Rameshwar Prasad & Another vs Smt. Shanti Devi & Others
2021 Latest Caselaw 7348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- SECOND APPEAL No. - 111 of 2021
 

 
Appellant :- Rameshwar Prasad & Another
 
Respondent :- Smt. Shanti Devi & Others
 
Counsel for Appellant :- Mohammad Aslam Khan
 
Counsel for Respondent :- Virendra Mishra
 

 
Hon'ble Jaspreet Singh,J.

1. The Court has convened through video conferencing.

2. Heard Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohammad Aslam Khan, learned counsel for the appellants and Shri Virendra Mishra, learned counsel for the caveator/respondents.

3. The instant second appeal has been preferred against the concurrent judgment and decree dated 19.02.2015 passed by the Additional Civil Judge (Junior Division) Court No.34, Lucknow in R.S. No.430/1983 whereby the suit for permanent injunction of the plaintiffs-appellants was dismissed. The plaintiffs-appellants preferred a regular civil appeal before the District Judge, Lucknow, which was registered as Regular Civil Appeal No.38/2015 which also came to be dismissed by the impugned judgment and decree dated 20.03.2021 passed by Special Judge (P.C. Act)-I, Lucknow, affirming the judgment and decree passed by the trial court.

4. Shri Mohd. Arif Khan, learned Senior Advocate submits that the two courts below have committed an error in failing to notice that the possession of the plaintiffs-appellants was proved over the property in question and thus, the suit of the plaintiffs-appellants seeking permanent injunction could not have been dismissed.

5. He has further urged that the defendants-respondents had set up a will said to have executed by late Shri Fakirey Lal dated 14.06.1983, however, neither the said will was proved in accordance with law nor Shri Fakirey Lal had the testamentary capacity to execute the will in first place. He has further urged that there were suspicious circumstances which shrouded the execution and attestation of the alleged will, hence, the burden to prove the will was on the propounder i.e. respondents and to have clearly dispelled such suspicious circumstances and in absence of doing so, the said will could not have been treated to have been proved in accordance with law and relying upon the same, the two courts below have committed grave errors.

6. It is also urged that the property in question which is the subject matter of the will had already vested in the State in view of the Notification under Section 10 of the U.P. Land (Ceiling and Regulation) Act, 1976. Once, the said land had vested in the government, it was not open for the testator namely Shri Fakirey Lal to execute the will in respect of the said property, hence, all this matter has not been appreciated or considered by the two courts below resulting in sheer miscarriage of justice.

7. Learned Senior Counsel for the appellants has also urged that the appellants before the first appellate Court had filed documentary evidence establishing their case along with an application under Order 41 Rule 27 CPC, which was allowed by the appellate Court but while delivering the judgment the effect of such documents have not been considered causing irreparable injury. It is urged that the aforesaid second appeal involves substantial questions of law which have been proposed in the memo of appeal.

8. Shri Virendra Mishra, learned counsel for the respondents-defendants vehemently opposes the submissions made by the learned Senior Advocate for the appellants. Shri Mishra has submitted that the property in question originally belonged to Shri Fakirey Lal, who is the father of the appellants. The property was self-acquired property and since the wife of Shri Fakirey Lal had expired, he remarried and the respondents are the children from his second wife.

9. It has been further urged that Shri Fakirey Lal had executed a registered will on 14.06.1983. The said will was duly proved in accordance with the provisions contained in Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act and the attesting witness namely Balveer Pandey was examined. The said witness clearly narrated the entire incident of the execution and attestation as well as registration of the will before the Sub-Registrar. The said witness was cross-examined by the plaintiffs-appellants, however, no discrepancy was elicited from his testimony. Both the courts have relied upon the testimony of the said witness and dealt with the aforesaid aspect of the matter in detail and have recorded a finding that the will executed by Shri Fakirey Lal was proved.

10. He further submits that the allegations made by the plaintiffs-appellants that the property was ancestral coupled with the fact that the land stood vested in terms of the provisions of U.P. Land (Ceiling and Regulation) Act, 1976, the said facts were never pleaded in the suit. The plaintiffs-appellants also introduced the said facts only through evidence without any pleadings and for the said reasons, the two courts have held that without pleadings no amount of evidence could be looked into.

