S. No. 10 Regular list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CSA 7/2017 MST. HAJARA BEGUM AND ORS …Petitioner/Appellant(s) Through: Mr. T. A. Lone, Advocate. Vs. SHEIKH ALTAF HUSSAIN AND ORS ...Respondent(s) Through: Mr. H. Aman Ali, Dy. AG. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 11.03.2025 (Oral):- 1. The instant Civil Second Appeal has been filed by the appellants herein against the Judgment and Order dated 12th July 2017 passed by the court of Principal District Judge Kupwara (for short the Appellate Court) in case titled as “Sheikh Altaf Hussain & Ors vs Mst. Hajra Begum & Ors”. 2. The facts emerging from the record would reveal that the respondents herein filed a suit for declaration and injunction before the Court of Munsiff, Kupwara in respect of land measuring 13 kanals, 10 marlas covered under survey number, 981/456 situated at Zangli Kashira Kupwara, claiming therein that the said land is owned and possessed by them and have constructed a residential house thereon besides having planted multiple trees, stating further that in order to ascertain the status of the land in question during an acquisition proceeding the plaintiffs- respondents herein approached the revenue authorities where they came to know that in respect of the land in question, out of the land in question compensation has been assessed qua the land measuring 03 kanals 10 marlas on which land Government Middle School Zangil Kashira has been established and that the defendants /respondents herein are claiming the said compensation as the land in question is claimed to have been transferred in their name, pursuant to a sale deed, and that after an inquiry, the plaintiffs-appellants herein obtained a copy of said sale deed from district record keeper of District Court Baramulla and consequently maintained the suit as it was found that the said sale deed had been got executed fraudulently by the defendants-respondents herein, with the father of the plaintiffs/appellants herein as no land was sold by the father of the plaintiffs/appellants herein to the defendants/respondents herein, but only the trees standing thereon the said land had been sold. 3. The aforesaid suit came to be filed on 9th July 2013 and came to be consequently decreed in ex-parte on 20th October 2014, aggrieved whereof, the defendants/respondents herein filed an appeal on 1st January 2015, before the Appellate court, which court in terms of the impugned judgment and order dated 12th of July 2017, reversed the ex- parte judgment and decree of the trial court and remanded the matter back to the trial court for retrial. 4. The appellants herein have challenged the impugned judgment and order in the instant appeal while invoking section 100 of the code of civil procedure and the following questions have been proposed in the memo of appeal to be the substantial questions of law:- A) The impugned order does not mention that the record of trial court has been perused. B) The lower appellate court has not perused the trial court record. C) The lower appellate court has declared the order of trial court as cryptic, but without any reason. D) The impugned order records that the main prayer of declaring sale deed null and void has not been adjudicated upon, whileas the trial court has declared the sale deed as null and void. E) The lower appellate court has observed that the trial court was required to examine the executants and marginal witnesses of sale deed and in absence trial court had to avail the other options available under law, which is not clear from impugned order. F) The impugned order observes that the trial court had to determine the possession of plaintiffs for the relief of injunction, however, the trial court has determined that the plaintiffs are in possession. G) The impugned order of the lower appellate court observes that there is no evidence as to whether the sale deed is valid or is null and void as to in what capacity the respondents are in possession, however, there is evidence before trial court. H) The impugned order reflects that there is no evidence of revenue official, however there is evidence of Patwari Halqa concerned. I) The lower appellate court has not dealt with the question of law as to whether suit is maintainable when one or two defendants are dead amongst other defendants. J) The lower appellate court has concluded that the suit does not deserve to be decreed and has declared the decree as null and void. Heard learned counsel for the parties and perused the record. 