# Fagoo Ram & Ors v. Ram Laut (Died) & Ors

- **Citation:** (2024) 3 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Second Appeal No. 54 of 2024
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fagoo-ram-ors-v-ram-laut-died-ors-51650
- **Pages:** 9

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
-
UP
Zamindari
Abolition
and
Land
Reforms Act, 1950 - Ss. 122-C and 123 -
Settlement of land - Condition to be
fulfilled for claiming right u/s 123 -
Consequence of failure - Held, first a
person would have to assert that he
comes under the categories provided
under sub-section (3) of Section 122-C
and the land in question is of categories as
provided under sub-section (2) of Section
122-C and he has built a house on the
same - Further held, the plea taken by the
appellants is not sufficient for claiming the
266 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit of Section 123 (1) of the Act of
1950 - The appellants had not constructed
any house on land in dispute, prior to 30th
June, 1985 or even thereafter, therefore
he is not entitled to hold the land in
dispute as owner under Section 123 (1) of
the Act of 1950 - No substantial question
of law arises in this case to be adjudicated
between the parties. (Para 12, 13 and 19)

B. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Meaning - Any question of law which
may affect the final decision in a case is
substantial question of law between the
parties - S. N. Goyal's case relied upon -
'Substantial questions of law' means not
only substantial questions of law of
general importance, but also substantial
question of law arising in a case as
between the parties - A question of law
which arises incidentally or collaterally,
having no bearing in the final outcome,
will not be a substantial question of law.
Where there is a clear and settled
enunciation on a question of law, by this
Court or by the High Court concerned, it
cannot be said that the case involves a
substantial question of law. It is said that
a substantial question of law arises when
a question of law, which is not finally
settled by this court. (Para 16 and 17)

Appeal dismissed. (E-1)

List of cases cited :-

## Text

3 All. Fagoo Ram & Ors. Vs. Ram Laut (Died) & Ors.
265
explained in the earlier paragraph(s). This
will be sufficient to keep in check and
ensure that the legislative object/intent
behind the enactment of section 12A of the
CC Act is not defeated."

14. Based on the aforementioned
judicial
pronouncements,
it
can
be
conclusively inferred that the invocation of
urgent relief should not serve as a pretext to
circumvent or evade Section 12A of the
Act. It is imperative that the factual matrix
and contextual intricacies of each case are
comprehensively
assessed
from
the
plaintiff's perspective. The Supreme Court,
in its wisdom, has expounded that any
attempt to cloak or disguise the true intent
behind seeking such relief, with the
intention of sidestepping the statutory
obligation
of
pre-litigation
mediation,
warrants scrutiny, particularly in instances
where duplicity and falsehood are manifest
or substantiated.

15. In the instant case, it is clear that
the plaintiff did not show any urgency as he
had earlier filed a suit without seeking any
urgent interim reliefs and then withdrew
the same. Subsequently, he filed a suit
along with an application for seeking ex
parte urgent interim relief. Under these
circumstances, I am of the view that the
trial court has correctly examined the
position and held that mandatory provision
of Section 12(A) of the Act should have
been complied with by the appellant.

16. Having considered the facts and
circumstances, I am, however, of the view
that for the ends of justice the order passed
by the trial court rejecting the plaint may be
set aside and modified with a direction
upon the appellant to approach the
mediation centre as per Section 12(A) of
the Act.

17. Accordingly, the impugned order
dated October 31, 2023, rejecting the plaint
of the appellant is set aside and the
appellant/plaintiff is directed to approach
the mediation centre within a period of
seven days from date. After completion of
the above mediation process, the plaint
should be presented in accordance with
law.

