Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed the second appeal explaining that the second appeal is maintainable before the High Court if the High Court is satisfied that the case involves a substantial question of law.
Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure, 1908 (CPC). The court, for the reasons to be recorded, may also entertain a second appeal even on any substantial question of law, not formulated by it, if the court is satisfied that the case involved such a question. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. Further relied on case laws were Govindaraju v. Mariamman, AIR 2005 SC 1008, Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 and Bismillah Begum v. Rahmatullah Khan, AIR 1998 SC 970.
According to the plaintiff, the properties of late Nar Bahadur Gurung had been divided between the sons without any formal partition deed. Plot no.302 fell in his share. Plot no. 90 fell in the joint share of his brother late Kharga Bahadur Gurung and defendant no.1. As the plaintiff was staying away from the suit land, the defendant no.1 in connivance with some employees of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. The plaintiff prayed for declaratory reliefs and recovery of possession of the suit property.
The suit was dismissed by the Trial Judge holding that the plaintiff had failed to substantiate his plea that the suit property fell in his share and first Appellate Court upheld the findings of the Trial Court.
Section 101 of the Indian Evidence Act, 1872 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
The Court dismissed the appeal holding that in the present case it was necessary for the plaintiff to plead particulars of how and with whom the defendant no.1 connived. Allegation of connivance must be clearly pleaded with material particulars and proved. The plaintiff did not also plead how exactly the partition took place and what was the share of each of the brothers of the plaintiff.
The Court consequently held that the solitary question of law framed by this court, that the learned First Appellate Court had not considered the ‘parcha khatiyan’ (exhibit-1) correctly and the impugned judgment was based on its misinterpretation, must be answered in the negative.[Chandra Bir Gurung v. Pratap Singh Gurung, 2021 SCC OnLine Sikk 154, decided on 20-10-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