5. Before proceeding to advert to the case in hand in general and the aforesaid proposed questions in particular, it would be appropriate to refer to the ambient scope of section 100 CPC, which is reproduced as under: 100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] 6. The Apex Court in case titled as "Pankaj Bhargava and another vs. Mohinder Nath and another reported in (1991) 1 SCC 556" has held that the High Court can admit a second appeal only if it is stisfied that the case involves a substantial question of law, and though the expression "involves" suggests that such a question must arise in the case and it is necessary to decide it, yet the mere fact that such a question is raised by the appellant in the appeal does not justify the High Court to entertain the appeal unless it is actually involved in the case holding further that the word "involves" implies a considerable degree of necessity and does not mean that in certain contingencies a question of law might possibly arise. Thus, what emanates from above position and principles of law is that the existence of a substantial question of law is sine qua non for exercise of jurisdiction under Section 100 of the CPC. 7. In Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar and Ors. reported in (1999) 3 SCC 722, the Apex Court while dealing with the scope of the civil second appeals has observed that in a number of cases no efforts are made to distinguish between a question of law and a substantial question of law and in exercise of the powers under this section the findings of fact of the first appellate court are disturbed, having further observed that the conditions mentioned in the Section 100 CPC must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds for entertaining the second appeal enumerated under Section 100 CPC, in that, a second appeal can neither be decided on merely equitable grounds nor can the concurrent finding of facts however erroneous be disturbed by the High Court in exercise of power under Section 100 CPC. A reference in this regard to paragraphs 4 and 5 of the judgment supra are extracted and reproduced hereunder: 4. ... It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal : cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact This Court in Sir Chunilal V. Mehta and Sons Ltd. V. Century Spinning and Manufactuing Co. Ltd, AIR (1962) SC 1314 held that :- "The proper test for determining whether a question of law raised in the case is substantial would, in bur 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 wellsettled and there is a mere question of applying those principles or that the plea raised is palpably absurbed the question would not be a substantial question of law." 5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court . .. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. 8. Perusal of the record available on the file tend to show that the fundamental principal plea raised and urged by the plaintiffs-appellants herein before the trial court while maintaining the suit supra and calling in question the sale deed was that that land in question was never sold and that, in fact, the trees standing thereon the said land were sold and had the land being sold, the possession thereof would have been delivered to the purchasers, defendants-respondents herein as the said possession was never part with and handed over to the defendants- respondents herein as the possession of the land, in fact, remained with the plaintiffs-appellants herein. In support of the said plea, record reveals the plaintiffs-appellants had produced four witnesses in addition to the plaintiff 1, who appeared as his own witness. 9. A closer examination of the statements of the said witnesses would reveal that none of them have deposed that the sale deed in question have had been executed fraudulently or by deceitful means by the defendants-respondents herein instead, what has been stated by all the witnesses before the trial court is that the possession of the land in question continued have had been the plaintiffs-appellants herein and that the possession of the land in question was never delivered to the purchasers, defendants-respondents herein. 10. It also emerges from the record that none of the witnesses qua the sale deed, have had been examined, be it the scribe of the sale deed or else the marginal witnesses thereof. The trial court seemingly has got swayed by the statements made by the witnesses that the land is in possession of the plaintiffs-appellants herein and on the said basis alone, the trial court declared the sale deed to be as null and void, and consequently, passed an injunction decree in favor of the plaintiffs-appellants herein, and against the defendants-respondents herein. 11. Further, perusal of the record would reveal that the appellate court has taken cognizance of the said facts and has rightly observed and opined that in absence of any evidence on record, qua the validity or otherwise of the sale deed in question, the trial court could not have declared the sale deed null and void, even if the suit was being tried in ex-parte. The appellate court, thus, on the said basis cannot be said to have committed any perversity or illegality in remanding the matter back to the trial court for retrial. 12. Having regard to the aforesaid position obtaining in the matter, this court is of the considered view that no substantial question is involved for determination, in the instant appeal, much less those proposed by the plaintiffs-appellants herein in the memo of appeal. 13. Resultantly, the appeal fails and is dismissed, as a consequence, whereof impugned judgment and order of the appellate court is upheld. (JAVED IQBAL WANI) JUDGE SRINAGAR 11.03.2025 Hilal Ahmad