[2025:RJ-JP:2846] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 310/2024 Leelabai Wife Of Ganesh, Aged About 42 Years, Resident Of Bansare Ghat Ke Pass, Kailadevi, Tehsil And District Karauli (Rajasthan). ----Appellant Versus 1. Surjan Son Of Mangal, Aged About 48 Years, Resident Of Village Peetupura, Tehsil Karaul, District Karauli (Rajasthan). 2. Pawna Son Of Shankar, Aged About 31 Years, Resident Of Kailadevi, Tehsil Karauli, District Karauli (Rajasthan). 3. Meghram Son Of Khiladi, Aged About 32 Years, Resident Of Village Dhaurera, Tehsil Karauli, District Karauli (Rajasthan). 4. Akhlesh Sharma Son Of Prakash, Aged About 36 Years, Resident Of Dehmoli, Tehsil Karauli, District Karauli (Rajasthan). 5. Bablu Sharma Son Of Rajpal, Aged About 41 Years, Resident Of Dehmoli, Tehsil Karauli, District Karauli (Rajasthan). 6. Birju Son Of Managl, Aged About 52 Years, Resident Of Village Peetupura, Tehsil Karauli, District Karauli(Rajasthan). ----Respondents For Appellant(s) : Ms. Nirmala Kushwaha Mr. Ram Niwas Saini For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 20/01/2025 1. Instant second appeal is preferred by appellant plaintiff aggrieved from dismissal of civil regular appeal no. 45/2023 on [2025:RJ-JP:2846] (2 of 6) [CSA-310/2024] 11.03.2024 by learned District Judge, Karauli affirming the judgment and decree dated 04.07.2023 in civil suit no. 6/2023 passed by learned Senior Civil Judge, Karauli. 2. Learned counsel for appellant while relying upon grounds of appeal have submitted that the plaintiffs have filed a suit with relief of prohibitory injunction to protect their right of way to approach her land. She further submits that the defendants have encroached upon a government land, meant for thorough fare to the property of appellant plaintiff. She referred the findings recorded by the Courts below and submitted that both the Courts below have committed serious error and recorded finding against material evidence on record. At last, he submitted that the disputed way is only passage to approach her plot/house. 3. Heard learned counsel for appellant and perused the record summoned from the trial court. 4. Plaintiff- Leela Bai has filed a civil suit for permanent injunction before learned Senior Civil Judge against the defendants for a dispute relating to pathway of five feet marked as red colour in enclosed map Ex-1. The defendants have denied the claim and filed written statement. Learned trial court has framed three issues. The plaintiff has examined herself as PW-1 and exhibited four documents whereas on the contrary DW-1 Surjan was examined by the defendants. After considering the evidence of both the parties, the issue nos. 1 and 2 were decided against the plaintiff and as a result, the suit of plaintiff was dismissed and the appeal is preferred by the plaintiff, which was dismissed by the appellate court. [2025:RJ-JP:2846] (3 of 6) [CSA-310/2024] 5. The admission of PW-1 clearly suggests that plaintiff has failed to submit her patta to prove pathway as mentioned by her. The admission further suggested that this pathway was already closed by defendants. DW-1 Surjan has admitted construction of house of plaintiff but he denied any pathway as mentioned by plaintiff. 6. A perusal of plaint indicated that the plaintiff has filed the suit for prohibitory injunction on apprehension and threat by defendants but admission in cross-examination of plaintiff PW-1 clearly indicate that this pathway was already closed, therefore, without without seeking amendment in plaint, plaintiff is not entitled for any permanent injunction. Once the thorough fare is closed then plaintiff has no right to prohibitory injunction. 7. The plaintiff has also failed to produce any patta or map of panchayat or revenue record to show dispute piece of land as pathway. The right of easement has not been pleaded in the plaint, therefore, the issue nos. 1 and 2 were rightly decided by learned trial court. There is no perversity and illegality in findings recorded by both the Courts below. Thus, the grounds does not give rise to any substantial question of law. 8. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts. 9. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble [2025:RJ-JP:2846] (4 of 6) [CSA-310/2024] Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "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 either an open question in the sense that 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 is palpably absurd the question would not be a substantial question of law." 10. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under: 13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to [2025:RJ-JP:2846] (5 of 6) [CSA-310/2024] formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) 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. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273. 16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. [2025:RJ-JP:2846] (6 of 6) [CSA-310/2024] 11. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” 12. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” 13. Hence, the civil second appeal is hereby dismissed. 14. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /53