Point of Law: Second Appeal – Substantial question of law -condition precedent for entertaining and deciding a Second Appeal being existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

JUDGEMENT :

1. This Civil Second Appeal is against and seeking setting-aside of judgement and decree dated 29th November 2018, passed by Principal District Judge, Kulgam (for short “1st Appellate Court”) and upholding of judgement and decree dated 28th February 2018, passed by Sub Judge, Kulgam (Trial Court “for short”) on the grounds contained therein.

2. Perusal of record on file reveals that on 26th June 2003, plaintiff – respondent no.1 herein, filed a Suit for permanent prohibitory injunction before the Trial Court, stating therein that he purchased land measuring 01 Kanal 07 Marlas falling under Survey no.397 min situated at Nagam Tehsil Kulgam (for brevity “suit property”), from defendant no.4 – appellant herein and in this connection a sale agreement was also executed and that he had been in possession of suit property for thirty years. Over suit land, plaintiff claimed to have constructed a cowshed and a Kothar. However, defendants were alleged to have been causing interference in and trying to dispossess plaintiff from suit property and, therefore, he filed the suit before the Trial Court praying for grant of decree for permanent prohibitory injunction restraining defendants from causing any interference over the suit property. Defendants, including appellant appeared before Trial Court, and filed written statement.

3. The Trial Court in view of the pleadings of the parties, on 21st June 2006, framed following issues for adjudication of the case:

(1) Whether plaintiff has purchased suit land from defendant No.4 by virtue of agreement to sell and is in possession of suit land since last thirteen years enjoying usufruct out of it? …OPP

(2) Whether house and cowshed constructed by the plaintiff is existing on the suit land? …OPP

(3) Whether suit land has been sold by the father of the defendant no.4 to the panchayat department and is in possession of department? …OPD

(4) Whether Panchayat Ghar is existing on the suit land? ….OPD

(5) Whether plaintiff has been ejected from the suit land by order of Deputy Commissioner Anantnag dated 25.04.2003? …OPD

(6) Whether plaintiff has admitted in writing on 25.04.2003 that he will vacate the suit land within a one week? ….OPD

(7) Relief? …OP Parties.

4. However, on 16th August 2013, the Trial Court recast the following issues for proper adjudication of the matter:

(1) Whether the plaintiff is in possession of suit land over which he has raised construction in the shape of house and a cowshed? ….OPP

(2) Whether the defendants are causing illegal interference in the suit land without any right and justification? ….OPP

(3) Relief? ….OP Parties

5. Plaintiff/respondent no.1 produced four witnesses, besides himself, before the Trial Court in support of his case. Defendant/appellant produced three witnesses. The Trial Court by judgement and decree dated 28th February 2018 dismissed suit of plaintiff/respondent no.1.

6. Plaintiff – respondent no.1 preferred an Appeal before 1st Appellate Court against Trial Court judgement and decree, in which it was urged that Trial Court failed to appreciate material produced by parties in its right and proper perspective and that all the witnesses produced by him had in one voice acknowledged that plaintiff/respondent no.1 was in possession of suit property and the sale agreement was proved. It was also averred that Trial Court had brushed aside the evidence adduced by parties, especially evidence adduced by plaintiff and confirmed by witnesses of defendant/appellant to the extent that defendant/appellant had given possession of suit property to plaintiff and thereover plaintiff had made constructions.

7. The 1st Appellate Court while considering the appeal preferred by plaintiff/respondent no.1, has comprehensively discussed all issues concerning subject-matter of the Lis. The 1st Appellate Court has held that plaintiff – respondent no.1, has proved his possession and also interference on the part of defendants in the suit property, so the 1st Appellate Court protec