SURAM SINGH Vs. LAL CHAND
LAWS(J&K)-1986-7-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 18,1986

Suram Singh Appellant
VERSUS
LAL CHAND Respondents

JUDGEMENT

- (1.) BY means of this second appeal the appellants have raised amongst others the following questions of law: a) Whether the entries in record of rights can be disturbed, amended or ignored after 45/46 years when mutation was attested in favour of an innividual by the concerned revenue authorities. b) Whether civil court can grant a decree declaring joint possession of land despite specific bar created by section 19 of the. Agrarian Reforms Act, 1976. 3; Whether court can ignore framing of material issues effecting rights of the parties despite specific pleadings as particularly in this case no hsue pertaining to limitation was framed de -piie pleding , and 4) Whether a person born posthumously is entitled to get the benefit of the presumption of i. legitimacy,
(2.) MR . A. V. Gupta learned counsel appearing for the respondents has stated that even though the questions raised by the appellants are questions of law yet they are not substantial questions of law as contemplated by section 100 CPC. It is further submitted that the questions of law formulated by the appellants do not realiy arise between the parties on the basis of the pleadings and that the pleas not raised in the lower courts cannot be permitted to be raised in the second appeal for the first time.
(3.) I have heard tne learned counsel for the parties and have perused the record, Mr. Gupta wants this court to hold that the substantial question of law as contemplated by the provisions of section 100 CPC is that question of law which is contemplated by the provisions of section 110 of CPC and Art. 133 of the constitution of India. Further elaborating his argument he has submitted that if a question of law even though substantial determines the right of the parties inter -see only the High Court should not entertain the second appeal. Second appeal can be admitted only if the substantial question of law involved is also of general public importance. He has ralied upon AIR 1962 SC 1314 and submitted that the appeal filed by the appellants should be dismissed on this ground alone. I do not agree with the contention of Mr Gupta firstly because the Supreme Court was considering the case for granting special leave to appeal in terms of section 110 CPC and Art 133 of the constitution of India and secondly that the Supreme Court has not laid down the preposition of law so generally as has been argued. While dealing with the view taken by Madras, Bombay and Nagpur High Courts, the Supreme Court has held "the proper test for determining whether a question of law reised is the 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 finally settled by this court or by the Privey Council or by the Fedral court or is not free from difficulty or close for discussion of alternative view." In that case the question involved pertained to the construction of the managing agency agreement executed between the parties and the Supreme Court held that the same question was not only but was also neither simple nor free from doubt. Under the cir -cumstances the Supreme Court held that the question raised was a substantial question of law and that the High Court had committed an error in refusing to grant the certificate to the appellant. The Supreme Court elaborating further held that it has to be borne in mind that upon the success or the failure of the parties, they stand to succeed or fail with respect to their claim for nearly rupees twenty lakhs. It was held in AIR 1952 Madn. B 149 (FB) "that in order that a point be a substantial question of law it should be such as to impress the High Court that it is debatable in view of the authorities or that the authorities themselves may require reconsideration. "The Supreme Court in AIR 1953 SC 521 held that the words "Substantial questions of law" mean a substantial question of law as between the parties in the case involved and not merely a question of general importance. The question of law is substantial as between the parties if the decision turns one way or another on the particular view of the law. The privy Council in AIR 1945 PC 35 held that" misconstuing of evidence and coming without evidence amounted to substantial question of law. It is therefore clear that if a question of law finally determines the rights between the parties and is debatable in view of the authorities or that the authorities require reconsideration or the judgment has been passed completely ignoring the evidence of the parties or that the judgment has not taken into account the statutory provi.ions of the settled preposition of law or that there was lack of jurisdiction in the court deciding the rights of the parties or when the rights of the parties are directly and substantially affected on a point of law not finally settled by the High Court, the privy council, Fedral court or the Supreme Court or that the judgment has been passed completely ignoring the pleadings of the parties, would be "substantial questions of law" for the purpose of section 100 CPC irrespective of the fact that the said substantial question of law is not of general public importance. In view of this preposition of law, so far as the questions of law raised by the appellants are concerned I am of the opinion that none of them is a substantial question of law, within the meaning of section 100 C.P.C. The entries made in the revenue record are not the conclusive proof of ownership and the mutation attested in favour of any one of the parties does not confer any absolute right upon the said party. It was held in AIR 1926 PC 100 that mutation is only a fiscal entry which does not confer any prop ietory right on any person. Similarly the question regarding the applicability of the Agrarian Reforms Act cannot be treated to be a question of law much less a substantial question of law because the same did not arise out of the pleadings of the parties. The said question was never agitated by the appellant in the court below, either in the memo of appeal or at the time of arguments. So far as the framing of issue of plea of limitation is concerned I do not feel that it is a substantial question of law because the appellants did not feel aggrieved of non framing of the issue of limitation either in the trial court or in the first appellate court, Otherwise also in a case where joint possession was claimed, there was no question of plaint being barred by limitation as possession of one joint owner is deemed to be the possession of other joint owner. The other points raised by the appellants in the case regarding the legitimacy of the appellants are purely questions of fact which are concluded by concurrent finding of the courts below and cannot be interfered with in the second appeal. For all these reasons there is no merit in the appeal which is dismissed in limine.;


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