Court No. - 37
Case :- SECOND APPEAL No. - 249 of 2018 Appellant :- Mohd. Umar Respondent :- State Of U.P. Through Collector And Another Counsel for Appellant :- Sandeep Saxena,Ved Mani Sharma
Hon'ble Ved Prakash Vaish,J.
1. Heard Sri Ved Mani Sharma, learned counsel for the appellant.
2. This is a plaintiff's second appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as 'C.P.C.').
3. The brief facts as set out in the present appeal are that the appellant/plaintiff filed a suit for injunction bearing Original Suit No.642 of 2006 restraining the respondents from forcibly cutting the sugarcane crops and auction the same. The appellant/plaintiff alleged that he is in possession of the plot in question and after consolidation, new number was given as 1845 to the plot in question. The defendants/respondents intend to dispossess the appellant and therefore, the suit for injunction was filed by the appellant. The suit was contested by the respondents by filing a written statement. The respondents denied the allegations made in the plaint. Issues were framed by learned trial court on 5.12.2008 and 22.5.2013 and both the parties, adduced their evidence.
4. After considering the pleadings of the parties and evidence adduced by both the parties, the suit was dismissed by the learned Additional Civil Judge, (J.D.), Rampur vide judgment dated 27.9.2017 and decree dated 10.10.2017.
5. Aggrieved by the said judgment and decree, the appellant filed an appeal bearing Civil Appeal No.51 of 2017. The said appeal was also dismissed by the learned Additional District Judge, Rampur vide judgment dated 5.1.2018 and decree dated 18.1.2018.
6. Feeling aggrieved by the said judgment and decree, the appellant/plaintiff has preferred the present second appeal.
7. Learned counsel for the appellant submits that the appellant/plaintiff is in possession of the plot in question for the last several years and he has perfected his right by adverse possession. The courts below have not considered the evidence regarding the possession of the appellant and wrongly dismissed the suit of the appellant.
8. I have given my thoughtful consideration to the submissions made by learned counsel for the appellant and also carefully perused the material available on record.
9. The submission of the learned counsel for the appellant appears to be fallacious and deserves to be rejected. The appellant/plaintiff has not pleaded the date, month or year since when he is in possession of the plot in question. The appellant/plaintiff has also not adduced any evidence since when he is in possession of the plot in question. On a specific query put to learned counsel for the appellant since when he is in possession of the plot in question, learned counsel for the appellant submits that he is not aware about the exact date, month or year when the appellant came into the possession of the plot in question. Moreover, the appellant/plaintiff had filed the suit for injunction on the basis of the adverse possession but the appellant has failed to prove the adverse possession.
10. It is settled principle of law that plea of adverse possession can be taken as a shield and not as a sword.
11. The submissions made by learned counsel for the appellant do not give rise to the substantial question of law. It is settled principle of law that this court will not sit as if it is considering the regular first appeal so as to examine the entire matter on facts and law both. The scope of second appeal under Section 100 of C.P.C. is very limited and this Court shall enter upon only when there is a substantial question of law and not otherwise.
12. What is 'Substantial Question of Law' is no more res integra in view of law laid down by the Hon'ble Supreme Court in the case of 'Santosh Hazari versus Purushottam Tiwari' (2001) 3 S.C.C. 179. In the said case it was held that :-
“The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction to - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance”.
13. The same has been followed in the case of 'Thiagarajan and others versus Venugopalswamy B. Koli and others', AIR 2004 S.C. 1913, and in the case of 'Govindaraju versus Mariamman' (2005) 2 S.C.C. 500.
14. A similar view was taken by the Hon'ble Supreme Court in another case titled as 'Vijay Kumar Talwar versus Commissioner of Income Tax, Delhi' (2011) 1 S.C.C. 673 and Union of India versus Ibrahim Uddin and another (2012) 8 S.C.C. 148 and 'State of U.P. Versus Shanti Devi and another' 2013 (120) RD 494.
15. The Supreme Court in the case of 'State Bank of India and others Vs. S.N. Goyal', AIR 2008 SC 2594 has laid down the law with respect to 'Substantial Questions of Law'. The relevant part of the judgment of the Supreme Court is extracted herein below:
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lies between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance "
16. The Hon'ble Supreme Court in the case of 'Union of India vs. Ibrahim Uddin and another' (Supra) has reiterated the same principles.
17. In the present case, both the courts below after considering the pleadings of the parties and evidences adduced by both the parties recorded concurrent finding of fact. Learned counsel for the appellant could not point out any manifest error or illegality in the impugned judgments. No perversity or infirmity is found in the findings recorded by both the courts below to warrant interference through this appeal. No question of law much less substantial question of law has arisen before this Court. Since no substantial question of law is shown to have arisen, the appeal deserves to be dismissed at this stage itself.
18. In view of the above, the appeal stands dismissed.
(Ved Prakash Vaish, J.) Order Date :- 30.4.2018 Vivek Kr.