# Km. Reshma Khatoon v. Gufran Ahmad and others

- **Citation:** (2012) 3 ILRA 1230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-15
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-reshma-khatoon-v-gufran-ahmad-and-others-42381
- **Pages:** 4

## Headnote

Code
of
Civil
Procedure-Section-100Second Appeal-Substantial Question of
law-what
is
?-explained-revocation
of
licence-established from the findings of
Court below-no substantial question of law
involves-can not be interfered in Second
Appeal.

Held: Para 9 and 10

Admittedly, ancestors of the plaintiff were
jamindars of the area and not only the
disputed
premises
but
the
entire
surrounding
areas
are
still
in
the
ownership and possession of the plaintiff
which is evident from the site plan
prepared by the Commissioner, which is
mentioned in the decree sheet.

A detailed hearing and perusal of the
judgment and orders of both the Courts
below made it abundantly clear that no
substantial question of law is involved in
this appeal. Even appreciation of evidence
by the two Courts below has not been
assailed before this Court.
Case law discussed:
RSA No. 3166 of 2007 (O&M) 1; 2005 (23) LCD
466; 2006 (3) SCC 224; A.I.R. 1962 S.C. 1314;
(2005) 7 S.C.C. 60; A.I.R. 1947 PC 19; (2011) 1
S.C.C. 673; Union of India Vs. Ibrahim & Another
in Civil Appeal No.1374 of 2008, decided on July
17, 2012

## Text

1230 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.10.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

SECOND APPEAL No. - 262 of 2012

Km. Reshma Khatoon
...Petitioner
Versus
Gufran Ahmad and others ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Srivastava
Sri M. Waris Faroqi

Counsel for the Respondent:
Sri Adnan Ahmad

Code
of
Civil
Procedure-Section-100Second Appeal-Substantial Question of
law-what
is
?-explained-revocation
of
licence-established from the findings of
Court below-no substantial question of law
involves-can not be interfered in Second
Appeal.

Held: Para 9 and 10

Admittedly, ancestors of the plaintiff were
jamindars of the area and not only the
disputed
premises
but
the
entire
surrounding
areas
are
still
in
the
ownership and possession of the plaintiff
which is evident from the site plan
prepared by the Commissioner, which is
mentioned in the decree sheet.

A detailed hearing and perusal of the
judgment and orders of both the Courts
below made it abundantly clear that no
substantial question of law is involved in
this appeal. Even appreciation of evidence
by the two Courts below has not been
assailed before this Court.
Case law discussed:
RSA No. 3166 of 2007 (O&M) 1; 2005 (23) LCD
466; 2006 (3) SCC 224; A.I.R. 1962 S.C. 1314;
(2005) 7 S.C.C. 60; A.I.R. 1947 PC 19; (2011) 1
S.C.C. 673; Union of India Vs. Ibrahim & Another
in Civil Appeal No.1374 of 2008, decided on July
17, 2012

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
parties and gone through the records.

2. This second appeal has been
preferred by the appellant against the
judgment and decree dated 03.01.2010, in
original suit no.104 of 2005, by which the
plaintiff's suit for permanent, mandatory
and prohibitory injunction was decreed,
which has been confirmed by the learned
First Appellate Court in regular civil appeal
no.11 of 2010, vide judgment and order
dated 28.08.2012.

3. This is a suit regarding the disputed
premises which is surrounded from all the
sides by the property of the plaintiff, in
which the defendants were granted license
which has since been revoked.

4. In view of Section 54 of Easement
Act, the licence can be expressed or
implied. The provision is reproduced
below:-

"Grant may be express or implied.-
The grant of a license may be express or
implied from the conduct of the grantor,
and an agreement which purports to create
an easement, but is ineffectual for that
purpose, may operate to create a license."

5. Not only this, Section 61 of
Easement Act provides as under:-

"Revocation express or implied.- The
revocation of a license may be express or
implied."
3 All] Km. Reshma Khatoon V. Gufran Ahmad and others
1231

6. In view of these provisions, grant
and revocation of license has been
established and the courts below have
rightly
discussed
the
evidence
and
reached to the correct conclusions. No
substantial point of law or fact is involved
in this appeal.