18. With the aforesaid directions, the
instant appeal is disposed of.
----------
(2024) 3 ILRA 265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 54 of 2024

Fagoo Ram & Ors. ...Appellants
Versus
Ram Laut (Died) & Ors. ...Respondents

Counsel for the Appellant:
Prabhat Kumar, Rajendra Prasad Verma

Counsel for the Respondent:
Mohan Singh

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
-
UP
Zamindari
Abolition
and
Land
Reforms Act, 1950 - Ss. 122-C and 123 -
Settlement of land - Condition to be
fulfilled for claiming right u/s 123 -
Consequence of failure - Held, first a
person would have to assert that he
comes under the categories provided
under sub-section (3) of Section 122-C
and the land in question is of categories as
provided under sub-section (2) of Section
122-C and he has built a house on the
same - Further held, the plea taken by the
appellants is not sufficient for claiming the
266 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit of Section 123 (1) of the Act of
1950 - The appellants had not constructed
any house on land in dispute, prior to 30th
June, 1985 or even thereafter, therefore
he is not entitled to hold the land in
dispute as owner under Section 123 (1) of
the Act of 1950 - No substantial question
of law arises in this case to be adjudicated
between the parties. (Para 12, 13 and 19)

B. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Meaning - Any question of law which
may affect the final decision in a case is
substantial question of law between the
parties - S. N. Goyal's case relied upon -
'Substantial questions of law' means not
only substantial questions of law of
general importance, but also substantial
question of law arising in a case as
between the parties - A question of law
which arises incidentally or collaterally,
having no bearing in the final outcome,
will not be a substantial question of law.
Where there is a clear and settled
enunciation on a question of law, by this
Court or by the High Court concerned, it
cannot be said that the case involves a
substantial question of law. It is said that
a substantial question of law arises when
a question of law, which is not finally
settled by this court. (Para 16 and 17)

Appeal dismissed. (E-1)

List of cases cited :-

1. Satya Veer & anr.Vs St. of U.P. & ors.; 2015
(4) ADJ 676

2. St. Bank of India & ors.Vs S.N. Goyal; 2008
(8) SCC 92

3. Suresh Lataruji Ramteke Vs Sau. Sumanbai
Pandurang Petkar; JT 2003 (9) SC 481

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Prabhat Kumar, learned
counsel for the appellants and Shri Mohan
Singh, learned counsel for the respondent
no.3.

2. This second appeal has been filed
for setting aside the judgment and decree
dated 25.01.2024 passed by the First
Appellate Court i.e.Additional District
Judge, Court No.1, Sultanpur in Civil
Appeal No.182 of 2001 (Fagoo Ram And
Others vs. Ram Laut and Others) and the
judgement and decree dated 22.10.2011
passed by Trial Court i.e. Civil Judge
(J.D.), Kadipur, Sultanpur in Original Suit
No.337 of 1989 (Fagoo Ram and Others
Vs. Ram Laut and Others).

3. Learned counsel for the appellants
submits that the father of the appellants had
filed a suit for permanent injunction and
declaration of right on some part of Gata
No.105 as an appurtenant land to his house,
which is situated on Gata No.106, on the
ground that the appellants are in possession
of the land in dispute since prior to the
promulgation
of
the
U.P.
Zamindari
Abolition and Land Reforms Act- 1950
(here-in-after referred as the Act of 1950),
therefore it stands settled with them under
Section 9 of the said Act. He further
submits that an alternative plea was also
taken that even if the possession of the
appellants is not found since prior to
promulgation of the Act of 1950, since the
appellants are in possession on the land in
dispute, since before 1985, therefore the
same stands settled with the appellants
under Section 123(1) of the Act of 1950.
But the learned Trial Court as well as the
Appellate Court have dismissed the claim
of the appellants on insufficient ground and
without considering the evidence adduced
before
the
Trial
Court
rightly
and
appropriately. Learned counsel for the
appellants also submits that the Appellate
Court has failed to record any finding in
3 All. Fagoo Ram & Ors. Vs. Ram Laut (Died) & Ors.
267
regard to the possession of the appellants
on the land in dispute and the finding
recorded in regard to Section 123 (1) of the
Act of 1950 is not tenable, therefore the
appellants are before this Court.

4. On the other hand, learned counsel
for the Gaon Sabha submits that judgment
and order passed by the Trial Court as well
as Appellate Court have rightly been passed
in accordance with law after considering
the pleadings of the parties and the
evidence adduced before the Trial Court as
they have failed to prove their possession
on the land in dispute. He further submits
that the benefit of Section 123 (1) of the
Act of 1950 is also not available to the
appellants because the house of the
appellants has not been found on the land
in dispute and the benefit of the same is
available only in case the house has been
built on any such land. Thus the submission
is that the appeal is misconceived and liable
to be dismissed.

