JUDGMENT
S.S. Nijjar, J.
1. The appellants had filed Civil Suit No. 148 daled 23.3.1982 in the Court of Assistant Collector First Grade, Mahendergarh, claiming a declaration to the effect that they are owners in possession for the suit land compromised in Khewat No. 180 min, Khatoni No. 379 measuring 38 kanals 14 marlas, situated in village Jannt, tehsil and district Mahendergarh, prior to 26.1.1950 to the extent of l/4th share each. They are co-sharers in the shamilat deh and they are in possession of 8 bighas 14 biswas of land against their share of 11 bighas 15 biswas in shamilat deh, which is not in excess of their respective shares. They are, therefore, entitled to be declared owners in possession of the suit land.
2. The Assistant Collector, Narnaul, decided the suit on 3.3.1982 and held that the appellants are in possession of the suit land prior to 26.1.1950. However, no declaration was made to the effect that the plaintiffs are owners of the suit land as it was held that the Court of Assistant Collector First Grade, did not have the jurisdiction to grant such a declaration. The appellants were, therefore, directed to move the Court of competent jurisdiction. Thus the appellants instituted Civil Suit No. 420-A of 1991 on 31.7.1991 in the Court of Additional Civil Judge (Senior Division), Mahendergarh. The trial Court by its judgment dated 20.12,1996 decreed part of the suit holding that the appellants are in possession of the suit land and dismissed part of the suit holding that the suit land is owned by the Gram Panchayat. ft is to be noticed that the trial court had framed six issues, which are as follows:-
1. Whether the plaintiffs are owners in possession of the suit land ? OPP.
2. Whether the suit is time barred ? OPD.
3. Whether the plaintiffs have no locus standi to file the suit ? OPD.
4. Whether the suit is not maintainable in the present form ? OPD.
5. Whether the civil court has no jurisdiction to try this suit ? OPD.
6. Whether the defendants are entitled to special costs under Section 35-A ? OPD.
7. Relief.
Issue No. 5 had been framed on the plea taken by the defendants that the civil court had no jurisdiction to try the suit. However, at the final hearing of the suit issue Nos. 2 to 6 were not seriously pressed. These issues were, therefore, decided against the defendants. By implication, it can be said that the trial court has held that the Civil Court had jurisdiction to entertain the suit and adjudicate on merits on the issues raised.
3. The appellants challenged the aforesaid judgment by filing civil appeal No. 9 of 1997 on 27.1.1997, in the Court of District Judge, Namaul. Before the Lower Appellate Court, it was argued that the case of the appellants falls under exception 8 of Sub-section 2(g) of Section 2 of the Punjab village Common Lands (Regulation) Act, (hereinafter referred to as the Act). This argument was made on the basis of the finding given by the Assistant Collector First Grade, Mahendergarh, wherein it has been held that appellants are in possession of the disputed land prior to 26.1.1950, and they are in possession of 8 bighas and 14 biswas against their shares of 11 bighas 15 biswas of shamilat deh, which is not in excess of their respective shares. After considering the submissions, it has been held that the findings given by the Assistant Collector, are not sufficient to prove that the appellants were in possession of the land, which was not in excess of their shares in the shamilat deh. According to the learned Judge, it was necessary for the appellants to lead independent evidence with respect to their own shares in the proprietary rights in the whole land in the village. The appellants, according to the lower appellate Court ought to have proved the total area of shamilat deh in the village. It was further held that the order of the learned Assistant Collector First Grade, Mahendergarh, is non-speaking with regard to the total area of the shamilat deh in the village. Therefore, it could not be said as to what share the appellants had according to the proprietary rights in the whole area of the shamilat deh. Here again, no decision has been given on issue No. 5. The appeal has been dismissed.
4. Now it is the submission of the counsel for the respondents that the civil court had no jurisdiction to entertain the suit filed by the appellants. Therefore, according to the [earned counsel judgments of both the courts below are without jurisdiction, as the civil Court had no jurisdiction to entertain the suit. In the grounds of appeal, no question of law much less any substantial question of law has been formulated. The appeal proceeds on the basis that both the courts have wrongly construed section 2(g)(viii) of the Act.
5. I have considered the submissions made by the learned counsel for the parties.
6. In the peculiar circumstances of this case, this Court would have to frame the substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908, as the question of jurisdiction of the civil court to entertain and adjudicate upon the suit filed by the appellants squarely arises in the facts and circumstances of the case. In fact issue No. 5 framed by the trial Court was to the same effect. It was, however, decided against the defendants as it was not seriously pressed. In this view of mind, I am fortified by a judgment of the Hon’ble Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. – AIR 1999 Supreme Court 2213. After considering the entire matter, the Hon’ble Supreme Court has observed as under :-
After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence.
