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2017 Supreme(Raj) 6
IN THE HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
Pankaj Bhandari, J.
Harish Chandra Rawal - Appellant
Vs.
Ratna Rawal and Ors. - Respondents
Civil Second Appeal No. 136 of 2016
Decided On : 03-01-2017
For the Appellant : K.R. Saharan
For the Respondents: Pankaj Sharma, R.S. Mankad
Important Point—A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law.
Headnote:(A) Civil Procedure Code, 1908—Section 100—Second appeal—Section 100 of Code, as amended in 1976, restricts jurisdiction of High Court to hear a second appeal only on substantial question of law involved in the case—Obligation is cast on appellant to precisely state in memorandum of appeal substantial question of law involved in appeal and which appellant proposes to urge before High Court---High Court must be satisfied that a substantial question of law is involved in case and such question has then to be formulated by High Court---Such questions or question may be one proposed by appellant or may be any other question which though not proposed by appellant yet in opinion of High Court arises as involved in case and is substantial in nature---At the hearing of appeal, scope of hearing is circumscribed by question so formulated by High Court---Respondent is at liberty to show that question formulated by High Court was not involved in case.
(B) Civil Procedure Code, 1908—Section 100—Second appeal—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 land or a binding precedent and must have a material bearing on decision of case, if answered either way, insofar as rights of 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 pleadings and question should emerge from 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 case---An entirely new point raised for first time before High Court is not a question involved in case unless it goes to root of matter..
Result—Appeal dismissed.
Pankaj Bhandari, J.
1. Heard counsel for the parties.
2. It is contended by counsel for the appellant that a Patta was issued in favour of the appellant in September, 1987 by the Gram Panchayat, the appellant filed a suit for permanent injunction which was decreed. The respondent herein preferred an appeal which has been allowed and the suit of the appellant has been dismissed.
3. It is contended that a Bapi Patta has been issued in favour of the respondents No. 1 & 2 in July, 2007 which was not issued in accordance with Rajasthan Panchayati Raj Act, 1994.
4. Counsel for the appellant has placed reliance on Krishan Mohan Meena v. The Additional District Collector, District Baran in S.B. Civil Writ Petition No. 11886/2009.
5. Counsel for the respondents No. 1 & 2 have opposed the appeal on the ground that there is finding of fact and a second appeal does not lie if a substantial question of law is not involved. It is contended that plaintiff himself in his cross examination has admitted that Patta was issued in his name in place of his father. He has also admitted that the property was not purchased by him in an open auction. It is contended that from Ex. A-1, it is apparent that the appellant has got his name mutated being son of Devkrishna. It is further contended that the appellate court has rightly dismissed the suit holding that the property was not partitioned during the lifetime of Devkrishna and that the appellant was not having exclusive possession of the same.
6. I have considered the arguments put forth by counsel for the parties.
7. The Panchayat Samiti in this case before issuing Bapi Patta has issued notice to the appellant and afforded him opportunity of hearing and submitting relevant documents and has thereafter come to the conclusion that wrong patta has been issued to the appellant. A Bapi Patta was therefore, issued dividing the property into two.
8. The appellant herein was aware of the fact that the respondent has applied for issuance of patta. The patta was issued in favour of the appellant prior to the filing of the suit, the fact that the patta has been issued in favour of the respondent was also mentioned in the written statement filed by the respondent. The appellant did not care to amend the plaint and incorporate pleadings with regard to wrong issuance of the patta.
9. From the statement of the plaintiff, it is apparent that the property originally belonged to Devkrishna and the property was an open plot, thus, the contention that he was in exclusive possession do not have any force. Moreover, he has himself admitted in his cross examination that all were residing in common and separated only after the demise of their father. He has also admitted in his cross examination that the plot remained vacant even after demise of their father and there is no construction made thereupon.
10. The Hon'ble Apex Court in (2016) 10 SCC 315 Syeda Rahimunnisa Vs. Malan Bi has laid down the tests, which are required to be considered for determining whether the question of law is substantial or not. It is observed in para 25 of the judgment as under:
"25. A three-Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari speaking through R.C. Lahoti, J. (as his Lordship then was) examined the scope of Section 100 CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under:
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code.
10. At the very outset we may point out that the memo of second appeal filed by the appellant-plaintiff before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court