5. Having considered the submissions
of learned counsel for the parties, I have
perused the documents placed on record of
this second appeal.

6. The Original Suit No.337 of 1989
was filed by the predecessor-in-interest of
the appellants for permanent injunction and
declaration on the ground that the land in
dispute, which is the part of Gata No.105
and which is on the eastern side of the
house of the appellants which is on Gata
No.106, is in possession of the appellants
and they are using it since prior to the
promulgation of the Act of 1950, therefore
it stands settled with him under Section 9
of the Said Act. The alternative plea of
Settlement of land in dispute with the
appellants under Section 123 (1) of the Act
of 1950 was also taken.

7. The learned Trial Court after
affording opportunity of evidence and
considering the pleadings and evidence
adduced
before
it,
has
recorded
a
categorical finding that the appellants have
failed to prove the construction of the
house
of
the
appellants
prior
to
promulgation of Act of 1950. Thus, they
have failed to prove the possession on the
land in dispute. Even otherwise on the
western and northern side of the house of
the appellants, there is sufficient land for
his use. Accordingly dismissed the suit. The
Appellate court also, considering the
pleadings, evidence and material on record,
found that the appellants have failed to
prove their case and dismissed the appeal
holding that the learned trial court was right
and justified in his view and approach and
his findings/ order is perfectly valid/ legal
and does not call for any interference,
therefore the submission of learned counsel
for the appellants in regard to possession is
misconceived and not tenable.

8. The alternative plea of settlement
of land in dispute under Section 123 (1) of
the Act 1950, taken by the appellants, was
also rejected by trial court on the ground
that house of the appellants is not existing
on the land in dispute, which is the
precondition for settlement under Section
123 (1). The plea of the appellants has also
been considered by the Appellate Court and
dismissed on the ground that Section 123
(1) lays down the provision as to settlement
of certain house sites with existing owner
thereof and order of preference for
allotment of such land for housing site for
members of schedules castes, agricultural
labourer etc. shall be observed in the light
of Section 122-C (3) of the Act of 1950, but
plaintiff did not file any paper pertaining to
the allotment of the disputed land by the
competent authority. The submission of
268 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for the appellants in this
regard is that there is no requirement of
allotment of the site for settlement under
Section 123 (1) of the Act of 1950,
therefore the question arises as to whether
it was a precondition or not and if it was
not precondition as to whether any
substantial question of law arises in this
case for adjudication in view of pleadings
and material on record.

9. Section 123 (1) as renumbered by
U.P. Act No.34 of 1974 is extracted herein-below:-

"[(1)] Without prejudice to the
provisions of Section 9, where any person
referred to in sub-section (3) of Section
122-C has built a house on any land
referred to in subsection (2) of that section,
not being land reserved for any public
purpose, and such house exists on [May 13,
2007] the site of such house shall be held
by the owner of the house on terms and
conditions as may be prescribed."

10. The aforesaid section 123 (1)
provides that where any person referred to
in sub-section (3) of Section 122-C has
built a house on any land referred to in subsection (2) of that section, not being land
reserved for any public purpose, and such
house exists on the site of such house shall
be held by the owner of the house on terms
and conditions as may be prescribed. The
date of existence of house was 30th June,
1985 at the time of filing of suit in 1989,
which is changing time to time. Thus, if a
person referred in Section 122-C (3) of the
Act of 1950 has built a house on any land
referred in sub-section (2) of Section 122C, then the site of such house shall be held
by the owner of the house on terms and
conditions, which may be prescribed.

