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

- **Citation:** [2019] 10 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 2019-08-14
- **Case number:** Civil Appeal No.7363 of 2000
- **Bench:** Abhay Manohar Sapre, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-rajasthan-ors-v-shiv-dayal-anr-32962
- **Pages:** 8

## Headnote

Code of Civil Procedure, 1908: s.100 - Substantial questions
of law - Suit by respondent no.1 against the appellant-State and its
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
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
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
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
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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SUPREME COURT REPORTS
[2019] 10 S.C.R.
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
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,
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
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
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
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
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 satisf

## Text

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STATE OF RAJASTHAN & ORS.
v
SHIV DAYAL & ANR.
(Civil Appeal No.7363 of 2000)
AUGUST 14, 2019
[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
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
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
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
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
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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[2019] 10 S.C.R.
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
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,
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
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
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
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
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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land and, if so, whether the parties to the suit satisfied all the
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
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
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,
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
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
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.
Milind Kumar, Harsha Vinoy, Advs. for the Appellants.
S. K. Bhattacharya, Adv. for the Respondents.
STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.
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[2019] 10 S.C.R.
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
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.
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.
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 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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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 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 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. (above-quoted) 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.
STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.
[ABHAY MANOHAR SAPRE, J.]
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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"). 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 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
are in the nature of substantial questions within the meaning of Section
100 of the Code.
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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.
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 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.
STATE OF RAJASTHAN & ORS. v. SHIV DAYAL & ANR.
[ABHAY MANOHAR SAPRE, J.]
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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 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.
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.
Devika Gujral
Matter remitted to High Court.