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2015 Supreme(Chh) 119
HIGH COURT OF CHHATTISGARH, BILASPUR
SANJAY K. AGRAWAL, J.
Road Lines, Partnership Firm & Another – Appellants
Vs.
Rajkunwar Bai & Others – Respondents
Second Appeal No. 157 of 2005
Decided On : 20.4.2015
For the Appellant:Shri B.P. Sharma and Shri Hari Agrawal, Advocates.
For the Respondent:Shri Y.C. Sharma and Shri Manoj Paranjpe, Advocates.
Headnote:
Code of Civil Procedure - Section 96/ 100 - Documentary Evidence On Record – Jurisdiction - Trial Court - Trial Court, upon appreciation of the oral and documentary evidence adduced by the parties, by its judgment and decree while deciding all the ten issues in of plaintiffs held that the plaintiffs are the owner and title holder of the subject suit property as the defendants have failed to prove the execution of the sale-deed by late Bhagirathi in and the defendants further failed to prove the execution of sale-deeds - During pendency of the appeal, application under Order 6 Rule 17 of the Code of Civil Procedure for amendment in written statement was filed, which came to be rejected by the first appellate Court and the matter was heard finally and in the meanwhile order was challenged by the defendants in Civil Revision before the High Court of Madhya Pradesh – Held, plea about proviso to sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression on any other substantial question of law clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question - This Court, after hearing the learned counsel for parties is satisfied and of considered opinion, that no additional substantial question of law arises for determination in the facts of the case as both the courts below have concurrently held that defendants have failed to prove the execution of attestation of sale deed by Bhagirathi in and the defendants have further failed to prove the execution of the sale-deeds in their vide respectively and findings recorded by two courts below holding that defendants have failed to prove the execution of sale deed by Bhagirathi in the defendants have further failed to prove the execution of the sale-deeds in their are concurrent finding of fact based on oral and documentary evidence on record and it is neither perverse contrary to the record. Very recently, in the matter of and Others their Lordships of the Supreme Court has held that concurrent findings of fact should not be upset by this Court unless the findings are shown to be perverse, as such, submission made by learned counsel for appellant to frame additional substantial question of deserves to be rejected and accordingly rejected - Quite recently in the matter of National Fertilizer Limited and Others, (2014) 13 SCC 277, their Lordships of the Supreme Court has clearly and categorically held that the second appellate court has no jurisdiction to admit or decide second appeal without formulating substantial question of law at the initial stage and as such formulation of substantial question of law is sine qua non for exercising jurisdiction under Section 100 of CPC - Appeal Dismissed
Certainly. Based on the provided legal document, here are the key points:
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The trial court appreciated the oral and documentary evidence and held that the plaintiffs are the rightful owners of the suit property, as the defendants failed to prove the execution of the sale deed by late Bhagirathi and the subsequent sale deeds in favor of the defendants (!) (!) .
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The first appellate court affirmed the trial court's findings on all issues but permitted an amendment in the written statement following a remand ordered by a higher court. This remand was characterized as a partial (limited) remand, not a wholesale remand (!) (!) (!) (!) .
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During the remand, the trial court framed an additional issue based on the amendment, and the defendants led evidence on this issue. The trial court then decided this issue in favor of the plaintiffs, further confirming the defendants' failure to prove the sale deed execution (!) (!) .
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Both the trial and appellate courts concurred that the remand was partial/limited, and the trial court was bound by the directions of the appellate court. The remand did not require re-evaluation of all issues but was limited to the additional issue framed after the amendment (!) (!) .
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The legal framework for remand under the relevant procedural rules was discussed, emphasizing that wholesale remand requires specific conditions, and in this case, the remand was appropriately classified as partial, thus limiting the scope of re-examination (!) (!) (!) (!) (!) (!) (!) .
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The second appellate court found that the courts below correctly held that the remand was partial and not a wholesale remand, and that the findings on the issues related to the execution of sale deeds were concurrent, based on evidence on record, and not perverse (!) (!) (!) (!) .
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The court also addressed the framing of substantial questions of law, noting that the appellant did not initially frame or raise the necessary substantial questions at the time of appeal, but the court has the discretion to frame additional questions if justified (!) (!) (!) .