11. Section 122-C of the Act of 1950
is extracted here-in-below:-

"122C. Allotment of land for
housing site for members of Scheduled
Castes, agricultural labourers, etc. - (1)
The Assistant Collector in charge of the
sub-division on his own motion or on the
resolution, of the Land Management
Committee, may earmark any of the
following classes of land for the provision
of abadi sites for the members of the
Scheduled Castes and [the Scheduled
Tribes and the Other Backward Classes
and the persons of General Category living
below poverty line] and agricultural
labourers and village artisans-

(a) lands referred to in clause (i)
of sub-section (1) of Section 117 and vested
in the Gaon Sabha under that section;

(b) lands coming into possession
of the Land Management Committee under
Section 194 or under any other provisions
of this Act;

(c) any other land which is
deemed to be or becomes vacant under
Section 13, Section 14, Section 163, Section
186, or Section 211;

(d) where the land earmarked for
the extension of abadi and reserved as
abadi site for Harijans under the U.P.
Consolidation of Holdings Act, 1953, is
considered by him to be insufficient, and
land earmarked for other public purposes
under that Act is available, then any part of
the land so available.

(2) Notwithstanding anything in
Sections 122-A, 195, 196, 197 and 198 of
this Act, or in Sections 4, 15, 16, 28-B and
34 of the United Provinces Panchayat Raj
Act,
1947,
the
Land
Management
Committee may with the previous approval
of the Assistant Collector in charge of the
sub-division allot for purposes of building
3 All. Fagoo Ram & Ors. Vs. Ram Laut (Died) & Ors.
269
of houses, to persons referred to in subsection (3)-

(a) any land earmarked under
sub-section (1);

(b) any land earmarked for the
extension of abadi sites for Harijans under
the provisions of the U.P. Consolidation of
Holdings Act, 1953;

(c) any abadi site referred to in
clause (iv) of sub-section (1) of Section 117
and vested in the Gaon Sabha;

(d) any land acquired for the said
purposes under the Land Acquisition Act,
1894.

(3)
The
following
order
of
preference shall be observed in making
allotments under sub-section (2)- [(i) an
agricultural labourer or a village artisan
residing in Gram Sabha and belonging to
any of the following categories in the order
of preference:-

(a) persons belonging to the
Scheduled Castes and the Scheduled
Tribes;

(b) persons belonging to Other
Backward Classes;

(c) persons belonging to the
general category living below poverty
line.];

(ii)
any
other
agricultural
labourer or village artisan residing in the
village;

[(iii) any other person residing in
the Gram Sabha and belonging to any of
the following categories in the order of
preference:-

(a) persons belonging to the
Scheduled Castes or the Scheduled Tribes;

(b) persons belonging to Other
Backward Classes;

(c) persons belonging to the
general category living below poverty
line.];

[(iv) a person with disability
residing in the village.]

Provided that no person shall be
deemed to be a village artisan whose total
income (including income of his or her
spouse and minor children) exceeds two
thousand four hundred rupees in a year.]

(4) If the Assistant Collector-incharge of the sub-division is satisfied that
the Land Management Committee has
failed to discharge its duties or to perform
its functions under sub-section (2) or it is
otherwise necessary or expedient so to do,
he may himself allot such land in
accordance
with
the
provisions
of
subsection (3).

(5) Any land allotted under this
section shall be held by the allottee on such
terms and conditions as may be prescribed.

(6) The Collector may of his own
motion and shall on the application of any
person aggrieved by an allotment of land
under this section inquire in the manner
prescribed into such allotment, and if he is
satisfied that the allotment is irregular, he
may cancel the allotment, and thereupon
the right, title and interest of the allottee
and of every other person claiming through
him in the land allotted shall cease.

(7) Every order passed by the
Assistant Collector under sub-section (4)
shall, subject to the provisions of subsection (6) and every order passed by the
Collector under sub-section (6) shall be
final, and the provisions of [Section 333
and Section 333-A] shall not apply in
relation thereto.

(8) [ * * * ]

[(9) In Rule 115-L of the U.P.
Zamindari Abolition and Land Reforms
Rules, 1952, sub-rule (2) shall be deemed
always to have been omitted.]"

