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TMI Blog2019 (8) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed 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 - 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 and Ors. v. Dashrath Narayan Chilwelkar and 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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