JUDGMENT
Sunil Ambwani, J.
1. This plaintiff’s second appeal admitted on 4.2.1980 without framing any substantial question of law arises out of O.S. No. 39 of 1978 between Raghu Raj Singh v. Idu Khan for permanent injunction restraining the defendants from interfering in plaintiff’s possession and user over the disputed land. The suit was decreed by the trial court on 8.7.1978. The Civil Appeal No. 28 of 1979 was allowed on 7.12.1979 and the suit was dismissed.
2. Brief facts as set out in the plaint are that the plaintiff claimed to be the owner of the house situated on the land shown in the plaint map by the letters ‘ABCD’. The house had fallen to ruins. When the plaintiff started making construction, after demolishing the wall towards the north-west portion of the land, and started constructing the house, the defendants raised objections. The defendant and his brothers demolished the constructions on 14.11.1976, made the opening in the wall to pass through, and interfered in the possession of the plaintiff over the land. The defendants had an opening of their house towards the road situate in the east of their house and have no concern and right to open the door and pass through the plaintiffs’ land.
3. The defendants denied the plaint allegations and alleged that the plaintiffs are not in possession of the disputed land. It is an appurtenant ( agga land) to their house since before the abolition of zamindari, and that their ancestors were in possession of this land. The defendants also pleaded that their door is as old as their house and that the suit is barred by limitation, as the plaintiff has not been in possession over the disputed land within 12 years of the filing of the suit. In the alternative the defendants pleaded to have matured their title by adverse possession over the disputed land.
4. The Trial Court held that the plaintiff is owner, and in possession of the disputed land, and that the defendants have opened a new door. It further held that the suit is not barred by limitation and that the defendant is not in adverse possession of the disputed land. The suit was thus decreed against the defendant.
5. The appellate court found that the geographical position of the disputed land does not established that it is ‘agga’ land of the defendants’ house as it falls in front of the house of the defendant and his brother. The plaintiff has not given any cogent evidence that his house existed on the disputed land. There is no evidence to show that the plaintiff or his ancestors ever constructed house on the disputed land and that the house had fallen down. The plaintiff did not construct any boundary wall to enclose the land. The receipt (paper No. 29 C) filed by the plaintiff to prove that he had taken the land from the zamindar’s son does not disclose the plaintiff’s father name. Paper No. 27 C, copy of the khatauni, shows the plaintiff’s father’s name as Jog Singh son of Sri Kishan Singh, whereas in paper No. 29 C plaintiff’s father name is mentioned as Jog Singh son of Sri Kasturi Singh. Further paper No. 29 C is not a patta but only receipt of Rs. 1.25/-. The Court Commissioner did not find any sign of ruins of the house or any old foundation. The plaintiff has not given plot number of the disputed land. The receipt paper No. 29 C shows that the plot No. 343 was given to plaintiff whereas the lekhpal, produced by the plaintiff, as witnessstated that the house is situated in plot No. 256.
6. The appellate court further held that though paper 18 C filed by the appellant shows that patta No. 7 was given by Zamindar, which included plot No. 343, the plaintiff did not mention the plot number and that he had taken land from the Zamindar in his plaint. The disputed land is 31 ft x 32 ft and is surrounded by three sides by Gaon Sabha land, and that on the other side the defendants have their land. The plaintiffs’ admittedly have got another residential house in the village at some other place. The appellate court thus concluded that the land belongs to Gaon Sabha and is in fact appurtenant to defendants’ house. Regarding possession, the appellate court recorded findings that there is no cogent evidence to show that the plaintiffs were in possession of the house within 12 years of the filing of the suit. The plaintiff thus failed to prove their title and possession, The appeal was allowed and the suit was dismissed.
7. This Court did not frame any substantial question of law at the time when the appeal was admitted. The substantial questions of law framed in the memo of appeal are not such questions which are either debatable or have not been previously settled.
8. Section 100 of Code of Civil Procedure was amended by Section 37 of Act No. 104 of 1976 which came into effect from 1.2.1977. The amended code provids for a Second Appeal to the High Court from every decree passed in appeal, by any court subordinate to the Court, only if the High Court is satisfied that the case involves a substantial question of law. The memorandum of appeal under Sub-section (3) is required to precisely state the substantial question of law involved in the appeal. The High Court under Sub-section (4) if satisfied ,that a substantial question of law is involved in the case, shall formulate the question. Further Sub-section (5) mandates that the appeal shall be heard on the question so formulated, and the respondents shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The proviso, however, reaffirms the powers of the Court, to hear, for reasons to to recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied, that the case involves such question. The High Court, however, must record reasons for formulating such question at the stage of hearing.
9. In Govindarau v. Mariamman , the Supreme court held that the substantial question of law is ‘sine qua non’ for exercise of jurisdiction under Section 100 of the ‘CPC and relied upon the judgements in Kshitish Chandra Purkait v. Sandosh Kumar Purkait ; Panchugopal Barua v. Umesh Chandra Goswami ; Kondiba Dagadu Kadam v. Savitribai Sapan Gujar , and traced out the background and reasons for adding such on restriction in Section 100 CPC. It referred to Santosh Hazari v. Purushottam Tiwari , in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of Section 100 was referred, to and the meaning of ‘Substantial question of law is explained as follows
14. As to which would constitute a substantial question of law. it was observed: (SCC pp. 187-88, para 14)
14. 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, insofar 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.
10. The judgement was followed in Thiagrajan v. Shri Venugopalaswamy B. Coil . In Phool Patta v. Vishwanath Singh , the Supreme Court held that the High Court could have heard the second appeal on any question not formulated by it, only after formulating such question, for reasons to be recorded, and not otherwise.
11. The question framed in the memo of appeal as to whether on proof of title, the lower appellate court could have dismissed the suit; whether the lower appellate court could dismiss the suit for want of a survey commission, when there existed evidence of lekhpal measuring plot concerned; and whether the suit could have been dismissed on the plea of merit, on proof of possession within 12 years of the suit when the suit was based on title and Article 65 of the Limitation Act applied , are not such questions which fall within the meaning of substantial questions of law. Further 1 find, that it is not necessary to examine these questions, even for a just and proper decision of the case.
12. Sri A.N. Bhargava, learned Counsel for the appellant has relied upon Madhusudan Das v. Narayani Bai A.I.R. SC 114 (para 8) in which the Supreme Court observed that when there is conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail. The citation, in my opinion, is not relevant to the present case inasmuch as there is no conflict of oral evidence in the present case. The plaintiff failed to prove his title and possession over the land.
13. The Second Appeal is, accordingly, dismissed with costs.
