[2025:RJ-JP:13553] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 131/2025 Mukesh Kumar Son Of Late Durga Prasad, Aged About 58 Years, Resident Of Ward No. 01, Bandikui, Tehsil Bandikui, District Dausa. ----Appellant-Appellant Versus 1. Jagdish Prasad Son Of Narayan Das, (Since Deceased Through Legal Representatives):- 1/1. Kailash Chand Son Of Late Jagdish Prasad 1/2. Naveen Kumar Son Of Late Jagdish Prasad 1/3. Vijay Kumar Son Of Late Jagdish Prasad 1/4. Gopal Son Of Late Jagdish Prasad 1/5. Smt. Krishna Wife Of Jagdish Prasad 1/6. Anita Daughter Of Late Jagdish Prasad 1/7. Sunita Daughte Of Late Jagdish Prasad All Resident Of Balaji Temple, Bandikui, Tehsil Bandikui, District Dausa. 2. Mohan Lal Son Of Durga Prasad, (Since Deceased Through Legal Representatives):- 2/1. Smt. Rekha Wife Of Mohanlal, (Name Deleted Date 20- 03-2024) 2/2. Kajal Daughter Of Late Mohan Lal, (Name Deleted Date 20-03-2024) Both Resident Of Ward No. 01, Bandikui, Tehsil Bandikui, District Dausa. ----Respondents For Appellant(s) : Mr. Abhi Goyal For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 25/02/2025 [2025:RJ-JP:13553] (2 of 8) [CSA-131/2025] 1. The instant second appeal is preferred by appellant- defendant aggrieved from dismissal of civil regular appeal No.21/2023 by learned Additional District Judge No.1, Bandikui, District Dausa on 13.11.2024 affirming judgment and decree dated 05.10.2023 in civil suit No.30/1998 passed by learned Senior Civil Judge, Bandikui, District Dausa. 2. Learned counsel for the appellant-defendant while referring the grounds of appeal have submitted that one Jagdish Prasad has filed a suit for eviction and recovery of rent against Mohan Lal and Mukesh Kumar for a property relating to Temple Balaji Maharaj situated in ward No.1 of Bandikui Municipal Area. He also submitted that the suit property is owned by deity and pujari/mahant has no right to claim said property as landlord. He also referred the findings of the Courts below and submitted that both the Courts below have committed serious error while ignoring the objections raised by appellant-defendant. He also submitted that the temple complex and the rooms in temple complex are not personal property of Pujari / Mahant Jagdish Prasad, therefore, a suit for eviction is filed without any authority. He further submitted that during pendency of civil suit original plaintiff Jagdish Prasad has expired and the trial court has substituted natural legal heirs under Order 22 Rule 3 of CPC without considering that the legal heirs are not entitled to be substituted rather the Manager/Pujari of temple is entitled to be arrayed as party. He also referred the objections raised by him and unanswered by learned trial court and appellate court and submitted that the other two persons Kailash Kumar and Kalawati were not arrayed as party defendant. [2025:RJ-JP:13553] (3 of 8) [CSA-131/2025] He also referred findings of issue No.6 related to civil suit titled as Jagdish Vs. Kailash Chand and submitted that the findings in said suit is a res-judicata in the instant case which was filed for eviction against Kailash Chand. He further submitted that instant suit was filed without any authority and without any cause of action. He further submitted that the procedure adopted by the trial court is contrary to the procedure established under the CPC. The grounds give rise to substantial questions of law as proposed in para ‘O’ of memo of appeal. 3. Heard learned counsel for the appellant and perused the material placed on record and also considered the order dated 01.06.2023 in S.B. Civil Second Appeal No.761/2011 passed by a Co-ordinate Bench of this Court with regard to operation of res judicata. 4. The brief facts giving rise to instant second appeal are that the plaintiff Jagdish has filed a suit for eviction and arrears of rent against the Mohan Lal and Mukesh Kumar. During pendency of civil suit, Jagdish Prasad and Mohan Lal have expired and their legal heirs were taken on record. A perusal of facts narrated by plaintiff clearly indicate that the property belongs to temple Balaji Maharaj and plaintiff Jagdish Prasad has filed suit as a Mahant/Pujari (manager). The plaintiff has also mentioned Kailash Chand as his tenant but herein he sought eviction of Mohan Lal and Mukesh Kumar from the suit property. Defendants have denied the averment of plaint by submitting written statement. The defendants have claimed that they are in joint possession with Kalawati and Kailash Kumar from time of their ancestor Durga [2025:RJ-JP:13553] (4 of 8) [CSA-131/2025] Prasad. The status of appellant was admitted as tenant though defendants have denied exclusive relationship of landlord and tenant with plaintiff. 5. On basis of pleadings of the parties, 13 issues were framed. Thereafter, an additional issue No.6A also framed under the direction of Appellate Court dated 11.04.2019. PW-1 Naveen Kumar examined himself in support of plaint and exhibited three documents whereas three witnesses were examined by defendants and six documents were exhibited. 6. The trial court has decided issue No.1 and 8 together and after considering the evidence in light of Section 116 of Indian Evidence Act held that there exists a relationship of landlord and tenant between the parties. These findings were upheld by learned Appellate Court. The trial court has further decided issue No.10 against the defendant and after considering the evidence of PW-1 and PW-2 observed that Kailash is an independent tenant. Thus the trial court was of the view that Kalwati and Kailash were not necessary party to decide the litigation. The admission of PW-2 Arvind Kumar also indicate that after compromise Kailash has handed over his premises to the plaintiff. 7. Here in this case, the plaintiff has filed a suit on basis of personal need and necessity and same was decreed by the trial court. The Appellate Court has also affirmed the judgment and decree. It is settled legal position that landlord is best judge to decide his requirement and the Courts have no concern to dictate the landlord as to how and when in what manner he should live. [2025:RJ-JP:13553] (5 of 8) [CSA-131/2025] 8. Otherwise also, a bona fide and personal need is a question of fact and should not be normally interfered in second appeal. The Hon’ble Supreme Court in case of Prativa Devi Vs. T.V. Krishnan : (1996) 5 SCC 353 has considered the bona fide needs of the landlord and after considering the legal position has held that the landlord is best judge of his own requirement. 9. Herein, the Courts below after considering the material on record has drawn a conclusion in favour of plaintiff. The relationship of landlord and tenant is also a question of fact and both the Courts below have recorded a concurrent finding that there exists a relationship between the parties. 10. Herein, there is no claim of defendant-appellant about the title of the property. Thus, a tenant is always remains a tenant. The applicability of Order 22 or Order 32 of CPC is a procedural issue and same does not give rise to a substantial question of law. Similarly, a case filed against Kailash Chand and admission of PW- 2 about vacation by way of compromise is not helpful to frame any substantial question of law. Section 11 of CPC in the instant case is not applicable. Thus, the ground of res judicata is not sufficient to fame any question of law. The order in case of S.B. CSA No.761/2011 is not applicable in the instant case. 11. 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. [2025:RJ-JP:13553] (6 of 8) [CSA-131/2025] 12. 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 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." 13. 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 [2025:RJ-JP:13553] (7 of 8) [CSA-131/2025] 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; (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:13553] (8 of 8) [CSA-131/2025] 14. 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.” 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 in light of legal position, I am of considered view that the grounds do not give give rise to any of substantial question of law as suggested or formulated by learned counsel for the appellant. The grounds are not sufficient to formulate any question of law. Thus, the second appeal sans merits and same is liable to be dismissed. 17. In view of aforesaid, instant second appeal is hereby dismissed with all pending application(s), if any. (ASHOK KUMAR JAIN),J MR/36