[2025:RJ-JP:6765] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 24/2025 Matadeen S/o Banwarilal, Aged About 67 Years, Resident Of Ward No. 12 Surajgarh Tehsil Surajgarh District Jhunjhunu (Rajasthan). ----Appellant/Plaintiff Versus 1. Mu. Lalita Shah W/o Late Shri Vimal Kumar Shah, Resident Of Surajgarh Tehsil Surajgarh District Jhunjhunu (Rajasthan) At Present Resident Of B-141 Ashok Vihar Phase-1 Delhi-52. 2. Bhupendra Shah S/o Late Shri Vimal Kumar Shah, Resident Of Surajgarh Tehsil Surajgarh District Jhunjhunu (Rajasthan) At Present Resident Of B-141 Ashok Vihar Phase-1 Delhi-52. 3. Gopal Shah S/o Late Shri Vimal Kumar Shah, Niyasi, Surajgarh Tehsil, Surajgarh District, Jhunjhunu(Rajasthan) At Present Resident Of B-141, Ashok Vihar Phase-1, Delhi-52. 4. Suresh Kumar Shah S/o Keshardev Shah, Aged About 74 Years, Resident Of Surajgarh Tehsil Surajgarh District Jhunjhunu (Rajasthan) At Present Resident Of B-141 Ashok Vihar Phase-1 Delhi-52. 5. Mahesh Kumar Shah S/o Keshardev Shah, Aged About 70 Years, Resident Of Surajgarh Tehsil, Surajgarh District, Jhunjhunu(Rajasthan) At Present Resident Of B-141, Ashok Vihar Phase-1, Delhi-52. 6. Naresh Kumar S/o Shyam Sundar, Aged About 35 Years, Resident Of Ward No. 6, Surajgarh Tehsil Surajgarh District Jhunjhunu(Raj.). 7. Radhe Shyam Bakolia S/o Paliram, Aged About 50 Years, Resident Of Ward No. 16, Surajgarh Tehsil, Surajgarh District, Jhunjhunu(Rajasthan). 8. Shiv Kumar Soni S/o Gajanand Soni, Aged About 50 Years, Resident Of Ward No. 11, Surajgarh Tehsil, Surajgarh District Jhunjhunu (Rajasthan). 9. Madhukar Shyam S/o S.r. Premi, Aged About 11 Years, Minor Through Natural Birth Mother Smt. Indra Devi Wife [2025:RJ-JP:6765] (2 of 9) [CSA-24/2025] Of S.r. Premi, Age 50 Years Resident Of Kasani Tehsil Surajgarh District Jhunjhunu(Rajasthan). ----Respondents/Defendants For Appellant(s) : Mr. Brij Bhushan Ojha For Respondent(s) : Mr. Vinod Kumar Tamoliya HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 03/02/2025 1. The instant second appeal is preferred by appellant-plaintiff aggrieved from dismissal of civil regular appeal No.16/2024 by learned Additional District Judge, Chirawa, District Jhunjhunu on 27.11.2024 affirming the judgment and decree dated 27.08.2024 in civil suit No.4/2022 (69/2015) passed by learned Civil Judge Surajgarh, District Jhunjhunu. 2. Learned counsel for the appellant while relying upon grounds of appeal would submit that appellant plaintiff has filed a suit for permanent injunction against forceful dispossession of plaintiff from suit property. He submits that the plaintiff has already paid updated rent but defendants in collusion with anti-social elements are trying to disturb the peaceful possession of the plaintiff. He further submits that the suit property has changed hands on 04.11.2015 and subsequent purchaser has sent a notice to the plaintiff. Therefore, the plaintiff has filed a suit for protection from forcible dispossession. He submitted that defendants have filed a counter claim and the trial Court while dismissing the suit of the plaintiff has allowed the counter claim of defendants. He further submitted that aggrieved from the judgment and decree of [2025:RJ-JP:6765] (3 of 9) [CSA-24/2025] dismissal of civil suit and acceptance of counter claim, an appeal was preferred but same was dismissed on erroneous grounds by the Appellate Court. He further referred the grounds and the material on record and submitted that plaintiff has submitted both oral and documentary evidence to establish his tenancy and possession but both trial Court and the Appellate Court have committed serious error while not considering the evidence of appellant-plaintiff. At last, he submitted that he suggested few substantial question of law for consideration. 3. Aforesaid contentions were opposed by learned counsel for the respondent No.8 Shiv Kumar as caveator. Learned counsel submits that after judgment and decree dated 27.08.2024 in counter claim and affirmation by Appellate Court on 27.11.2024, the possession of suit property was already procured by decree holder respondents and nothing survives for adjudication. He also submitted that the possession of plaintiff was not in accordance with law and plaintiff in order to restrain decree holder defendants has filed a frivolous and vexatious suit which was dismissed after full trial. 4. Heard learned counsel for the parties and perused the material placed on record. 