12. In view of above, for claiming a
right under Section 123 (1) of the Act of
1950, first a person would have to assert
that he comes under the categories
270 INDIAN LAW REPORTS ALLAHABAD SERIES
provided under sub-section (3) of Section
122-C and the land in question is of
categories as provided under sub-section
(2) of Section 122-C and he has built a
house on the same, then only may be held
by him on the terms and conditions, which
may be prescribed, but in the present case
the appellants have not taken such plea and
failed to show the terms and conditions,
which may have been prescribed for
holding the same by the appellants. He has
only taken plea in paragraph-2(अ) of the
plaint that if the possession of the plaintiff
is not found prior to abolition of zamindari
on the land in dispute, even then his
possession is coming on the land in dispute
since prior to 1985, therefore he is entitled
to benefit of Section 123 (1) of the Act of
1950 and under said provision he has
become owner of the land in dispute.
Paragraph-2(अ) is extracted here-in-below:-

"धारा 2 (अ) - यह दक व िी र म दनहोर दवव दित
भूदम पर अपने दपत के दसलदसले से क दबि है व िी र म दनहोर एक
गरीब कृषक मििूर एवां दपछ़िी ि दत के अधतगात कुमी उपि दत क
व्यदि है उसक मुख्य पेश कृदष व कृदष सम्बधधी मििूरी ही रह है।
दवव दित भूदम पर यदि व िी क कब्ि िमीधि री दवन श के पूवा क
न प य ि य तो भी दवव दित भूदम पर व िी क कब्ि सन 1985
ई. के पूवा से ही बर बर चल आ रह है। दिससे व िी र म दनहोर
ध र 123 (1) ि०दव० अदधदनयम क ल भ प ने क अदधक री है
और उसके तहत दवव दित भूदम क थव मी हो चुक है।"

13. In view of above, firstly no plea
has been taken that the appellants comes in
preference as per sub-section (3) of Section
122-C and the land in dispute is among one
of the categories as provided under subsection (2) of Section 122-C and he/they
have constructed a house on the said land,
therefore this Court is of the view that the
plea taken by the appellants is not sufficient
for claiming the benefit of Section 123 (1)
of the Act of 1950. Even otherwise, the
appellants had not constructed any house
on land in dispute, prior to 30th June, 1985
or even thereafter, therefore he is not
entitled to hold the land in dispute as owner
under Section 123 (1) of the Act of 1950. A
co-ordinate bench of this Court, in the case
of Satya Veer and Another Vs. State of
U.P. an Others; 2015 (4) ADJ 676, has
held that this apart they are also not entitled
for benefit of Section 123 (1) as it is clearly
emerged that they have not built their house
prior to 01.05.2002, which was a date
amended subsequently.

 14. The learned Trial Court has
considered the alternative plea of the
appellants also and rejected recording a
specific finding that DW-1 has given the
evidence that the appellants has failed to
prove that if he is entitled to benefit of
Section 123 (1) and the benefit of Section
123 (1) is available to the housing site,
therefore the appellants is not entitled for
any benefit of the same on the basis of
evidence adduced before this Court.

15. The Appellate Court has also
recorded a finding that the appellants are
claiming benefit of Section 123 (1), but the
plaintiffs did not file any paper pertaining
to allotment of disputed land by the
competent authority. The contention of
learned counsel for the appellants is that
there is no such requirement. Section 123
(1) of Act of 1950 makes provision of
holding of such housing site on which the
house was built and existing on 30th June,
1985 by a person referred to in sub-Section
(3) of Section 122-C on any land referred
in sub-section (2) of that section, by owner
of the house on terms and conditions as
may be prescribed, therefore the appellants
were required to assert and prove his/ their
category, category of land and that the
house has been built on the land in dispute
and the terms and conditions, which have
3 All. Fagoo Ram & Ors. Vs. Ram Laut (Died) & Ors.
271
been prescribed for holding that housing
site. Thus, this Court is of the view that
even if it may not be a precondition for
holding the housing site under Section 123
(1) of the Act of 1950, the house must have
been built by the claimant on the land in
dispute was required to be proved and the
terms and conditions of holding the said
site were required to show, which the
appellants have failed to do and there is no
plea that house has been built on the land in
dispute, therefore it can not affect the final
outcome of this appeal in view of the
pleadings made by the appellants in the
plaint and unchallenged findings of the
Trial Court in this regard with any cogent
evidence, therefore no substantial question
of law arises in this case.

