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S.A. & Concurrent Finding

Justice Abhay Manohar Sapre and Justice R. Subhash Reddy, at the Supreme Court have, in the judgment of the case – State of Rajasthan & Others v. Shiv Dayal & Another, delivered on August 14, 2019, ruled that “ It is not principle of law that where the HC finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second Appeal.

It is true that it has been laid down by the Supreme Court in several judgments that “concurrent finding of fact” is usually binding on the HC while hearing the second appeal under section 100 of the Code of Civil Procedure, 1908. However, this rule of law is subject to certain well known exceptions.

It is a trite law that in order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral or documentary) in the light of the pleadings of the parties. 

Similarly, it is also a trite law that the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it.

If the Appellate Court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance.

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 de hors 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.(In this context the SC has referred to the observation made by Justice Vivian Bose as a Judge of the then Nagpur HC in the decision of the case – Rajeshwar Vishwanath Mamidwar & Others v. Dashrath Narayan Chilwelkar-AIR 1943 Nagpur 117 para 43). 

In the SC’s opinion, if any one or more ground as mentioned, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of section 100 of the CPC.

With reference to the facts of this appeal, the SC has pointed out that some questions which do arise for consideration in the suit/appeal for proper adjudication of the rights of the parties to the suit and are in the nature of substantial questions within the meaning of Section 100 of the C.P.C.

First, whether the suit land was a part of a protected Forest area, that is Forest land and, if so, whether the parties satisfied all the statutory provisions of the Forest Laws enacted by the Center and the State?         

Second, whether the suit land was a part of a Revenue land and, if so, whether the parties to the suit satisfied all the statutory provisions of the State Revenue Laws.

Third, whether a mining lease of the suit land could be granted by the State to the plaintiff for carrying out the mining operation in accordance with the provisions of the MMRD Act and, if so, whether it satisfied all the statutory provisions of the MMRD Act read with relevant Forest and Revenue Laws.

Fourth, whether a suit is hit by any provision of Forest Laws or MMRD Act or/and Revenue Laws expressly or by implication.

Lastly, whether the plaintiff on facts/evidence has proved that the suit land is a part of Revenue land and, therefore, it does not fall in the protected forest area and, if so, whether any prima facie case, balance of convenience and irreparable loss is made out for grant of permanent injunction in plaintiff’s favour?

In the Supreme Court’s opinion, all these five questions do arise in the case. As matter of fact, the suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws.

In the Apex-Court’s view, the HC, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered those on their respective merits rather than to dismiss the appeals without considering any of these questions.

These appeals were directed against the final judgment and order of March 23, 1999, passed by the Jaipur Bench of the Rajasthan High Court in three Single Bench Second Appeals (S.A.) whereby the HC dismissed the second appeals filed by the appellants herein.The appellants are the defendants and the respondent-1 is the plaintiff in the civil suit out of which these appeals arise.

The SC has stated that for the reasons mentioned, it is of the view that the interference in the impugned order is called for to enable the HC to decide the controversy in its proper perspective.

In the light of the discussion the appellants succeed and these appeals are allowed. The impugned order is set aside. The case has been remanded to the HC for deciding the second appeals afresh on merits after framing appropriate substantial questions of law(s) arising in the case.

The SC has asked the HC to frame proper questions keeping in view the pleadings, evidence and the findings of two Courts in the context of relevant provisions of the specific Forest Acts (Central and State), MMRD Act and State Revenue Laws.

However, the Court has made it clear that it has not expressed any opinion on the merits of the case having formed an opinion to remand the case to the HC for deciding afresh.

The Court has pointed out that when one legal representative of the deceased first respondent-plaintiff Shiv Dayal is already on record , the appeal would not abate and when the remand of the case is directed, consequential steps to bring remaining LRs on record , if there are, can always be taken before the HC in pending appeals.

However, the Court has granted liberty to the parties to make the required amendments in the cause title of the second appeals after remand of the case to the HC by deleting the name of Shiv Dayal and substituting that with the name of his wife – Kasturi Devi and his other LRs before hearing of the second appeals. The SC has also requested the HC to expedite the hearing of the appeals preferably within six months.


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R.S.Agrawal Online
on 26 August 2019
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