Raj Mohan Singh, J.

1. The present regular second appeal was filed under Section 41 of the Punjab Courts Act. Framing of question of law was not necessary in the light of decision rendered by Full Bench of this Court in 'Ganpat v. Smt. Ram Devi and Ors. 1977 PLR Page 1', wherein it was held that the provisions of Section41 of the Punjab Courts Act, are in no way effected and curtailed by the amendment made in Section c of CPC. Now, since the regular second appeal is maintainable only with the aid of section 100 CPC, therefore, substantial questions of law is sine qua non for maintaining the appeal.

Prior to amendment of Section 100 CPC, a second appeal could have been filed before this Court on the grounds set out in clauses (a) to (c) of Section 100(1) CPC i.e. (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law and (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

Now the interference in the second appeal could only be made if substantial question of law arises in the case. Therefore, the interference cannot be only because the order is contrary to law, but when the disputed issues raised a substantial question of law. Limiting such a power in the Appellate Authority is based on public policy having roots in the maxim 'interest reipublicae ut sit finis litium'. The underlined purpose was to bring finality to the issues/litigation at some point of time.

At the admission of the appeal following substantial questions of law were formulated by this Court:--

"1. Whether the plaintiff-pre-emptor was required to plead the rate of rent, the name of landlord, the date of tenancy and the payment of rent?

2. Whether without pleading these details in the plaint, is the plaintiff- pre-emptor entitled to lead evidence on these aspects and whether the said evidence can be looked into without pleadings?

3. Whether the pleading of tenancy alone would serve the purpose?"

2. Defendants Dalel Singh and Karam Singh sons of Chhaju Ram are in second appeal against judgment and decree dated 01.02.2002 passed by Additional District Judge, Sonepat, confirming and upholding the judgment and decree dated 14.11.2000, passed by Additional Civil Judge (Senior Division), Sonepat.

3. Plaintiff Kalu filed suit for declaration and in alternative for possession by way of pre-emption of House No. 575, situated within abadi-deh (Lal Dora) of village Pinana, District Sonepat having specified dimensions as shown in Para No. 1 of the plaint. The aforesaid house was exclusively owned by defendants No. 3 to 5 and the plaintiff claimed himself to be a tenant in a portion marked ABCDEFGH out of house marked shown by ABCDXH, which is double storeyed house.

4. Defendants No. 3 to 5 sold the house in question in favour of defendants No. 1 and 2 for a sale consideration of ` 50,000/- with all rights appurtenant thereto vide registered sale deed dated 16.09.1992.

5. Plaintiff claimed that the sale consideration has been wrongly fixed on the higher side and in-fact the house and the land underneath thereto was not more than ` 30,000/- on the date of sale. The plaintiff claimed himself to be tenant for the last more than 30 years and was in actual physical possession of the same, whereas defendants No. 3 to 5 were non-resident of the village. Before execution of the sale deed, it was alleged that no notice was served upon the plaintiff by the vendors.

6. The plaintiff in Para No. 7 of the plaintiff specifically pleaded that on 09.06.1993, the defendants No. 1 and 2 i.e. the appellants in collusion with BDPF, Sonepat dismantled the roof of first floor and took away wooden planks/karis which were 120 in numbers and were of the size of 4" x 4" x 10" and four sets of doors for which they had no rig

Click Here to Read the rest of this document