1. The plaintiff- appellant Shiv Dayal Varshney filed Original Suit No. 43 of 2010 in the Court of Civil Judge (Junior Division), Agra, seeking relief of permanent injunction against the defendants- respondents. The suit was dismissed by learned trial court vide judgment and decree dated 20.10.2014.
2. Being aggrieved the plaintiff- appellant filed Civil Appeal No. 170 of 2014, which was also dismissed by the Additional District Judge, Court No. 12, Agra, vide judgment and decree dated 24.4.2018.
3. Now the plaintiff- appellant is before this court by means of this Second Appeal.
4. Heard learned counsel for the appellant on the point of admission. Perused the record.
5. Learned counsel for the appellant has challenged the legality and correctness of the judgments and decrees passed by both the courts below mainly on the grounds that both the courts below have passed the impugned judgments without appreciating the evidence on record properly. Both the courts below have not taken into consideration the fact that the Advocate Commissioner's report was prepared in collusion with the defendants- respondents and relying on the Advocate Commissioner's report the impugned judgments and decrees have been passed, despite the fact that the Advocate Commissioner was not even examined in the trial court to prove the report.
6. The brief facts giving rise to the dispute between the parties are that the plaintiff- appellant filed Original Suit No. 43 of 2010, Shiv Dayal Varshney Vs. Smt. Anuma Lawaniya and others, seeking permanent prohibitory injunction restraining the defendants- respondents from causing hindrance in the peaceful possession, use and enjoyment by the plaintiff of the property in suit, by way of raising any sort of construction there upon, by including the same in their property, by closing the only entrance of the plaintiff's house or by transferring, selling or alienating the same to any person in any manner whatsoever.
7. According to the plaint averments, towards the western side of the plaintiff's house and northern side of the house of defendant nos. 1 and 2 there exists a four feet wide Gali, which is left for the purposes of egress and ingress from their houses. The defendants want to usurp the said four feet wide Gali illegally and without any right, title or interest. The defendants are neither the owners nor in possession, nor the plaintiff has ever sold or transferred the Gali to them. The disputed Gali is the only source of ingress and egress of the house of the plaintiff and except the same there is no other passage for coming out and going inside the house of the plaintiff. However, the defendants with an intention to include the Gali in their house have raised constructions on it thereby closing the entrance of the plaintiff's house.
8. An Advocate Commissioner for spot inspection was appointed by the trial court vide order dated 19.4.2010 and the Advocate Commissioner submitted his report dated 27.4.2010 along with map.
9. The plaintiff- appellant filed an objection dated 21.5.2010 against the Advocate Commissioner's report alleging therein that the Advocate Commissioner has prepared the report in collusion with the defendants and the map has been prepared according to the written statement.
10. The defendants- respondents filed written statement on 1.9.2010 denying altogether from the plaint allegations. In the written statement it was averred that there is no Gali in the north side of the house of the defendants. On the other hand, a 10 Ft. wide lane exists in the east of the house of the plaintiff and the plaintiff uses the same to go out and come inside his house. It was denied that the defendants want to raise any construction on that Gali. It was also averred that the boundaries shown in the map filed by the plaintiff do not tally with the plaint averments. There is a 30F. wide road on the western side and 10 Ft. wide lane towards eastern side of the plaintiff's house and the main door of the plaintiff's house is on the western side, which the plaintiff is using since long.
11. The learned trial court on the basis of the pleadings of the parties, framed as many as 14 issues and after a detailed discussion of the evidence led by both the parties on those issues, dismissed the plaintiff's suit.
12. In the appeal, the learned lower appellate court once again discussed the evidence in the light of the issues involved in the case and found that the plaintiff did not file any map along with the plaint whereas the defendants had filed a map with the written statement. The defendants took steps for spot inspection by an Advocate Commissioner whereas the plaintiff did nothing to prove his case. It was also found by learned lower appellate court that the report of the Advocate Commissioner and the map of the disputed property filed with the written statement corroborates each other. On the basis of the evidence led by the parties, the lower appellate court recorded a finding of fact that the main door of the house of the plaintiff is opening on the 10 Ft. wide lane. It was also found that the plaintiff has failed to prove that he has no other door for coming out and going into his house except that from the disputed 4 Ft. wide lane. The learned lower appellate court on the aforesaid grounds observed that the plaintiff/appellant has not come to the court with clean hands, therefore, he cannot be granted equitable relief of permanent injunction and accordingly dismissed the appeal filed by him.
13. Thus, on perusal of the impugned judgments it is clearly apparent that both the courts below have recorded concurrent finding relating to the factual situation of the case. The issue involved in this case is purely factual in nature. No substantial question of law is involved in the present case. Although the appellant in the memo of Second Appeal has framed as many as 15 questions depicting those as substantial questions of law but in wake of the well settled legal position, none of these questions can be termed as 'substantial questions of law', as all the questions are related only to the facts of the case.
14. The term "substantial question of law" has been interpreted by Hon'ble Supreme Court in a catena of judgments.
15. In State Bank of India and others Vs. S.N. Goyal; (2008) 8 SCC 92 the Hon'ble Supreme Court has held as under :-
"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 lis 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."
16. In the above cited case, the Hon'ble Supreme Court has also laid down some guidelines in respect of Second Appeal, which are quoted below:-
(a) The appellant should set out in the memorandum of appeal, the substantial questions of law involved in the appeal.
(b) The High Court should entertain the second appeal only if it is satisfied that the case involves a substantial question of law.
(c) While admitting or entertaining the second appeal, the High Court should formulate the substantial questions of law involved in the case.
(d) The second appeal shall be heard on the question/s of law so formulated and the respondent can submit at the hearing that the second appeal does not in fact involve any such questions of law. The Appellant cannot urge any other ground other than the substantial question of law without the leave of the court.
(e) The High Court is at liberty to reformulate the substantial questions of law or frame other substantial question of law, for reasons to be recorded and hear the parties or such reformulated or additional substantial questions of law.
It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :
(a) Admitting a second appeal when it does not give rise to a substantial question of law.
(b) Admitting second appeals without formulating substantial question of law.
(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.
(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.
(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.
(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law.
These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law."
17. In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Supreme Court considered what the phrase "substantial question of law" means as under:-
"The phrase 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 with-technical, of no substances or consequence, or academic merely."
18. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and observed:
"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."
19. The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
20. In Dharmabiri Rana Vs. Mramod Kumar Sharma (dead) through Legal Representatives and others, (2018)11 SCC 554 the Hon'ble Apex Court has observed as under:-
"12.In view of the above findings recorded by the First Appellate Court, the suit was rightly dismissed. The High Court has also rightly dismissed the Regular Second Appeal holding that it does not contain any substantial question of law. We do not find any substance in the submissions of the learned counsel for the appellant. With the result, the Civil Appeal is dismissed."
21. Now reverting to the facts of the present case, it is clearly evident that both the courts below have recorded concurrent findings of fact with regard to the issues involved in the case. There does not appear any perversity or illegality in the findings recorded by both the courts below on the facts of the case.
22. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
23. In Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
"...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law."
24. In a recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
"...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal."
25. In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
26. In view of the above cited legal position and in absence of any arguable question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date :- 26.7.2018 S.B./Pcl