GOPAL Vs. RAGHUVEER

JUDGEMENT

(1.) THE defendant appellant has filed this second appeal under Section 100 of the Code of Civil Procedure (for short, `the C. P. C. ') against the judgment and decree dated 18. 4. 1984 passed by the Additional District Judge No. 1 Bharatpur, whereby he dismissed the appeal of the defendant- appellant and affirmed the judgment and decree dated 11. 1. 1983 passed by the Munsiff & Judicial Magistrate, Weir, District Bharatpur, in Civil Suit No. 56/1976, whereby the suit of the plaintiff-respondent for declaration and permanent injunction was decreed.

(2.) THIS Court, while admitting the second appeal on 7th of August, 1984, formulated the following questions of law:- " 1. Because the learned Court below made a mistake of law and gave perverse finding that since defendant could not prove that Bhoti had any other house in Helna, except the house in question, therefore, it is fully proved that the Gharghuda in the alleged will was in respect of the house in question. 2. Whether in a suit for declaration and permanent injunction relief of the possession could be given without averment in the plaint?"

(3.) LEARNED counsel for the plaintiff-respondent contended that the suit of the plaintiff for declaration and permanent injunction has been decreed by the lower court as well as the lower appellate Court, both, and all the substantial questions framed in the present case are relating to question of facts and both the courts below have recorded a concurrent finding of facts in favour of plaintiff and against defendant and it is a settled proposition of law that this Court in second appeal under Section 100 of the CPC cannot interfere in the finding of fact and as such the present second appeal is, therefore, liable to be dismissed. He further contended that so far as the substantial questions of law formulated by this Court on 7. 8. 1984 is concerned, the same were formulated ex-parte without hearing the plaintiff-respondent. The questions formulated by this Court, as reproduced above, go to show that they are relating to questions of fact and there is concurrent finding in this regard by both the courts below. He further contended that in case the questions of law are formulated in absence of the plaintiff-respondent, in that event the plaintiff-respondent has every right to contend before this Court at any subsequent stage or at the time of hearing of the case that particular substantial question of law formulated cannot be said to be a substantial question of law and there is no need to decide the same.