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2020 Supreme(J&K) 465
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Vinod Chatterji Koul, J.
Abdul Rashid Rather - Appellants
Vs.
Ghulam Nabi and Ors.- Respondent
CSA No. 06/2017 and IA No. 01/2017
Decided On : 14-09-2020
For the Appellant :Surinder Kour, Senior Advocate and Manpreet Kour, Advocate
Headnote:
Civil Procedure Code,1908 – Section 100 r/w Order 42 Rule 1 and 2 – Land – Possession - Plaintiff, who has lost the legal battle in both courts below, has preferred this Civil Second Appeal against the concurrent judgment, passed by learned Principal District Judge, as also judgment passed by learned Munsif, Kishtwar (dismissing the suit of plaintiff, and seeks setting-aside of the same on the grounds tailored therein - Suit was filed by plaintiff before the Trial Court for grant of a decree of Permanent, Prohibitory Injunction, restraining defendant below-respondent here, from interfering in land owned and possessed by him, by flowing water through it or carving pathway on the said land - Defendants, in their written statement, vehemently denied the assertions made in plaint - Whether plaintiff is in possession of suit land mentioned in the plaint – Held, in court view, very jurisdiction of High Court in hearing a second appeal is founded on the formulation of a substantial question of law - Judgment of High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law - Second appellate jurisdiction of High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against - As a matter of law, a second appeal is entertainable by High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof - Section 100 of the Code provides that the second appeal shall be heard on question so formulated - After considering arguments put forth by learned senior counsel for appellant and after going through the record of Trial Court as well as 1st Appellate Court and keeping in view the discussion made hereinabove, court of the considered opinion and view that in this case no substantial question of law is involved for determination - Therefore, for the reasons discussed above, it is held that questions proposed by the appellant are not substantial questions of law arising in this Appeal nor does any other substantial question of law arise in this case, as such - Appeal is dismissed.
JUDGMENT :
Vinod Chatterji Koul, J.
1. Plaintiff, who has lost the legal battle in both the courts below, has preferred this Civil Second Appeal against the concurrent judgment and decree dated 31st November 2016, passed by learned Principal District Judge, Kishtwar (for short "1st Appellate Court") as also judgment and decree dated 29th October 2015, passed by learned Munsiff, Kishtwar (for brevity "Trial Court"), dismissing the suit of plaintiff, and seeks setting-aside of the same on the grounds tailored therein.
2. A suit was filed by plaintiff before the Trial Court for grant of a decree of Permanent, Prohibitory Injunction, restraining defendant below-respondent here, from interfering in the land measuring 2 Marlas falling under Khasra no. 146 min and 6 Marlas comprised in Khasra no. 147 min, situate at Sargwar, Tehsil Kishtwar (for short "suit land"), owned and possessed by him, by flowing water through it or carving pathway on the said land.
3. Defendants, in their written statement, vehemently denied the assertions made in the plaint.
4. The Trial Court, in light of pleadings of the parties, framed following Issues for determination of Suit of plaintiff/appellant:
1. Whether the defendants have earlier filed a suit titled Ghulam Nabi vs. Ghulam & Ors. with respect to same subject matter and the proceedings of this suit to be stayed as previous suit is still pending in this Court.? OPP
2. Whether the plaintiff is in possession of the suit land mentioned in the plaint? OPP
3. If Issue No. 1 is proved in affirmative, whether the defendants are opening drainage towards the land of plaintiff and also defendants are forcibly taking pathway of the plaintiff and are causing interference with the peaceful possession of the plaintiff over the suit land? OPD
4. Relief.
5. Subsequently, however, plaintiff sought amendment of the suit to incorporate relief for possession on the ground that during pendency of the suit, he was dispossessed by defendants from the suit land. Considering this aspect of the matter, the Trial Court framed following two additional Issues:
3A. Whether during the pendency of the suit, plaintiff has been dispossessed by the defendants from the suit land? OPP
3B. If Issue No. 1 is proved in affirmative then whether plaintiff is owner of the suit land is entitled to the possession of the suit land? OPP.
6. Both parties produced the evidence in support of their respective stand.
7. The Trial Court, after appreciating the evidence, decided afore-quoted Issues and dismissed the suit of plaintiff. Aggrieved, plaintiff filed an Appeal before 1st Appellate Court. The appeal also failed. It is how present Civil Second Appeal has come up before this Court.
8. Heard and considered.
9. Learned counsel for appellant, after ingeminating factual background aiming at cementing the case set up by plaintiff in Appeal on hand as also before courts below, has made reference to following questions, mentioned in paragraph 07 of the Appeal as well, that, according to him, are substantial questions of law and on the basis thereof instant Appeal is to be admitted:
i. Whether the First Appellate Court was justified in upholding the findings returned by the Learned Trial Court without properly evaluating the material on record evidence and documents and also the documentary evidence as required the bonafide requirement of the appellant.
ii. Whether the Trial Court fallen in error while deciding the issue of possession against the appellant in contravention of the revenue record and the possession existing on spot.
iii. Whether the Appellate Court has rightly exercised the Appellate jurisdiction while upholding the findings returned by the Trial Court by exercising its Appellate jurisdiction.
iv. Whether the trial Court and Appellate Court have to decide the question of possession without appreciating the revenue record and the position existing on spot.
v. Whether the Trial Court and the Appellate Court was justified in deciding the amended issues r
