Point of Law: Existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure, 1908 (CPC) Pleadings.

JUDGMENT :

BHASKAR RAJ PRADHAN, J.

1. A second appeal is maintainable before the High Court if the High Court is satisfied that the case involves a substantial question of law. The Supreme Court in Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure, 1908 (CPC). The court, for the reasons to be recorded, may also entertain a second appeal even on any substantial question of law, not formulated by it, if the court is satisfied that the case involved such a question. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. In Govindaraju vs. Mariamman, AIR 2005 SC 1008 the Supreme Court held that to be a substantial question of law it must be debatable, not previously settled by law of the land or by any precedent or answer to the same will have a material bearing as to the rights of the parties before the court. There must be first a foundation for the question laid in the pleadings and the question should emerge from sustainable findings of facts arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties. In Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 the Supreme Court held that the High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts. In Smt. Bismillah Begum (Dead) by LRs. vs. Rahmatullah Khan (Dead) by LRs. AIR 1998 SC 970 the Supreme Court held that the findings of fact arrived at by the courts below are binding in second appeal. The concurrent findings of the learned trial court and the learned first appellate court can be interfered only in cases where (i) material evidence were ignored or the courts acted on no evidence; (ii) there is wrong inferences from proved facts by erroneously applying the law; or (iii) the courts have passed the burden of proof wrongly.

2. The present dispute is between two brothers-the plaintiff and the defendant no. 1, amongst the six sons of late Nar Bahadur Gurung. The dispute relates to plot no. 302/472 and plot no. 90/473 (suit property) recorded in ‘parcha khatiyan’ no. 121 in the name of the defendant no. 1. According to the plaintiff, the properties of late Nar Bahadur Gurung had been divided between the sons without any formal partition deed. Plot no. 302 fell in his share. Plot no. 90 fell in the joint share of his brother late Kharga Bahadur Gurung and defendant no. 1. As the plaintiff was staying away from the suit land, the defendant no. 1 in connivance with some employees of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. The plaintiff prayed for declaratory reliefs and recovery of possession of the suit property.

3. In a suit for declaration and possession, the burden is on the plaintiff to establish its case.

4. The defendant no. 1 also admitted that there was partition of the properties of late Nar Bahadur Gurung but the suit property fell in his share.

5. The suit was dismissed by the learned Trial Judge holding that the plaintiff had failed to substantiate his plea that the suit property fell in his share.

6. The learned first Appellate Court upheld the findings of the learned Trial Court.

7. Both the courts examined the ‘parcha khatiyan’ (Exhibit-1) in substantial detail contrary to what has been pleaded in the appeal.

8. Section 101 of the Indian Evidence Act, 1872 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

9. Pleadin