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It was reaffirmed that the second appeal can only be entertained if a substantial question of law is involved and properly formulated at the initial stage. Since no such questions were initially raised by the appellant, and the findings are based on facts that are not perverse, the appeal was dismissed (!) (!) (!) (!) .
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The final conclusion was that the second appeal lacks merit, the findings of fact are conclusive, and the original decrees are reaffirmed. The appeal was dismissed, and the suit was decreed in favor of the plaintiffs (!) (!) .
In summary, the key legal points revolve around the nature of the remand (partial vs. wholesale), the binding nature of concurrent factual findings, and the procedural requirements for framing substantial questions of law in second appeals.
1. The substantial questions of law formulated and to be answered in this second appeal preferred by defendants are as under:-
(i) Whether both the Courts below were justified in holding that the 5th Additional District Judge, Raipur has partially remanded the case vide judgment and decree dated 25.6.1998?
(ii) Whether while deciding Civil Appeal No. 21-A/96 both the courts below were required to give finding on all issues framed for decision of the suit?
2. The imperative facts required for determination of above-stated substantial questions of law are as under:-
[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]
(2.1) Plaintiff No. 1 to 5/Respondent No. 1 to 5 filed a civil suit against the defendant No. 1 & 2/appellants herein seeking relief of declaration, injunction and for damages in respect of the agricultural land bearing Khasra No. 582/2, area 0.162 hectare situated at Telibandha, Raipur (hereinafter referred to as the subject suit property) stating inter alia that they are owner and title holder of the subject suit property and the alleged sale deed executed by Vimal and Radheshyam in favour of the defendants on 28.12.1985 and 12.12.1985 in respect of the subject suit property are not binding upon them and as such, they are entitled for relief claimed in the suit.
(2.2) Defendants/appellants herein resisted the suit, filed by the plaintiffs/respondents stating inter alia that the subject suit property was originally belonged to late Bhagirathi, husband of plaintiff No. 1 and father of plaintiffs No. 2 to 5 and he executed the sale-deed in favour of one Jagdish Lavtare on 7.12.1964 and thereafter, Jagdish Prasad Lavtare sold the part of the subject suit property to one Vimal Chand vide sale deed dated 28.12.1970 and the remaining part of the land was sold to one Radheshyam Agrawal on 28.12.1970 and in turn, lastly the Vimal Chand and Radheshyam sold the subject suit property vide registered sale deed dated 28.12.1985 (Ex. D-1) 12.12.1985 (Ex.D-2) to the present defendants and in pursuance of the said registered sale-deeds, the defendants, appellants herein became the owner and title holder of the subject suit property and, as such, the suit deserves to be dismissed.
3. The Trial Court, upon appreciation of the oral and documentary evidence adduced by the parties, by its judgment and decree dated 31.7.1996, while deciding all the ten issues in favour of plaintiffs held that the plaintiffs are the owner and title holder of the subject suit property as the defendants have failed to prove the execution of the sale-deed by late Bhagirathi in favour of Jagdish Lavtare dated 7.12.1964 and the defendants further failed to prove the execution of sale-deeds, in their favour by Vimal Chand and Radheshyam vide Ex.D-1 & Ex.D-2.
4. Feeling aggrieved and dissatisfied with the judgment and decree of the trial Court, defendants/appellants herein preferred first appeal under Section 96 of the Code of Civil Procedure before the first appellate court. During pendency of the appeal, application under Order 6 Rule 17 of the Code of Civil Procedure for amendment in the written statement was filed, which came to be rejected by the first appellate Court on 10.10.1997 and the matter was heard finally and in the meanwhile order dated 10.10.1997 was challenged by the defendants in Civil Revision No. 2036 of 1997 before the High Court of Madhya Pradesh.
5. The High Court of Madhya Pradesh allowed the revision, so filed by defendants and directed the First Appellate Court to decide the application for amendment at the time of hearing the appeal on merits.
6. The first appellate Court, by its judgment and decree dated 25.6.1998 affirmed the finding of the trial Court on all the issues holding it in accordance with law, however, the first appellate Court, in view of the order of High Court of Madhya Pradesh allowed the application for amendment and remanded the matt
