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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7363 OF 2000

State of Rajasthan & Ors. ….Appellant(s)

VERSUS

Shiv Dayal & Anr. …Respondent(s)

WITH

CIVIL APPEAL No.7364 of 2000

JUDGMENT

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

Signature Not Verified

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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.

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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

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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.

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

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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

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paragraph of the impugned order, which reads as

under:

“Under these circumstances, when both

15. We do not agree with the aforementioned

reasoning and the conclusion arrived at by the High

Court.

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”).

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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

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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

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are in the nature of substantial questions within the

meaning of Section 100 of the Code.

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.

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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

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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.

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

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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.

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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.

………...................................J.
[ABHAY MANOHAR SAPRE]

…...……..................................J.
[R. SUBHASH REDDY]
New Delhi;
August 14, 2019

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