[2025:RJ-JP:43533] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 100/2024 Shri Chand S/o Moolchand, Aged About 82 Years, R/o Govindgarh, Tehsil Laxmangarh, District Alwar. ----Appellant Versus Pooran S/o Gujarmal, R/o Govindgarh, Tehsil Laxmangarh, District Alwar. ----Respondent For Appellant(s) : Mr. Manu Bhargava Mr. Gajendra Singh Rathore For Respondent(s) : Mr. Aatish Jain HON'BLE MR. JUSTICE SUDESH BANSAL Order 30/10/2025 1. This is plaintiff's Civil Second Appeal under Section 100 CPC. Plaintiff’s suit in respect of 4 feet wide Gali, existing between houses of plaintiff and defendant, has been decreed and defendant has been restrained from obstructing the use and access of plaintiff in this Gali. However, plaintiff’s prayer for issuance of mandatory injunction, to remove a small construction of boundary wall up to 2 feet height marked as ‘d ls [k’ in the map appended with the plaint, has been rejected vide judgment dated 03.08.2019 passed in Civil Suit No.59/2007 (CIS No.164/2014) by Civil Judge, Laxmangarh, District Alwar whereagainst plaintiff’s First Appeal has been dismissed on merits vide judgment dated 28.11.2023 by Additional District Judge, Laxmangarh, District Alwar, hence this Second Appeal. [2025:RJ-JP:43533] (2 of 5) [CSA-100/2024] 2. The issue in the present Second Appeal is within the narrow compass and revolves only in respect of dismissal of plaintiff’s suit for mandatory injunction to remove a pakka barricade marked ‘d ls [k’ in the map erected by defendant in the Gali in question. 3. In respect of this barricade in question, both the courts below have concurrently held and observed on the strength of document Ex.A/1 and A/4 that this small barricade was erected by defendant, in pursuance of a decision by the Panch Faisla dated 31.03.2007, with the consent of plaintiff. Since outlets of plaintiff’s house have their opening in Gali in question and dirty & rainy water from such outlets flows towards defendant’s house and in this respect, quarrel ensued between the parties, hence, it was decided by Panch Faisla that defendant may erect a short boundary wall/barricade in the Gali to prevent the flow of dirty water from plaintiff’s house towards defendant’s house. Indisputably, plaintiff signed this Panch Faisla, marked as Ex.A/1. In this view, both courts have declined to issue a decree for mandatory injunction. 4. Apart from above, bare perusal of the pictures of site through photographs available on record (Ex.A/4), it prima facie appears that the Gali of 4 Feet is a Gandi Gali which has been left open for dropping dirty & rainy water etc. to be used by both the parties in order to excrete/flow of dirty water from their respective houses. This Gali is not a Gali as way/thorough. In this view, the erection of short boundary wall in form of barricade by defendant does not block the access of plaintiff in this Gali and is not prejudicial to the right and interest of plaintiff to use this Gali for dirty/rainy water from his house. [2025:RJ-JP:43533] (3 of 5) [CSA-100/2024] 5. In view of the concurrent fact findings of both Courts, in respect of erecting the disputed boundary wall pakka barricade in the Gali in question by defendant under a Panch Faisla, which was accepted by plaintiff and his signature finds place thereupon, no substantial questions of law arises in this Second Appeal. Looking to the purpose of Panch Faisla, same has rightly been held admissible in evidence. 6. The substantial questions of law, as suggested and mentioned in the memo of Second Appeal from Para Nos. 1 to 9 are virtually mixed questions of facts and law. Both Courts have appreciated the evidence of both the parties and then, have recorded a fact finding that plaintiff does not have any legal right to get a decree for mandatory injunction for removal of short boundary wall/like a barricade in the Gali in question, which does not impede the appellant from use of this Gali, for the purpose its left. 7. Thus, this Court does not find any force in the contention of counsel for the appellant and the fact findings recorded by two courts below, do not suffer from any vice of arbitrariness perversity and illegality much less jurisdictional error. 8. The scope of the High Court to grant indulgence in concurrent fact findings recorded by the two courts below, is extremely limited and confined to the existence of a substantial question of law, while exercising its power and jurisdiction under Section 100 of the CPC. In a series of decisions rendered by the Hon’ble Supreme Court, it has been categorically held as an established principle of law that the High Court is not required to re-appreciate the entire evidence on record or to come to its own [2025:RJ-JP:43533] (4 of 5) [CSA-100/2024] conclusion. The High Court cannot set aside the findings of fact recorded by the two courts below, when such findings are based on appreciation of evidence. In this regard, reference may be given to a judgment of the Hon’ble Supreme Court delivered in the case of S. Subramanian Vs. S. Ramasamy [(2019) 6 SCC 46]. The relevant portions of the judgment i.e. Paragraphs 7.4, 7.5, and 7.6, are being reproduced hereunder:- “7.4 Even otherwise, it is required to be noted that as per a catena of the decisions of this Court and even as provided under Section 100 CPC, the second appeal would be maintainable only on substantial question of law. The second appeal does not lie on question of facts or of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam' , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal. 7.5. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434]. In the aforesaid decision, this Court has specifically observed and held: "Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise." 7.6. Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be substantial questions of law.” [2025:RJ-JP:43533] (5 of 5) [CSA-100/2024] 9. The Hon’ble Supreme Court in case C. Doddanarayan Reddy v. C. Jayarama Reddy [(2020) 4 SCC 659], has observed that where two courts have reached a finding, which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC. 10. As a final result, the present second appeal is devoid of substance & merits, hence, same is hereby dismissed. No costs. 11. Record be sent back forthwith. 12. Stay application and pending application(s), if any, stand(s) disposed of. (SUDESH BANSAL),J pcg/17