16. In the context of Section 100
C.P.C., any question of law which may
affect the final decision in a case is
substantial question of law between the
parties, therefore, even if it may be a
question of law, it can not be said to be a
substantial question of law to be decided in
the present case between the parties.

17. The Hon'ble Supreme Court, in
the case of State Bank of India & others
Vs. S.N. Goyal; 2008 (8) SCC 92, has
considered as to what would be the
substantial question of law and difference
between the question of law and the
substantial question of law. Paragraph 13 is
extracted here-in-below:-

"13. Second appeals would lie in
cases which involve substantial questions
of law. The word 'substantial' prefixed to
'question of law' does not refer to the stakes
involved in the case, nor intended to refer
only to questions of law of general
importance, but refers to impact or effect of
the question of law on the decision in the lis
between the parties. 'Substantial questions
of law' means not only substantial
questions of law of general importance, but
also substantial question of law arising in a
case as between the parties. In the context
of section 100 CPC, any question of law
which affects the final decision in a case is
a substantial question of law as between
the parties. A question of law which arises
incidentally or collaterally, having no
bearing in the final outcome, will not be a
substantial question of law. Where there is
a clear and settled enunciation on a
question of law, by this Court or by the
High Court concerned, it cannot be said
that the case involves a substantial
question of law. It is said that a substantial
question of law arises when a question of
law, which is not finally settled by this
court (or by the concerned High Court so
far as the State is concerned), arises for
consideration in the case. But this
statement has to be understood in the
correct perspective. Where there is a clear
enunciation of law and the lower court has
followed or rightly applied such clear
enunciation of law, obviously the case will
not be considered as giving rise to a
substantial question of law, even if the
question of law may be one of general
importance. On the other hand, if there is a
clear enunciation of law by this Court (or
by the concerned High Court), but the
lower court had ignored or misinterpreted
or misapplied the same, and correct
application of the law as declared or
enunciated by this Court (or the concerned
High Court) would have led to a different
decision, the appeal would involve a
substantial question of law as between the
parties. Even where there is an enunciation
of law by this court (or the concerned High
Court) and the same has been followed by
the lower court, if the appellant is able to
persuade
the
High
Court
that
the
272 INDIAN LAW REPORTS ALLAHABAD SERIES
enunciated
legal
position
needs
reconsideration, alteration, modification or
clarification or that there is a need to
resolve an apparent conflict between two
view points, it can be said that a substantial
question of law arises for consideration.
There cannot, therefore, be a strait-jacket
definition as to when a substantial question
of law arises in a case. Be that as it may."

18. The Hon'ble Supreme Court, in
the case of Suresh Lataruji Ramteke Vs.
Sau. Sumanbai Pandurang Petkar; JT
2003 (9) SC 481, while retreating the
principles for considering a second appeal
under
Section
100
C.P.C.
and
its
jurisprudence considered the judgment of a
three judge Bench of Hon'ble Supreme
Court in the case of Santosh Hazari Vs.
Purshottam Tiwari; 2001 (3) SCC 179 in
regard to what constitutes a substantial
question of law and one of them is material
bearing on the decision of case. The
relevant paragraph 13 containing paragraph
13.03 is extracted here-in-below:-

"13. The jurisprudence on Section
100, CPC is rich and varied. Time and
again this Court in numerous judgments
has laid down, distilled and further
clarified
the
requirements
that
must
necessarily be met in order for a Second
Appeal as laid down therein, to be
maintainable, and thereafter be adjudicated
upon. Considering the fact that numerous
cases are filed before this Court which
hinge on the application of this provision,
we find it necessary to reiterate the
principles.