7. Learned counsel for the appellant
relied upon the law laid down by Punjab
and Haryana High Court in the case of
Surjit Singh and others v. Gurmit Singh
and others, passed in RSA No.3166 of
2007 (O&M) 1 and the law laid down by
this Court in Vishwanath Singh v.
Jogendra Singh, 2005 (23) LCD 466.
Both these judgments have no relevance
to the controversy in the suit.

8. The Hon'ble Apex Court in the
case of G.Amalorpavam & ors. v. R.C.
Diocese of Madurai & ors., 2006 (3)
SCC 224 has held as under:-

"Where the appellate court has
considered the entire evidence on record
and discussed the same in detail, come to
any conclusion and its findings are
supported by reasons even though the
point has not been framed by the
appellate Court there is substantial
compliance with the provisions of Order
41 Rule 31 CPC and the judgment is not
in any manner vitiated by the absence of a
point of determination. Where there is an
honest endeavour on the part of the lower
appellate
court
to
consider
the
controversy between the parties and there
is proper appraisement of the respective
cases and weighing and balancing of the
evidence,
facts
and
the
other
considerations appearing on both sides is
clearly manifest by the perusal of the
judgment of the lower appellate court, it
would be a valid judgment even though it
does
not
contain
the
points
for
determination."

9. Admittedly, ancestors of the
plaintiff were jamindars of the area and
not only the disputed premises but the
entire surrounding areas are still in the
ownership and possession of the plaintiff
which is evident from the site plan
prepared by the Commissioner, which is
mentioned in the decree sheet.

10. A detailed hearing and perusal of
the judgment and orders of both the
Courts below made it abundantly clear
that no substantial question of law is
involved in this appeal. Even appreciation
of evidence by the two Courts below has
not been assailed before this Court.

11. In Sir Chunnilal V. Mehta & &
Sons Ltd. Vs. Century Spinning and
Manufacturing Co. Ltd., reported in
A.I.R. 1962 S.C., 1314, the Hon'ble Apex
Court for the purposes of determining the
issue has held :

"The proper test for determining
whether a question of law raises in the
case is substantial, would, in our opinion,
be whether it is of general public
importance or whether it directly and
substantially affects the rights of the
parties."

12. Further in Rajeshwari Vs.
Puran Indoria, reported in (2005) 7
S.C.C., 60, it was held :

"The Court, for the reasons to be
recorded, may also entertain a second
appeal even on any other substantial
question of law, not formulated by it, if
the Court is satisfied that the case
involves such a question. Therefore, the
1232 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
existence of a substantial question of law
is a sine-quanon for the exercise of
jurisdiction under the provisions of
Section 100 C.P.C. The second appeal
does not lie on the ground of erroneous
findings of facts based on appreciation of
the relevant evidence."

13. In Smt. Bibhabati Devi Vs.
Ramendra Narayan Roy & amp; Ors.,
reported in A.I.R. 1947 PC 19, it has been
held :

"the Privy Council has provided the
guidelines as in what cases the second
appeal can be entertained, explaining the
provisions
existing
prior
to
the
amendment of 1976, observing .... that
miscarriage of justice means such a
departure from the rules which permeate
all judicial procedure as to make that
which happen not in the proper sense of
the word a judicial procedure at all. That
the violation of some principles of law or
procedure must be such erroneous
proposition of law that if that proposition
to be corrected, the finding cannot stand,
or it may be the neglect of some principle
of law or procedure, whose application
will have the same effect. The question
whether there is evidence on which the
Courts could arrive at their finding, is
such a question of law."