4, It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S. 100, Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st Appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no-court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd v. Century Spinning and Manufacturing Co. Ltd, AIR 1962 SC 1314 held that:-
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views, If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.”
5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of the law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application of facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere application of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramakrishan Govind Morey, AIR 1976 SC 830 held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.”
In view of the aforesaid law laid down by the Hon’ble Supreme Court, the substantial question of law arising in this case may be formulated as. to whether in view of the amendment in the Punjab Village Common Lands (Regulation) Act, 1961, Section 13 as substituted by Haryana Act 2 of 1981, the Civil Court has jurisdiction to entertain or adjudicate upon any question whether (i) any land or immovable property is or is not shamilat deh; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act.
7. The aforesaid question of law, however, in no longer res Integra, it has been already settled by a decision of this Court in the case of Lalji Singh v. Gram Sabha, Lahli, 1982 P.L.J. 140. The substituted section 13 of the Act reads as follows:-
“1-3; No Civil Court shall jurisdiction –
(a) to entertain or adjudicate upon any question whether –
(a) to entertain or adjudicate upon any question, whether any property or any right or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Acl; or
(b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat under this Act; or
(c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act determine.
8. A similar provision was introduced in the Act by the State of Punjab, 1976. The amendment has also been considered by a Division Bench of this Court in Gram Sabha, Balad Kalan v. Sarwan Singh, 1981 R.L.J. 311, wherein it has been held as follows:-
“The word “adjudicate” according to the Webster’s Dictionary means to settle judicially and according to Oxford Dictionary, to try and determine judicially. According to Black’s Law Dictionary, to adjudicate means to settle in the exercise of judicial authority or to decide judicially, it is therefore, evident that on the enactment of the said Section 13, Civil Court has been debarred from not only entertaining the suit but also from passing any judgment upon any question whether land is or is not Shamilat Deh. The conclusion is, therefore, irresistible that the civil court ceased to have jurisdiction to pass any judgment even in a pending suit on the said question. Our view finds full support from a Division Bench decision in Smt. Harbans Kaur v. Sardara Singh and others, 1973 Revenue L.R. 399, which was later on confirmed by the Supreme Court, in Amarjit Kaur v. Pritam Singh and others, 1974 P.L.J. 406. In that case, the effect of section 3 of the Punjab Pre-emption (Repeal) Act, 1973 was under consideration which reads as under;-
“On and from the date of commencement of the Punjab Pre-emption (Repeal) Act, 1973, no Court shall pass a decree in a suit for pre-emption. It was held by the Division Bench that in view of the express bar contained in this section, all pending suits whether at the stage of trial or appellate stage have to be dismissed.”
9. After noticing the decision of the Division Bench, learned Single Judge in Laljit Singh’s case (supra), has held as follow;-
“9. On the specific provision of the Act also, there are two reported decisions i.e. Chandgi v. Nihal Singh, 1979 PLJ 125 and Bara Singh v. State of Punjab, 1978 PLJ 69 in which it was held that the civil Court would cease to have jurisdiction even in pending suits to pass any judgment on the said question. However, I had expressed a different view in Gram Panchayat and another v. Balwant Kaur and Anr., 1979 PLJ 94 because this point was not specifically urged nor my attention was drawn to the said words of section 13. Now after thorough consideration of the language of section 13, 1 have no hesitation in holding that the Civil Court would cease to have jurisdiction to adjudicate upon any question relating to the Shamilat nature of the land even in pending suits after its enactment”.
10. In view of the aforesaid observations, it becomes evident that both the courts below erred in taw by entertaining and adjudicating on the merits of the issues raised in the civil suit. Had the respondents taken care to argue issue No. 5 earnestly, the whole exercise of the decision in the first appeal as also the proceedings in this court could well have been avoided. In view of the settled law, it has to be held that both the courts below did not have the jurisdiction to entertain the civil suit filed by the appellants.
11. Consequently, the Regular Second Appeal is allowed. The judgments and decrees passed by both the courts below are hereby set aside.
12. The Collector, Namaul, is now directed to reconsider the whole issue on merits
without being influenced by the observations made by the trial Court or by the lower
appellate Court, in the impugned judgments.