[2026:RJ-JP:12800] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 65/1998 Rameshwar Prasad S/o Shri Meetha Lal (Now Deceased) 1/1 Hemraj S/o Shri Rameshwar Prasad, R/o Khirni, Tehsil Boli, District Sawai Madhopur. ----Appellant-Plaintiff Versus Satya Narain S/o Shri Hazari Lal, Khirni, Teh. Boli, Distt. Sawai Madhopur ----Respondent-Defendant For Appellant(s) : Mr. Aditya Goyal, Mr. Ajay Singh Rajawat for Mr. N.K. Maloo, Sr. Adv. For Respondent(s) : None Present HON'BLE MR. JUSTICE SUDESH BANSAL Order 27/03/2026 1. Appellant is plaintiff, who has preferred this Civil Second Appeal under Section 100 of CPC, against the judgment and decree dated 29.11.1997, dismissing Civil First Appeal No. 26/1994 passed by the Court of District & Sessions Judge, Sawai Madhopur, affirming the judgment and decree dated 17.05.1994, whereby the Civil Suit No.24/1993 for declaration and permanent injunction has been dismissed by the Court of Munsif and Judicial Magistrate, Bonli. 2. Instant appeal was admitted for hearing vide order dated 21.01.2000, to consider the following substantial questions of law:- “1) Whether only because of possession of separate portions of house, the Courts below could validly presume prior partition although there is no direct evidence for the same? [2026:RJ-JP:12800] (2 of 7) [CSA-65/1998] 2) Whether the documents Exh Annexure-2 to Annexure-6 could be read against the plaintiffs even though they were not put to them in evidence? 3) Whether the finding of the First Appellate Court are vitiated because neither oral or documentary evidence has been discussed by it?” 3. In order to appreciate the substantial questions of law, referred hereinabove, the factual matrix of appeal, in brief, is that appellant filed a civil suit way back on 17.04.1979, alleging that on 12.04.1979, defendants, all of sudden, broke a wall and by covering 1.5 feet excess area of common chowk started to raise their own wall, hence, a prayer was made to demolish the wall and restrain defendants by way of permanent injunction, to not raise any construction over the common chowk. Plaintiffs’ suit has been dismissed on merits vide judgment dated 17.05.1994 whereagainst Civil First Appeal filed by them, too has been dismissed on merits vide judgment dated 29.11.1997, hence, this second appeal. 4. We have heard counsel for appellant and perused the material available on record. 5. As far as substantial question of law No.1, referred hereinabove, is concerned, same do not arise at all in this appeal, since it is not the case of appellant that the properties between them were never divided. The appellant came up with a case, averring that the chowk was common. His case is that in the common chowk, after breaking the pre-existing wall by defendants, he has exceeded 1.5 feet area. This factual dispute has been adjudicated by the trial Court as well as by the First Appellate Court as per respective oral and documentary evidence of both parties. The factum that both parties have independent [2026:RJ-JP:12800] (3 of 7) [CSA-65/1998] and settled possession since 1959 onwards, is not an undisputed fact, therefore, in light of the dispute raised by plaintiff in the plaint and prayer made therein, same does not attract this substantial question of law for adjudication herein. Accordingly, the substantial question of law No.1 is decided in negative and the against appellant. 6. As far as substantial question of law No.2 is concerned, on perusal of documents exhibited as Exhibit-A2 to A6 produced by plaintiffs in the evidence, it has come on record that document Exhibit-A6 is a compromise scribed by one Kistur Chand and bears signature of plaintiff No.2 Rameshwar Prasad as well. These documents have been exhibited by defendant Satya Narayan as DW-1, who has been cross-examined by plaintiffs. The scriber of document Kistur Chand has appeared as DW-2. One of the witnesses of document i.e. Radhey Shyam has appeared as DW-4. In this way, documents Exhibit-A2 to A6 have been proved by the defendants and onus to disprove these documents shifts upon the plaintiffs. It was for the plaintiffs to produce evidence in rebuttal or to question admissibility, legality and validity of these documents. It appears that, even plaintiff No.2 has not questioned the genuineness of his signatures, which finds its place on the compromise Exhibit-A6 marked from I to J. Therefore, once the execution of documents have been proved by defendants and the onus has not been discharged by the plaintiff in their rebuttal evidence, it may not be held that these documents cannot be read in favour of defendants, merely because the documents were not put by the defendants in cross-examination to plaintiffs. [2026:RJ-JP:12800] (4 of 7) [CSA-65/1998] In light of the above discussion, the substantial question of law No.2 deserves to be decided against the appellant. 7. Coming to the substantial question of law No.3, the First Appellate Court has affirmed the fact findings of the trial Court. The oral and documentary evidence of both parties have elaborately been appreciated by the trial Court. The First Appellate Court has considered the evidence afresh and has relied upon the compromise Exhibit-A6. In addition, the First Appellate Court has also taken into consideration that permission for construction to the parties were accorded by the Gram Panchayat way back in the year 1959, then in the year 1972 and lastly in 1978. 8. Having adverted to the findings recorded by the First Appellate Court, affirming the fact findings of the trial Court, it may not be said that the First Appellate Court has affirmed the findings without appreciating/considering the oral and documentary evidences of parties. For such reason, substantial question No.3 also deserves to be decided in negative and against the appellant. 9. In Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179] the Supreme Court held in Para No. 15, as under:- "15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to [2026:RJ-JP:12800] (5 of 7) [CSA-65/1998] reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is -- and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different [2026:RJ-JP:12800] (6 of 7) [CSA-65/1998] finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code." (underline supplied) 10. The Hon’ble Supreme Court in case of State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Apex Court held as under: “When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]” 11. The Hon’ble Supreme Court in case C. Doddanarayan Reddy vs. 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. [2026:RJ-JP:12800] (7 of 7) [CSA-65/1998] 12. Counsel for appellant, apart from arguing on the questions of law, already famed and decided hereinabove, has not pointed out involvement of any other additional substantial question of law in this appeal. 13. It is trite law that involvement of substantial question is sine qua non to exercise the jurisdiction by the High Court under Section 100 of CPC. Since the substantial questions of law, as referred hereinabove, do not arise in this second appeal and have been adjudicated against the appellant, the second appeal deserves to be dismissed. 14. As a final result, second appeal is hereby dismissed. 15. Record of the Court below be sent back. 16. All pending application(s), if any, stand disposed of. (SUDESH BANSAL),J NITIN /6