14. In Vijay Kumar Talwar Vs.
Commissioner of Income Tax, New
Delhi, reported in (2011) 1 S.C.C. 673, it
has been held :

"a point of law which admits of no
two opinions may be a proposition of law
but cannot be a substantial question of
law. To be 'substantial' a question of law
must be debatable, not previously settled
by law of the land or a binding precedent,
and must have a material on the decision
of the case, if answered either way,
insofar as the rights of the parties before
it are concerned. To be a question of law
'involving in the case' there must be first a
foundation for it laid in the pleadings and
the question should emerge from the
sustainable findings of fact arrived at by
court of facts and it must be necessary to
decide that question of law for a just and
proper decision of the case. It will,
therefore, depend on the facts and
circumstances of each case, whether a
question of law is a substantial one or
not; the paramount overall consideration
being the need for striking a judicious
balance
between
the
indispensable
obligation to do justice at all stages and
impelling
necessity
of
avoiding
prolongation in the life of any lis."."

15. In the case of Union of India
Vs. Ibrahim & Another in Civil Appeal
No.1374 of 2008, decided on July 17,
2012, the Hon'ble Apex Court has held :

"There
may
be
exception
circumstances where the High Court is
compelled to interfere, notwithstanding
the limitation imposed by the wording of
Section 100 CPC. It may be necessary to
do so for the reason that after all the
purpose of the establishment of courts of
justice is to render justice between the
parties, though the High Court is bound
to
act
with
circumspection
while
exercising such jurisdiction. In second
appeal the court frames the substantial
question of law at the time of admission of
the appeal and the Court is required to
answer all the said questions unless the
appeal is finally decided on one or two of
those questions or the court comes to the
conclusion that the question(s) framed
could not be the substantial question(s) of
3 All] Manoj Kumar Saxena V. State of U.P. and others
1233
law. There is no prohibition in law to
frame the additional substantial question
of law if the need so arises at the time of
the final hearing of the appeal."

16. In view of the law as discussed
above, the second appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 267 of 2010

Manoj Kumar Saxena
 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Lokendra Kumar
Sri A.K.Shukla
Sri Ram Pratap Yadav

Counsel for the Respondents:
C.S.C.

U.P. Government Dying in Harness Rules
1974-Rule
5-Compassionate
appointment-petitioner's father died in
the year 1987-being 12 years old after
getting majority claimed compassionate
appointment-State Government rejected
on ground of delay-quashed by High
Court-on
second
inning
inspite
of
direction of Court-rejection by District
Magistrate on ground of delay-heldunsustainable-order quashed with cost
of
Rs.
20,000/-further
direction
to
consider appointment within 6 weeks.

Held: Para-5

 In the instant case, admittedly, the
petitioner was a minor and was only 12
years of age. The application was moved
upon attaining the age of majority. The
Rule provides that the application can be
filed within five years from the date of
the death of the Government employee.
In the instant case, the application was
filed after six years from the date of
death of the father and consequently the
delay, if any, is of one year only. In the
opinion of the Court, the delay was not
such which could be said to be belated
and, such delay can be condoned in the
circumstances of the given case.
Case Law discussed:
2010 (7) ADJ

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri R.P. Yadav, learned
counsel for the petitioner and the learned
Standing counsel.

2. The petitioner's father died in the
year 1987. At that time, the petitioner was a
minor, being 12 years old and, consequently
upon reaching the age of majority, applied
for appointment on compassionate grounds
under the U.P. Recruitment of Dependents
of Government Servants Dying in Harness
Rules,1974 (hereinafter referred to as the
Rules of 1974), in the year 1993. Since
there was a delay in moving the application,
the matter was referred to the State
Government. The State Government, after
considering
the
matter,
rejected
the
petitioner's application on the ground that it
was
belated.
The
petitioner,
being
aggrieved, filed a writ petition, which was
allowed by a judgement dated 23rd
February, 2000. The writ court held that the
delay could be condoned under the Rules
and accordingly quashed the impugned
order and remitted the matter again to the
Authority concerned to redecide the matter.
The District Magistrate, by the impugned
order dated 20th August, 2003, has again
rejected the application on the ground of
delay. The petitioner, being aggrieved, has
filed the present writ petition.