STATE OF RAJASTHAN & ORS.versusSHIV DAYAL & ANR.

                          [2019] 10 S.C.R. 243                             243


                 STATE OF RAJASTHAN & ORS.                                 A
                                   v
                       SHIV DAYAL & ANR.
                    (Civil Appeal No.7363 of 2000)
                          AUGUST 14, 2019                                  B
               [ABHAY MANOHAR SAPRE AND
                    R. SUBHASH REDDY, JJ.]
       Code of Civil Procedure, 1908: s.100 – Substantial questions
of law – Suit by respondent no.1 against the appellant-State and its       C
authorities seeking grant of permanent injunction against the State
and its authorities from interfering in carrying out the mining
operations on the suit land by respondent no.1 – Claim was inter
alia based on ground that the suit land was not part of any protected
forest area as claimed by the State authorities but was part of the
                                                                           D
Revenue area and, therefore, respondent no.1 had a right to carry
out mining operation on the suit land without any interference of
the State and its authorities – Trial court decreed the suit and granted
an injunction against the State and its authorities in relation to the
suit land – First appellate court affirmed the order of trial court –
High Court dismissed the appeals holding that since the two courts         E
decreed the suit, no substantial question of law arose in the appeals
– Aggrieved, State filed instant appeals – Held: High Court was
swayed away with the consideration that since two courts have
decreed the suit, resulting in passing of the decree against the State,
there was no substantial question of law in the appeals – When any
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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 the decision is one which
no Judge acting judicially could reasonably have reached – If any          G
one or more ground, is made out in an appropriate case on the
basis of the pleading and evidence, such ground constitute
substantial question of law within the meaning of s.100 of the Code
– In the instant case, the questions arose as to whether the suit land
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244            SUPREME COURT REPORTS                       [2019] 10 S.C.R.


A     was a Forest land or a Revenue land; whether a mining lease of the
      suit land could be granted by the State for carrying out the mining
      operation in accordance with the MMRD Act and, if so, whether it
      satisfied all the statutory provisions of the MMRD Act etc. – The
      suit could not have been tried properly without deciding these
      questions in the light of the pleadings, evidence and the applicable
B
      laws – High Court, therefore, ought to have admitted the second
      appeal by framing appropriate substantial questions of law and
      answered them on their respective merits – Matter remitted to High
      Court for consideration afresh.
           Allowing the appeals and remitting the matter to High Court,
C     the Court
             HELD : 1. It is true 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. However,
      this rule of law is subject to certain well known exceptions. In
D     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. Similarly, 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
E     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. [Paras 17-20] [248-B-D]
            Rajeshwar Vishwanath Mamidwar & Ors. v. Dashrath
F           Narayan Chilwelkar & Ors.AIR 1943 Nagpur 117
            – approved.
            2. In the facts of the case, the following questions arose
      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
G     questions within the meaning of Section 100 of the Code. 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? Second, whether the suit land was a part of a Revenue

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   STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.                         245


land and, if so, whether the parties to the suit satisfied all the        A
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
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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          C
and irreparable loss is made out for grant of permanent injunction
in plaintiff’s favour? 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. The High Court,
                                                                          D
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 rather than to dismiss
the appeals without considering any of the those questions.
[Paras 23-30] [248-G-H; 249-A-F]
                       Case Law Reference                                 E

AIR 1943 Nagpur 117             approved                 Para 21
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7363
of 2000.
      From the Judgment and Order dated 23.03.1999 of the High            F
Court of Judicature for Rajasthan at Jaipur in S.B. Civil Second Appeal
No. 83 of 1999.
      With
      Civil Appeal Nos. 7364, 7365 of 2000.
                                                                          G
      Milind Kumar, Harsha Vinoy, Advs. for the Appellants.
      S. K. Bhattacharya, Adv. for the Respondents.


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246             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A           The Judgment of the Court was delivered by :
            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 of 1999
B     whereby the High Court dismissed the second appeals filed by the
      appellants herein.
            2. A few facts need mention hereinbelow for the disposal of these
      appeals, which involve a short point.

C            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
D     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.
E            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.
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             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.
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             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 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.

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   STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.                              247
             [ABHAY MANOHAR SAPRE, J.]

       9. By impugned order, the High Court dismissed the second appeals       A
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     B
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     C
of the record of the case, we are 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         D
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       E
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 paragraph of the impugned order,
which reads as under:                                                          F
        “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. (above-quoted) cannot
      be enforced in this appeal.”
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                                                   (Emphasis supplied)
      15. We do not agree with the aforementioned reasoning and the
conclusion arrived at by the High Court.

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248             SUPREME COURT REPORTS                            [2019] 10 S.C.R.


A            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
B     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”). 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,
C     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.
D           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
E     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. (see
      observation made by learned Judge -Vivian Bose,J.- as His
F     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
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      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
      are in the nature of substantial questions within the meaning of Section
H     100 of the Code.
    STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.                                   249
              [ABHAY MANOHAR SAPRE, J.]

       24. First, whether the suit land was a part of a protected Forest             A
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   B
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            C
Forest and Revenue Laws.
     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          D
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           E
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 rather              F
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.                                               G
       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.                                                                         H
250              SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A           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
B     opinion on the merits of the case having 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
C     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
D     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.
             36. The parties are, however, granted liberty to make necessary
      amendments in the cause title of the second appeals after remand of the
E     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.
F

      Devika Gujral                                    Matter remitted to High Court.




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