NARAN SENAPATI Vs. CUTTACK MUNICIPALITY

JUDGEMENT

(1.) A suit for declaration of exclusive right of the plaintiffs (appellant and respondents 4 to 6 in this appeal) over the suit property, for confirmation of possession and for permanent injunction against Cuttack Municipality (defendant No. 1 -respondent No. 1) and defendants 2 and 3 (respondents' 2 and 3) interfering with peaceful possession of the plaintiffs, and for mandatory injunction ' against defendants 2 and 3 (respondents 2 and 3) to close down the windows of northern side wall of their tiled roof house existing on the southern boundary of the disputed plot No. 179 of village Bidanasi, Cutback, having been dismissed and the dismissal by learned First Munsif, Cuttack having - been confirmed in appeal by the learned Additional Subordinate Judge, Cuttack, the present appeal has been file by plaintiff No. 5 under Section 100 of the Code of Civil Procedure, 1908 (in short. 'CPC')..

(2.) FACTUAL backdrop as presented by plaintiffs -appellants essentially is as follows : C.S. plot Nos. 178 and 179 measuring Ac. 0.284 decimals and Ac.0.007 decimals respectively, correspond to R. S. plot Nos. 203. 204 and 205. These are their private lands, which extend to the public road on its west, appertaining to C. S. plot No. 186. Plaintiffs and their ancestors had been possessing the aforesaid' two C. S. plots as the part and parcel of their homestead During the current settlement operations, though plot No. 178 corresponding to R. S plot Nos. 204 and 205 and a part of 203 was recorded in their names, plot No. 179 measuring Ac.0.007 decimals which forms a part of R. S. plot No. 203 was mistakenly recorded in the name of Cuttack Municipality. Notwithstanding this mistaken recording in the name of Cuttack Municipality, C.S. plot No. 179 all along is being used by them as a part and parcel of their hornestead, from the time of their ancestors. This mistake of recording came to the knowledge of the plaintiffs immediately prior to filing of the suit, and that is how a suit was necessary to be filed. It is further stated that the house plot of defendants 2 and 3 and the courtyard comprised in C. S. plot No. 181 abuts the public road on its east and the main public road standing on plot No. 186 is used by them for their ingress and egress to their residential house and court -yard. Taking advantage of the mistake of recording there was interference with the plaintiffs' possession. There was also re -construction of the mud built thatched house by defendants 2 and 3 on the southern boundary of the disputed plot, by opening two windows towards the suit plot on their southern house wall without any permission from defendant No. 1, which affected privacy and caused inconvenience to the plaintiffs. The Municipality and other defendants resisted the claim on the ground that the plaintiffs have no cause of action.

(3.) THE scope for interference in a second appeal under Section 100, CPC is very limited. . The scope of a first appeal differs from that of a second appeal in that the former is not limited to any particular: grounds of appeal such as those provided by Section 100, CPC. The provision restricting the grounds that may be taken in second appeal is based on public policy expressed in the maxim interest re publicae ut sit finis litum it concerns the State that there be an end to litigation. A second appeal will lie only on the ground of an error in law or procedure. - (See Kishanlal Biharilal Maheswari and Ors. v. Ramrao Hanumant Hao Patil and Anr.: AIR 1981 SC 1183). It will not lie merely on the ground of an error on a question of fact. The mere fact that possibly another conclusion could have been arrived at would not be a ground for interference under Section 100. Under the old Section 100. a second appeal could be filed on the following grounds, namely: (a) the decision was contrary to law; (b) the decision was contrary to usage having the force of law; (c) failure to determine some material issue of law; (d) failure to determine some material issue of usage having the force of law ; and (e) substantial error or defect in procedure which may possibly have affected the decision of the case on merits. Under the present section substituted by amendment in 1976. operative from 1 -2 -1977, a second appeal will lie only if the Court is satisfied that the case involves a substantial question of law. Unless the conclusions arrived at by the Courts below are perverse and unreasonable, and are against the weight of materials on record, there is no scope for interference.