defendant No. 3 and defendant No. 4, Kirpa Ram, predecessor in interest of the present appellants. Two separate sets of written statements were filed before the Court, one by defendant Nos. 1 to 3 and another by defendant No. 4. The defendant Nos. 1 to 3 raised preliminary objection that the jurisdiction of the Civil Court relating to Bhumidari land is barred under Section 85 of the Reforms Act. It was stated that defendant No. 4 threatened to encroach upon the land in the Society comprising of Khasra No. 1273 which led to proceedings under Section 145 of the Code of Criminal Procedure, 1973. Such proceedings have nothing to do with land comprising in Khasra No. 238.
4. The defendant No. 4 in written statement asserted that the plaintiffs were not in possession of the land in dispute and suit for injunction was therefore not maintainable. It was further stated that defendant Nos. 1 to 3 were not concerned with the land in question and that land did not belong either to plaintiffs or defendant Nos. 1 to 3 and they were not in possession thereof. Such land was in fact only in the possession of the defendant No. 4. It was also stated that the land in dispute does not bear Khasra No. 238 and that it is not situated in the revenue estate of Village Basai Darapur. Instead, the land in dispute bears Khasra No. 79 and is situated in revenue estate of Village Shakarpur.
5. In view of the pleadings of the parties, the following issues were framed by the trial court:
“1. Whether any notice u/s 70 of the Bombay Societies Act as extended to the Delhi was not necessary to be served on the defendants no. 1 to 3 before instituting the present suit? If so, then to what effect? (Objected to).
2. Whether this Court has no jurisdiction to try this suit as mentioned in the written statement?
3. Whether the plaintiffs are the owners in possession of the land in dispute bearing khasra no. 238 as alleged in the plaint?
4. Whether the land in dispute formed the part of khasra no. 238 of village Basai Darapur, Delhi as alleged in the plaint?
5. Whether the land in dispute formed the part of khasra no. 79 situated in village Shakar Pur as mentioned in the written statement? (objected to)
6. Whether this suit is properly valued for the purposes of court fee and jurisdiction? If not, then to what effect?
7. Whether the suit is bad on account of mis-joinder of defendants as mentioned in the written statement? If so, then to what effect?
8. Whether the plaintiffs are entitled for a decree for permanent injunction claimed in the plaint?
9. Relief.”
6. With respect of Issue No. 2, the learned trial court hel
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