5. Brief facts giving rise to the instant second appeal are that appellant-plaintiff filed a civil suit for permanent injunction with prayer of protection from forcibly dispossession, except by adopting a due process of law on the ground that plaintiff is a tenant from 27.02.2002 at monthly rent of ₹2000/- per month and he paid entire rent upto 27.10.2015, including electricity and [2025:RJ-JP:6765] (4 of 9) [CSA-24/2025] water charges. On threat to dispossess forcibly without adopting a due process, plaintiff has filed a civil suit. The defendants have denied the averments made by plaintiff but filed a counter claim. Learned trial Court has framed 6 issues, on basis of pleadings of the parties. The plaintiff has examined 3 witnesses and exhibited 103 documents. The defendants have examined 2 witnesses and exhibited 14 documents. Learned trial Court has decided issue Nos.1, 3 and 4 against the plaintiff but decided issue No.2 and 4A in favour of defendants. As a result, the suit of plaintiff was dismissed but counter claim was allowed and three months time was granted to the plaintiff to hand over vacant possession of suit property to the defendants. 6. While considering appeal on 10.01.2025, the counsel for respondent No.8 has made a statement that decree holder- respondents have procured the possession of suit property from appellant-plaintiff (judgment debtor in counter claim) by adopting due process. 7. A perusal of plaint and relief claimed by plaintiff clearly indicated that the plaintiff has claimed protection against dispossession and for adoption of due process of law while eviction from suit property. A perusal of judgment and decree dated 27.08.2024 clearly reflect that a counter claim was allowed and 3 months time was granted to hand over possession of suit property. An appeal filed under Section 96 of CPC by plaintiff was dismissed by the appellate Court. The statement made by the counsel for the respondent No.8 also indicated that in pursuance of judgment and [2025:RJ-JP:6765] (5 of 9) [CSA-24/2025] decree dated 27.08.2024, possession of suit property was procured by the plaintiff. 8. Aforesaid clearly indicates that plaintiff has filed a civil suit in year 2015 for protection and adoption of due process of law. The defendants have filed a counter claim for dispossession of plaintiff and after decree of counter claim, the plaintiff was dispossessed. The sequence of events as mentioned hereinabove clearly indicates that the plaintiff was dispossessed after adopting a due process. Therefore, the prayer of plaintiff does not survive in such circumstances. 9. Otherwise also, if plaintiff was dispossessed without adopting a due process then he is at option to file a suit under Section 6 of Specific Relief Act against dispossession. The question of fact as decided by learned trial court was affirmed by the first appellate court. 10. Herein, facts indicated that the plaintiff has claimed settled possession and trial Court was of the opinion that plaintiff has failed to establish that he was tenant in the suit property. Herein, the trial Court has considered oral and documentary evidence filed by both the parties and drawn a conclusion that the plaintiff was not in possession as a tenant, so he is not entitled for protection. 11. A question of possession and right of tenancy is a question of fact and on both the issues there is a concurrent finding. A three Judges Bench of Hon’ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria (Dead) through L.Rs : (2012) 5 SCC 370 while considering the rights of a party claiming to be in possession viz- [2025:RJ-JP:6765] (6 of 9) [CSA-24/2025] a-viz claiming to be in possession has crystallized principle of law in following manner:- “101. Principles of law which emerge in this case are crystallized as under:- 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The· caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession” 12. In view of aforesaid, the trial Court has opined that there exists no relationship of landlord and tenant, between plaintiff and defendants. The possession of plaintiff was not found proved as tenant and he was not found entitled for any injunction, in protective nature. 13. Aforesaid material clearly indicated that grounds does not give rise to any of the substantial questions of law, which requires consideration of this Court. Herein, there is no perversity or illegality or findings against the record, therefore, there is no scope to entertain instant second appeal. 14. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a [2025:RJ-JP:6765] (7 of 9) [CSA-24/2025] 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. 15. 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." 16. 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 [2025:RJ-JP:6765] (8 of 9) [CSA-24/2025] 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; (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. [2025:RJ-JP:6765] (9 of 9) [CSA-24/2025] 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. 17. 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.” 18. 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.” 19. In view of aforesaid, the instant civil second appeal is hereby dismissed with pending application(s), if any. (ASHOK KUMAR JAIN),J MR/40