13.1
The
requirement,
most
fundamental under this section is the
presence and framing of a "substantial
question of law". In other words, the
existence of such a question is sine qua non
for exercise of this jurisdiction.9 13.2 The
jurisdiction under this section has been
described by this Court in Gurdev Kaur v.
Kaki10 (TwoJudge Bench) stating that post
1976 amendment, the scope of Section 100
CPC stands drastically curtailed and
narrowed down to be 9 Panchugopal Barua
v. Umesh Chandra Goswami and Ors.
(1997) 4 SCC 713 Two Judge Bench 10
(2007) 1 SCC 546 Two Judge Bench
restrictive in nature. The High Court's
jurisdiction of interfering under Section
100 CPC is only in a case where
substantial questions of law are involved,
also clearly formulated/set out in the
memorandum of appeal. It has been
observed that:

"At the time of admission of the
second appeal, it is the bounden duty and
obligation of the High Court to formulate
substantial questions of law and then only
the High Court is permitted to proceed with
the case to decide those questions of law.
The language used in the amended section
specifically incorporates the words as
"substantial question of law" which is
indicative of the legislative intention. It
must be clearly understood that the
legislative intention was very clear that
legislature never wanted second appeal to
become "third trial on facts" or "one more
dice in the gamble". The effect of the
amendment mainly, according to the
amended section, was:

(i) The High Court would be
justified in admitting the second appeal
only when a substantial question of law is
involved;

(ii) The substantial question of
law to precisely state such question;

(iii) A duty has been cast on the
High
Court
to
formulate
substantial
question of law before hearing the appeal;

(iv) Another part of the section is
that the appeal shall be heard only on that
question."
3 All. Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & Ors.
273

Gurdev
Kaur
(supra)
was
referred to and relied upon in Randhir
Kaur v. Prithvi Pal Singh & Ors. (2019)
17 SCC 71; Two Judge Bench

13.3
In
Santosh
Hazari
v.
Purushottam Tiwari12 a Bench of three
Judges, held as under in regard to what
constitutes a substantial question of law:

a) Not previously settled by law
of land or a binding precedent.

b) Material bearing on the
decision of case; and (c) New point raised
for the first time before the High Court is
not a question involved in the case unless it
goes to the root of the matter. Therefore, it
will depend on facts of each case.

Such principles stand followed in
Government of Kerala v. Joseph [2023
SCC OnLine SC 961] (Two Judge Benh)
and Chanddrabhan Vs. Saraswati [2022
SCC OnLine SC1273] (Two Judge Bench).

13.4
Nonformulation
of
substantial question(s) of law renders
proceedings
"patently
illegal".
This
Court's
decisions
in
Umerkhan
v.
Bimillabi15 and Shiv Cotex v. Tirgun Auto
Plast Pvt Ltd. & Ors.16 indicate this
position. ."

19. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that this
second
appeal
has
been
filed
on
misconceived and baseless grounds and no
substantial question of law arises in this
case to be adjudicated between the parties
here-in. Thus, the appeal lacks merit.

20. The second appeal is, accordingly,
dismissed.
----------
(2024) 3 ILRA 273
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2024
BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Second Appeal No. 428 of 2016

Smt. Raeesa Bano ...Appellants
Versus
Smt. Tabassum Jahan & Ors.
 ...Respondents

Counsel for the Appellants:
Alok Mishra, Adnan Ahmad, Dr. Manoj
Kumar Dubey, Roopani Mishra

Counsel for the Respondents:
C.S.C., Mohd. Wajid Irfan, Narendra Kumar
Pandey, Vidhu Bhushan Kalia

A. Civil Law - Civil Procedure Code, 1908 -
Sections 9 & 100 - Substantial question of
law - Specific Relief Act, 1963 - Section
34 - Bar of civil suit - Suit of civil nature -
Relief to declare the death of a person on
the ground that he is missing for more
than 7 years was sought from civil court -
Maintainability - Held, the suit at the
instance of the legal heir for declaration of
death of a person is maintainable - There
is no bar u/s 34 of the Act, 1963, for filing
a suit for declaration of a civil death of
another person, if the plaintiff is a legal
heir and such legal character of civil death
is for his benefit and the same is
attributed to such legal character - S. 9 of
CPC permits all suits of a civil nature
except the suits which are expressly or
impliedly barred - The suit for declaration
of any legal character (civil death of a
person) is not specially barred by Section
34 of the Act, 1963 - Suit for mere
declaration of civil death is very well
maintainable and is not barred by Section
34 of the Act, 1963 merely because
further relief was not claimed. (Para 9, 11,
12, 13 and 14)

Appeal allowed. (E-1)

List of cases cited :-