It would be imperative to mention right at the outset that the Supreme Court has just recently on August 14, 2019 in State of Rajasthan & Ors. Vs Shiv Dayal & Anr. in Civil Appeal No. 7363 of 2000 With Civil Appeal No. 7364 of 2000 And Civil Appeal No. 7365 of 2000 has laid down in no uncertain terms that a High Court cannot dismiss a second appeal merely on the ground that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), and thus such finding becomes unassailable. It must be pointed out that in this case, the Rajasthan High Court Bench at Jaipur dismissed a second appeal filed by the State on the ground 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. But the Supreme Court differed with this approach.

To start with, this latest, landmark and laudable judgment authored by Justice Abhay Manohar Sapre for himself and Justice R Subhash Reddy sets the ball rolling by first and foremost pointing out in para 1 wherein it is pointed out that, 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.

Briefly stated, para 2 then points out that, A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point. Para 3 then discloses that, The appellants are the defendants and respondent No. 1 is the plaintiff in the civil suit out of which these appeals arise. Para 4 further discloses that, 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).

Truth be told, it is then unravelled in para 5 that, 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. Para 6 then further elaborates saying that, 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.

Be it noted, para 7 then clearly states that, The State contested the suit by denying the averments made in the plaint. The Trial Court frmaed issues. Parties led their evidence. By Judgment and decree dated 10.05.1998, the Trial Court decreed in favour of the plaintiff in the suit and granted an injunction against the State and its authorities in relation to the suit land, as prayed in the plaint.

As a consequence, we then find palpably what is stated in para 8 that, 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.

What follows next is elaborated in para 9 which reveals that, 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.

Shortly put, it is then asked in para 10 that, 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.

Do note, para 12 then illustrates stating that, 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.

While elaborating further, it is then observed in para 13 that, 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.

Going forward, it is then stipulated in para 14 that, 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).

What's more, it is then made amply clear in para 15 that, We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court. Also, the Apex Court then seeks to make it clear in para 16 that, 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.

Not stopping here, it is then further clarified in para 17 that, 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.

Needless to say, para 18 then holds that, 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. In a similar vein, para 19 too holds that, 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.

Moving on, para 20 then says, 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.

It would be pertinent to mention here that the Apex Court then observes in para 21 that, 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).

Frankly speaking, it is then made clear in para 22 that, 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.

To put things in perspective, it is then held in para 23 that, 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.

To be sure, let us now discuss them turn by turn. To begin with, para 24 while laying the groundwork points out that, 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? Para 25 then further states that, 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.

Furthermore, para 26 then envisages that, 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. Para 27 then says that, Fourth, whether a suit is hit by any provision of Forest Laws or MMRD Act or/and Revenue Laws expressly or by implication.

Now turning to the last question, it is then postulated in para 28 that, 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?

To put it succinctly, it is then held by the Apex Court in para 29 that, In our opinion, all the five questions enumerated above did arise in the suit. 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.

Suffice it to say, it is then very rightly held in para 30 that, 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.

As a corollary, it is then aptly said in para 31 that, 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.

In a nutshell, it is then held in para 32 that, 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.

Interestingly enough, it is then clarified in para 33 that, 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. It is also then clarified further in para 34 that, 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.

More significantly, the Apex Court then makes it clear in para 35 that, 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.

It cannot be lost on us that para 36 then makes it clear that, 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. Lastly, it is then held in para 37 that, We request the High Court to expedite the hearing of the appeals preferably within 6 months.

All said and done, this latest, landmark and laudable judgment leaves no one in doubt that second appeal is not to be dismissed merely on the ground of concurrent findings of two Courts (whether of dismissal or decreeing of the suit). All the courts must always keep this in mind while deciding on such cases. This would be certainly the right approach also. This would save them also from getting a rap on the knuckles by the top court.

While disagreeing with the Rajasthan High Court Bench at Jaipur for dismissing the second appeal filed by the appellant on the ground of concurrent findings, the Apex Court set aside the Rajasthan High Court Jaipur Bench order and remanded the matter to consider it afresh. Very rightly so. There can be no denying it.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh