Does Section 100 CPC permit interference with concurrent findings absent a substantial question of law?

Civil Procedure Code — Section 100 — second appeal — scope of interference with concurrent findings of fact — Limitation Act, 1963 — Articles 58 and 72 — suit for compensation for land used without acquisition — cause of action — no substantial question of law framed on limitation. Held: In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact recorded by the Trial Court and the First Appellate Court on appreciation of evidence, without a substantial question of law having been framed on that specific issue. (¶3, ¶3.2) Held further: The suit for compensation was barred by limitation under Articles 58 and 72 of the Limitation Act, since the cause of action — construction of the road and damage to the plaintiff's trees — arose in 1987, while the suit was filed only in 2003; the impugned judgment quashing the concurrent findings is unsustainable and is set aside, and the Trial Court's dismissal of the suit is restored. (¶3.2, ¶4)

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2.1 The appellants herein – original defendants contested the suit contending inter alia that the suit is barred by law of limitation; that the plaintiff was working as Mate in the Department and in fact the road was constructed on his request and as per the consent; the plaintiff waived off his claim of compensation as the road was constructed with his consent in the year 1987. The learned Trial Court framed the following issues:

“Issue no.l :­ Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP Issue no.2:­ Whether the plaintiff is entitled compensation as alleged? OPP Issue no. 3:­ Whether the suit is not maintainable? OPD Issue no. 4:­ Whether the suit is time barred? OPD Issue no. 5:­ Whether the plaintiff is estopped by his acts and conduct? OPD Issue No.6:­Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD Issue No. 7:­Whether the plaintiff has no cause of action? OPD 4 Issue No.8:­Whether the suit is bad for non­joinder of necessary parties? OPD Issue No.9:­ Relief”.

2.2 On appreciation of entire evidence on record and considering the fact that the road was constructed in the year 1987 and till 2002 no grievance was made by the plaintiff and as the cause of action arisen in the year 1987, the learned trial Court held the issue No.4 in favour of the defendants and held that the suit was barred by limitation taking into consideration Articles 58 and 72 of the Limitation Act. The learned Trial Court also held the issue Nos.3, 5 & 7 against the plaintiff. Consequently, the learned Trial Court dismissed the suit. The judgment and decree passed by the learned Trial Court dismissing the suit came to be confirmed by the First Appellate Court. By the impugned judgment and order the High Court has allowed the Second Appeal preferred by the original plaintiff. The High Court framed the following substantial question of law: "Whether the findings or judgment and decree passed by the Court below are a result of complete misreading, 5 misinterpretation of the evidence and material on record and against the settled position or law?" Holding aforesaid question of law in favour of the plaintiff the High Court without even considering the issue with respect to the limitation has allowed the Second Appeal and has quashed and set aside the concurrent findings recorded by both the Courts below and consequently has decreed the suit.

2.3 Learned counsel appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case the High Court has committed a very serious error in allowing the Second Appeal and quashing and setting aside the concurrent findings recorded by both the Courts below which as such were on appreciation of evidence on record.

2.4 It is submitted that the Hon’ble High Court has not properly appreciated the fact that as such the road in question was constructed in the year 1987 and that too with the help and consent of the plaintiff and that at no point of time till 6 2002, he made any grievance even with respect to non­ payment of the compensation. It is submitted that in the deposition the plaintiff witnesses including the plaintiff have specifically admitted that the road in question has been constructed in the year 1987. It is submitted that for the first time in the year 2002 the plaintiff in a representation to the Chief Minister made a grievance with respect to non­payment of the compensation. It is submitted that therefore when on appreciation of evidence on record both the courts below held that the suit was barred by limitation, the High Court has committed an error in interfering with the said findings in exercise of powers under Section 100 of the Code of Civil Procedure.

2.5 Making above submissions, it is prayed to allow the present appeals and quashed and set aside the impugned judgment and order passed by the High Court and restore the judgment and decree passed by the learned Trial Court dismissing the suit. 7

3.1 At this stage, it is required to be noted that it was the specific case on behalf of the defendants that the road was constructed with the help and consent of the plaintiff which is established and proved by the conduct on the part of the plaintiff mainly not raising any dispute till 2002.

3.2 From the impugned judgment and order passed by the High Court and the substantial question of law framed it is to be noted that the High Court has not framed any substantial question of law on the limitation and/or the suit being barred by limitation. The High Court has gone on general and broad principles. However, the High Court has not at all considered the real facts which are narrated hereinabove. Even the substantial question of law framed by the High Court also cannot be said to be a substantial question of law at all. Be that it may the fact remains that the road in question was constructed in the year 1987; the trees, if any, were 9 damaged/removed in the year 1987; the retaining/protection wall was constructed on the land of the plaintiff in the year 1987 and the suit was filed in the year 2003 and therefore the suit was barred by limitation considering Articles 58 and 72 of the Limitation Act, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.