[2025:RJ-JP:23106] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 342/2019 1. Rajendra Prasad S/o Harprasad, Aged About 50 Years, R/o Horiyapada, Mandrayal, District Karauli (Rajasthan). 2. Radha Mohan S/o Harprasad, Aged About 47 Years, R/o Horiyapada, Mandrayal, District Karauli (Rajasthan). ----Appellants Versus 1. Gram Panchayat Mandrayal, Through Its Sarpanch, Gram Panchayat, Mandrayal, Panchayat Samiti, Sapotra, District Karauli (Rajasthan). 2. State Of Rajasthan, Through Secretary, Panchayati Raj Department, Secretariat, Jaipur. 3. Tehsildar Landholder, Tehsil Mandrayal, District Karauli. 4. Dr. Bhimrav Ambedkar Samiti, Mandrayal, Through Its President, Gulab Chand S/o Dataram, , R/o Horiyapada, Mandrayal, District Karauli. ----Respondents For Appellant(s) : Mr. Rahul Sharma for Mr. Rajneesh Gupta For Respondent(s) : Mr. Satish Kumar HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 07/05/2025 1. Instant second appeal is preferred by appellants plaintiffs aggrieved from dismissal of civil regular appeal no. 16/2017 by learned Additional District Judge, Karauli on 04.04.2019 affirming the judgment and decree dated 27.03.2017 in civil suit no. 64/2015 (174/2005) passed by learned Additional Civil Judge, Karauli. [2025:RJ-JP:23106] (2 of 8) [CSA-342/2019] 2. Learned counsel for appellant while relying upon grounds of appeal submitted that the plaintiffs have filed a civil suit about abadi land situated in khasra no. 1086 where the plaintiffs are in possession since 1991. He further submitted that the construction is raised by their predecessor-in-title after obtaining permission from Village Panchayat on 25.05.1998 and the property is purchased by registered sale deed on 24.07.1991. He further submitted that even more people were allotted patta in same khasra number but now defendant nos. 1 to 3 are trying to allot the land whereas the plaintiffs are in possession to Bheem Rao Ambedkar Park Samiti, whereas the plaintiff (appellants) are in possession on disputed property. 3. He also submitted that the trial court and the appellate court without reading the evidence on record has drawn an erroneous conclusion on analogy that appellant is an encroacher. He further submitted that if a piece of land was occupied by any person and after procuring permission from Village Panchayat, a construction is raised and subsequently been transferred then the appellant plaintiff acquires a right to continue on the said property but both the courts below have committed serious error while considering the settled possession of the appellants plaintiffs. He also submitted that the trial court considering Section 41 of Specific Relief Act has misinterpreted the provision and appellant cannot be thrown out because an alternative forum is available for him. He further submitted that if the appellants plaintiffs has two forums available to him then he has an option to choose and in that case if he has chosen civil court then the suit is maintainable [2025:RJ-JP:23106] (3 of 8) [CSA-342/2019] before the civil court. Learned counsel has further referred findings recorded by the appellate court and submitted that both the courts below have committed serious error while dismissing the case of appellant. At last, he submitted that the grounds give rise to substantial question of law as suggested in para no.15 of the memo of the appeal. 4. Aforesaid contentions were opposed by learned counsel for respondent no.4 and he submitted that the appellants plaintiffs are encroachers and they are not having any valid title document to justify their possession. He also submitted that the respondents are working in public interest and if any proposal is forwarded for allotment to a Samiti then, the plaintiffs can challenge the allotment but they cannot seek an injunction to maintain possession when they are found as encroachers. 5. Heard learned counsel for the parties and perused the record. 6. Brief facts giving rise to instant second appeal are that the appellants plaintiffs have filed a suit for declaration and permanent injunction on the ground that they are in possession of a land with construction having measurement of 40x45 feet situated in khasra no. 1086 which was purchased by them by a registered sale deed on 24.07.1991. The predecessor-in-title of appellants plaintiffs have obtained permission from Village Panchayat, Mandrayal on 25.05.1988 and raised construction. The defendant nos. 1 to 3 have proposed to allot entire land of Khasra no.1086 to Bheem Rao Ambedkar Park Samiti on 09.02.1999 and same was transferred on 25.10.1999. It gives rise to cause of [2025:RJ-JP:23106] (4 of 8) [CSA-342/2019] action and ultimately after a notice of eviction, a suit is filed by plaintiffs. After completion of pleadings, the trial court has framed nine issues but issue no.3 was deleted. Both the parties have lead oral and documentary evidence. 7. The trial court has decided issue no. 1 and 2 against the plaintiffs but decided issue nos. 4 and 5 in favour of defendants. As a result, the suit of plaintiffs was dismissed. The plaintiffs have filed first appeal under Section 96 of CPC and same was dismissed on 04.04.2019 affirming the judgment and decree of the trial court. 8. The observation of courts below clearly indicate that the village panchayat has passed a resolution and in pursuant to resolution no. 6 dated 20.04.1996, recommended for development as Bheem Rao Ambedkar Park. In pursuant to resolution, an allotment order is passed and further mutation followed. Afterwards, a notice is served upon plainitiffs for eviction. The evidence on record considered by the trial court, which also indicated that the plaintiffs have raised construction in 2006, after allotment to Bheem Rao Ambedkar Park Samiti. 9. The evidence considered by the trial court and the appellate court clearly suggested that the plaintiffs have claimed their source of title from registered sale deed dated 24.07.1991 but prior to said sale deed there is no document to show that disputed land is ever allotted to predecessor-in-title of plaintiffs. The plaintiffs have not challenged the allotment of land to Bheem Rao Ambedkar Park Samiti and moreover the development of park over the abadi land in the circumstances as mentioned by them. [2025:RJ-JP:23106] (5 of 8) [CSA-342/2019] 10. The grounds relates to factual issues and the both the courts below on the basis of evidence on record have drawn a common conclusion that there is no basis to maintain possession over the suit property, therefore, the plaintiffs have failed to prove a long and disputed possession to secure an injunction. A declaration is not possible unless there is a title in favour of plaintiffs. There is no legal issue which requires consideration by this Court. 11. Having considered the entire material on record including the grounds as raised by learned counsel for appellants, I am of the considered view that grounds does not give rise to formulate any substantial question of law, therefore, no substantial question of law arises from the grounds raised by appellants plaintiffs. 12. 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. 13. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble 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 [2025:RJ-JP:23106] (6 of 8) [CSA-342/2019] 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." 14. 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 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; [2025:RJ-JP:23106] (7 of 8) [CSA-342/2019] (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. 15. 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. [2025:RJ-JP:23106] (8 of 8) [CSA-342/2019] c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” 15. 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.” 16. In view of discussion made hereinabove, the second appeal sans merit and same is liable to be dismissed. 17. In view of above, the instant second appeal is hereby dismissed. 18. Misc. application, if any, stands disposed of. 19. No order as to cost. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /70