1. Second appeal against concurrent findings; plaintiff sought mandatory injunction for removal of barricade erected by defendant in a 4-foot gali. (Para 1 , 2 , 3 )
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2025 Supreme(Online)(Raj) 13803
HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Sudesh Bansal, J
Chand – Appellant
Versus
Pooran – Respondent
S.B. Civil Second Appeal No. 100/2024
Advocates:
For the Appellants/Petitioners: Manu Bhargava, Gajendra Singh Rathore
For the Respondents: Aatish Jain
For the Appellants/Petitioners: Manu Bhargava, Gajendra Singh Rathore
For the Respondents: Aatish Jain
A second appeal under Section 100 CPC is maintainable only on a substantial question of law; concurrent findings of fact by two courts cannot be interfered with unless they are perverse, illegal, or contrary to established law.
Headnote:(A) Civil Procedure Code - Second Appeal - Scope of Interference - High Court cannot substitute its own opinion for that of the first appellate court in a second appeal under Section 100 CPC unless the conclusions are contrary to mandatory law, contrary to Apex Court precedents, or based on inadmissible evidence. (Para 8)
(B) Finding of Fact - Concurrent Findings - Where two courts have concurrently reached a finding based on appreciation of evidence and not based on misreading of documents or against provisions of law, the High Court is not required to interfere. (Para 8, 9)
(C) Mandatory Injunction - Consent based construction - A decree for mandatory injunction to remove a construction is not maintainable where the construction was carried out pursuant to a settled agreement (Panch Faisla) signed by the plaintiff. (Para 3)
Issues: Whether a substantial question of law arises for interference with concurrent findings of two courts regarding the refusal of a mandatory injunction for the removal of a boundary wall erected through mutual consent.
Legal Category Hierarchy
- practice and procedure
- property law
-
agreements and contracts
-
compromise and settlement
- panch faisla (Para 3)
-
compromise and settlement
Table of Contents
2. Plaintiff argued the barricade blocked access to the gali, while defendant relied on a Panch Faisla with plaintiff's consent for its erection. (Para 3 )
3. Concurrent findings that the barricade was built under a Panch Faisla with plaintiff's consent and did not block the gali's use. (Para 3 , 4 , 5 , 6 )
4. A High Court cannot re-appreciate evidence in second appeal unless findings are perverse or based on no evidence; substantial question of law is required. (Para 5 , 6 , 7 , 8 , 9 )
5. Second appeal dismissed as devoid of merit; concurrent findings did not raise any substantial question of law. (Para 10 , 11 , 12 )
6. When can a High Court interfere with concurrent findings of fact in a second appeal under Section 100 CPC?
Only when findings are perverse, based on no evidence, or contrary to law; a substantial question of law is a necessary condition. (Para 5 , 8 , 9 )
7. What constitutes a substantial question of law for the purpose of Section 100 CPC?
It arises when findings are contrary to statutory law, Supreme Court precedent, or based on inadmissible evidence or no evidence at all. (Para 5 , 8 , 9 )
8. Is a Panch Faisla admissible in evidence when signed by the parties involved?
Yes, a Panch Faisla signed by parties is admissible and can be relied upon to establish consent and the terms of the compromise. (Para 3 , 5 )
Order
1. This is plaintiff's Civil Second Appeal under Section 100 CPC. Plaintiff's suit in respect of 4 feet wide Gali, existing between houses of plaintiff and defendant, has been decreed and defendant has been restrained from obstructing the use and access of plaintiff in this Gali. However, plaintiff's prayer for issuance of mandatory injunction, to remove a small construction of boundary wall up to 2 feet height marked as 'बा री' in the map appended with the plaint, has been rejected vide judgment dated 03.08.2019 passed in Civil Suit No.59/2007 (CIS No.164/2014) by Civil Judge, Laxmangarh, District Alwar whereagainst plaintiff's First Appeal has been dismissed on merits vide judgment dated 28.11.2023 by Additional District Judge, Laxmangarh, District Alwar, hence this Second Appeal.
2. The issue in the present Second Appeal is within the narrow compass and revolves only in respect of dismissal of plaintiff's suit for mandatory injunction to remove a pakka barricade marked 'बा री' in the map erected by defendant in the Gali in question.
3. In respect of this barricade in question, both the courts below have concurrently held and observed on the strength of document Ex.A/1 and A/4 that this small barricade was erected by defendant, in pursuance of a decision by the Panch Faisla dated 31.03.2007, with the consent of plaintiff. Since outlets of plaintiff's house have their opening in Gali in question and dirty & rainy water from such outlets flows towards defendant's house and in this respect, quarrel ensued between the parties, hence, it was decided by Panch Faisla that defendant may erect a short boundary wall/barricade in the Gali to prevent the flow of dirty water from plaintiff's house towards defendant's house. Indisputably, plaintiff signed this Panch Faisla, marked as Ex.A/1. In this view, both courts have declined to issue a decree for mandatory injunction.
4. Apart from above, bare perusal of the pictures of site through photographs available on record (Ex.A/4), it prima facie appears that the Gali of 4 Feet is a Gandhi Gali which has been left open for dropping dirty & rainy water etc. to be used by both the parties in order to excrete/flow of dirty water from their respective houses. This Gali is not a Gali as way/thorugh. In this view, the erection of short boundary wall in form of barricade by defendant does not block the access of plaintiff in this Gali and is not prejudicial to the right and interest of plaintiff to use this Gali for dirty/rainy water from his house.
5. In view of the concurrent fact findings of both Courts, in respect of erecting the disputed boundary wall pakka barricade in the Gali in question by defendant under a Panch Faisla, which was accepted by plaintiff and his signature finds place thereupon, no substantial questions of law arises in this Second Appeal. Looking to the purpose of Panch Faisla, same has rightly been held admissible in evidence.
6. The substantial questions of law, as suggested and mentioned in the memo of Second Appeal from Para Nos. 1 to 9 are virtually mixed questions of facts and law. Both Courts have appreciated the evidence of both the parties and then, have recorded a fact finding that plaintiff does not have any legal right to get a decree for mandatory injunction for removal of short boundary wall/like a barricade in the Gali in question, which does not impede the appellant from use of this Gali, for the purpose its left.
7. Thus, this Court does not find any force in the contention of counsel for the appellant and the fact findings recorded by two courts below, do not suffer from any vice of arbitrariness perversity and illegality much less jurisdictional error.
8. The scope of the High Court to grant indulgence in concurrent fact findings recorded by the two courts below, is extremely limited and confined to the existence of a substantial question of law, while exercising its power and jurisdiction under Section 100 of the CPC. In a series of decisions rende
