Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7363 OF 2000
State of Rajasthan & Ors. ….Appellant(s)
VERSUS
Shiv Dayal & Anr. …Respondent(s)
WITH
CIVIL APPEAL No.7364 of 2000
AND
CIVIL APPEAL No.7365 of 2000
J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals are directed against the final
judgment and order dated 23.03.1999 passed by the
High Court of Judicature for Rajasthan Bench at
Jaipur in S.B. Civil Second Appeal Nos.83, 84 and 85
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.08.14
17:45:52 IST
Reason:
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of 1999 whereby the High Court dismissed the second
appeals filed by the appellants herein.
2. A f
ew facts need mention hereinbelow for the
disposal of these appeals, which involve a short point.
3. The appellants are the defendants and
respondent No. 1 is the plaintiff in the civil suit out of
which these appeals arise.
4. The appellant No. 1 is the State of Rajasthan and
respondent No. 1 claims to be the mining lessee in
relation to the suit land under the Mines and Minerals
(Development & Regulation) Act (hereinafter referred to
as “MMRD Act”).
5. The respondent No. 1 filed a civil suit against the
appellant State and its authorities and claimed
therein a relief of grant of permanent injunction
restraining the State and its authorities from
interfering in carrying out the mining operations on
the suit land by respondent No.1.
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6. Respondent No. 1 claimed this relief inter alia on
the averments that the suit land was not the part of
any protected Forest area as claimed by the State
authorities but it was a part of the Revenue area. It
was averred that since the suit land did not fall in the
protected forest area, the respondent No. 1 (plaintiff)
had a right to carry out mining operation on the suit
land without any interference of the State and its
authorities.
7. The State contested the suit by denying the
averments made in the plaint. The Trial Court framed
issues. Parties led their evidence. By Judgment and
decree dated 10.05.1998, the Trial Court decreed in
favour of the plaintiff the suit and granted an
injunction against the State and its authorities in
relation to the suit land, as prayed in the plaint.
8. The State felt aggrieved and filed first appeal
before the District Judge. By Judgment dated
03.09.1998, the first Appellate Court dismissed the
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appeal and affirmed the judgment/decree of the Trial
Court giving rise to filing of the second appeals by the
State in the High Court.
9. By impugned order, the High Court dismissed the
second appeals holding that the appeals did not
involve any substantial question of law. It is against
this order, the State felt aggrieved and has filed the
present appeals by way of special leave before this
Court.
10. So, the short question, which arises for
consideration in these appeals, is whether the High
Court was justified in dismissing the State's second
appeals on the ground that these appeals did not
involve any substantial question of law.
11. Heard Mr. Milind Kumar, learned counsel for the
appellants and Mr. S.K. Bhattacharya, learned counsel
for respondent No.1.
12. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
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constrained to allow the appeals, set aside the
impugned order and remand the case to the High
Court for deciding the second appeals afresh on merits
in accordance with law.
13. In our opinion, the need to remand the case to
the High Court has arisen because we find that the
second appeals did involve several substantial
questions of law for being answered on merits in
accordance with law. The High Court was, therefore,
not right in so holding.
14. Indeed, we find that the High Court dismissed
the second appeals essentially on the ground that
since the two Courts have decreed the suit, no
substantial question of law arises in the appeals. In
other words, the High Court was mostly swayed away
with the consideration that since two Courts have
decreed the suit, resulting in passing of the decree
against the State, there arises no substantial question
of law in the appeals. It is clear from the last
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paragraph of the impugned order, which reads as
under:
“ Under these circumstances, when both
the Ld. Courts have arrived at the conclusion
that the disputed area is outside the forest
area. Therefore, the principles laid down in
T.N. GODAWARAN vs. U.O.I. (abovequoted)
cannot be enforced in this appeal.”
(Emphasis supplied)
15. We do not agree with the aforementioned
reasoning and the conclusion arrived at by the High
Court.
16. It is not the principle of law that where the High
Court 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.
17. True it is as has been laid down by this Court in
several decisions that “concurrent finding of fact” is
usually binding on the High Court while hearing the
second appeal under Section 100 of the Code of Civil
Procedure, 1908(hereinafter referred to as “the Code”).
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However, this rule of law is subject to certain well
known exceptions mentioned infra .
18. 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 and documentary) in the light
of the pleadings of the parties.
19. 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.
20. 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.
21. 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
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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 Nagpur 117 Para 43).
22. In our opinion, if any one or more ground, as
mentioned above, 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 Code.
23. Coming to the facts of the case, we are of the
view that the following are the questions which do
arise for consideration in the suit/appeal for proper
adjudication of the rights of the parties to the suit and
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are in the nature of substantial questions within the
meaning of Section 100 of the Code.
24. First, whether the suit land was a part of a
protected Forest area, i.e., Forest land and, if so,
whether the parties satisfied all the statutory
provisions of the Forest Laws enacted by the Center
and the State?
25. 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.
26. 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.
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27. Fourth, whether a suit is hit by any provision of
Forest Laws or MMRD Act or/and Revenue Laws
expressly or by implication.
28. 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?
29. In our opinion, all the five questions enumerated
above did arise in the case. As a 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 mentioned above.
30. In our view, the High Court, therefore, should
have admitted the second appeal by framing
appropriate substantial question(s) of law arising in
the case and answered them on their respective merits
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rather than to dismiss the appeals without considering
any of the aforementioned questions.
31. It is for this reason, we are of the view that the
interference in the impugned order is called for to
enable the High Court to decide the controversy in its
proper perspective.
32. In the light of the foregoing discussion, the
appeals succeed and are accordingly allowed. The
impugned order is set aside. The case is remanded to
the High Court for deciding the second appeals afresh
on merits after framing appropriate substantial
questions of law(s) arising in the case.
33. Needless to say, the High Court will 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 (Centre and
State), MMRD Act and State Revenue Laws.
34. We, however, make it clear that we have not
expressed any opinion on the merits of the case having
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formed an opinion to remand the case to the High
Court for deciding afresh.
35. It was, however, brought to our notice that
during pendency of the appeals Shiv Dayal
plaintiff/respondent No.1 in civil suit has expired. We,
however, find that his wife – Smt. Kasturi Devi is
already on record in two connected appeals/civil suits;
Second, all the three suits/appeals, i.e., the one filed
by Shiv Dayal and two filed by his wife Kasturi Devi)
were clubbed together for their analogues disposal;
Third, when one legal representative of the deceased is
already on record, the appeal would not abate; and
lastly, when the remand of the case is directed,
consequential steps to bring remaining legal
representative of the deceased on record, if there are,
can always be taken before the High Court in pending
appeals. It is for these four reasons, we are of the view
that the appeals filed against Shiv Dayal have not
abated.
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36. The parties are, however, granted liberty to make
necessary amendments in the cause title of the second
appeals after remand of the case to the High Court by
deleting the name of Shiv Dayal and substitute in his
place the name of his wife Kasturi Devi and his other
legal representatives, if there are, before hearing of the
second appeals.
37. We request the High Court to expedite the
hearing of the appeals preferably within 6 months.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[R. SUBHASH REDDY]
New Delhi;
August 14, 2019
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