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Municipal Council, Sikar v/s Sayed Mohammad Iqbal & Others

    Civil Second Appeal No. 198 of 2011

    Decided On, 04 May 2011

    At, High Court of Rajasthan


    For the Appellant: K.N. Gupta, Advocate. For the Respondents: --------

Judgment Text

1. Heard learned counsel for the appellant.

2. Plaintiff-respondents No.1 and 2 filed a suit for permanent injunction in respect of disputed property, which was decreed by the trial court. Being aggrieved with the same, defendant No.1 preferred an appeal, which was dismissed by first appellate court vide judgment and decree dated 2nd February, 2007. Being aggrieved with the same, the defendant No.1 has preferred this second appeal.

3. Submission of the learned counsel for the appellant is that both the courts below committed illegality in passing a decree of permanent injunction as plaintiffs were raising construction over the land belonging to public chowk.

4. I have considered the submission of learned counsel for appellant in the light of finding recorded by both the Courts below.

5. Trial court while decreeing the suit has observed that defendant No.1 as well as defendant No.2 did not file written statement, nor they have produced any evidence. Trial court after appreciating plaintiffs' evidence and considering other circumstances of the case, recorded a finding that plaintiffs have not raised any construction over land belonging to public chowk, the constructions raised by them are on the land belonging to them. The finding of learned trial court has been affirmed by the first appellate court also.

6. During the course of arguments, the learned counsel for the appellant was asked to show any finding of any court below or from any document, which is in his possession, to the effect that plaintiffs are raising constructions over land belonging to public chowk, but he is unable to satisfy this Court that constructions raised by plaintiffs are in the land belonging to public chowk. Learned counsel for the appellant is unable to point out any illegality or perversity in the finding of both the courts below so as to interfere with the same.

7. The controversial issue involved in the present appeal is relating to question of facts and there is concurrent finding of facts by both the Courts below, which cannot be interferred with by this Court in second appeal under Section 100 CPC.

8. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram v. Ameerchand, (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:

"......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law."

9. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:

"......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. ....."

10. The Hon'ble Supreme Court in Gurdev Kaur and Others v. Kaki and Others, (2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:

"81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.<

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br /> 82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs." 11. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine. Appeal dismissed.

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