Court No. - 31
Case :- SECOND APPEAL No. - 775 of 2018 Appellant :- Saddiqu Beg Respondent :- State Of U.P. And Another Counsel for Appellant :- Tawvab Ahmed Khan
Hon'ble Shabihul Hasnain,J.
Heard Sri Vijay Kumar, learned counsel for the appellant as well as Sri V. K. Nagaich, learned Standing counsel for the State.
The appellant has framed following substantial questions of law:-
"I. Whether in a suit for mandatory injunction plaintiff has to stand on his own leg and has to establish his own right and title and cannot claim himself to be entitled to get the decree on the basis of failure of defendant to prove his Right or Title?
II. Whether the relief for mandatory injunction is barred by limitation as provided under Article 58 of Limitation Act because the same was claimed after 6 years and 11 months?
III. Whether the two Courts below have wrongly shifted the burden of proof upon the shoulder of the defendant/appellant to prove that the seized wood was not stolen?
IV. Whether the finding of fact recorded by the two Courts below are perverse due to non consideration of documentary as well as oral evidence filed by the defendant appellant particularly the oral statement of Defendant appellant Saddique Beg examined as DW-1?
He has read these substantial questions of law as above.
After hearing the arguments for some time I feel that these are not substantial questions of law which have arisen out of the case. They are general principles. The law has been settled in various pronouncements of Hon'ble Supreme Court, which are binding upon this Court. Hence, the same are rejected. Later he submitted that he is not pressing the first three propositions.
So far the fourth substantial question of law as enunciated by learned counsel for the appellant is concerned as quoted above, it is clear that he has himself claimed that there are questions of facts. The questions of fact can never be the subject matter of a second appeal. I find that this is also not a substantial question of law and is liable to be rejected.
Accordingly, I find that all the substantial questions of law are to be rejected. The appellant has lost from both the courts below. Concurrent findings of fact are there against him. I do not find any good reason to entertain this second appeal on merits and in law. The appeal is accordingly dismissed.
Order Date :- 17.9.2018 RKM.