11. It has been further argued that so far as the will is concerned, despite the defendants having pleaded in their written statement the factum of the will in their favour yet throughout trial and even up till the first appellate court, the said will was never challenged. Learned counsel for the respondents has further urged that the reasons for not challenging the said will is that Shri Fakirey Lal had bequeathed some part of the property to his grand-sons (the children of the present appellants). It is for the said reason that the plaintiffs-appellants only contested the suit for permanent injunction without assailing the will and now having faced with the concurrent findings of fact which have been recorded on the basis of evidence led by the parties, the same is not susceptible to interference by this Court under Section 100 CPC, hence, the second appeal deserves to be dismissed.

12. The Court has heard learned counsel for the parties at length on admission and has also perused the material on record.

13. From the perusal of the record, it would indicate that the present appellants, who are the sons of Shri Fakirey Lal instituted a suit for permanent injunction wherein it was alleged that Shri Fakirey Lal is about 80 years and because of his old age, he is not keeping good health. He is alleged to have expired on 01.09.1983. It was further pleaded that the plaintiffs-appellants are in possession of the property in question which has been described in Para-3 of the plaint in suit. It was also alleged that the defendants are interfering in the possession and use of the plaintiffs, hence, the suit for injunction was filed which was registered as R.S. No.430/1983.

14. The defendants-respondents filed their written statement and stated that the property in question belonged to Shri Fakirey Lal, who was its exclusive owner in possession. He had executed a registered will dated 14.06.1983. It was further stated that the wife of Shri Fakirey Lal namely Smt. Sarju Devi had expired. The present appellants are the sons of Shri Fakirey Lal and Smt. Sarju Devi. Since, both the sons had animosity with their father, hence Shri Fakirey Lal remarried with Madhu Rani and was living with her.

15. It is further pleaded that some part of the property which was bequeathed in favour of the grand-sons of Shri Fakirey Lal is in possession of the plaintiffs-appellants, however, the remaining part which was bequeathed to Madhu Rani, the same is in possession of the defendants, who have adequate title to the aforesaid property on the basis of the will and in absence of the possession and without assailing the will the suit of permanent injunction against the defendants is liable to be dismissed.

16. On the basis of the pleadings, the trial court framed six issues. Considering the issues No.1 and 5, which related to the fact whether the plaintiffs are the owners in possession of the property in question and whether Shri Fakirey Lal had executed the will in favour of the defendants as pleaded in Para-14 and if so its effect was considered.

17. The trial court recorded a finding that the will executed by Shri Fakirey Lal was duly registered before the Sub-Registrar and it was proved in accordance with law. Balveer Pandey was examined as DW-1, who gave a detail statement narrating the execution, attestation as well as registration of the will. The testimony of the said witness was duly considered and it found favour with the trial court and it concluded that the will has been proved by the said witness in accordance with law. The will was never challenged by the plaintiffs. It was also noticed that the plaintiffs despite contesting the suit did not assail or challenge the said will. In absence of any challenge to the will, the rights of the defendants over the property bequeathed to them was established and thus, the plaintiffs were not entitled to get an injunction against the defendants.

18. The trial court also noticed the plea of the plaintiffs-appellants alleging that the property in question was ancestral. This fact was disputed by the defendants, however, the plaintiffs-appellants could not indicate or bring on record any evidence to show that the property was ancestral rather in the cross-examination, the plaintiffs-appellants clearly admitted that they had never filed any suit claiming rights of co-ownership in respect of the property in question. Hence, the finding was recorded that the property was self-acquired property of Shri Fakirey Lal.

19. With the aforesaid findings, the suit of the plaintiffs-appellants for permanent injunction was dismissed by means of the judgment and decree dated 19.02.2015.

20. The first appellate Court also considered the evidences as well as the respective submissions of the parties and formulated points for determination and thereafter held that the plaintiffs-appellants at no point of time ever claimed co-ownership rights over the property in question nor any evidence was led before the Court to the aforesaid effect. The lower appellate Court also held that the will as propounded by the defendants-respondents was duly proved. The evidence of Balveer Pandey was considered in detail by the lower appellate Court. The lower appellate Court has also taken note of the alleged suspicious circumstances, which have been pointed out by the learned counsel for the plaintiffs-appellants, but held that non mentioning of ground to exclude the appellants and mentioning incorrect plot number (as alleged by the appellants) the same does not amount to any suspicious circumstances regarding the execution and attestation of the will. Minor discrepancies are not going to affect the sanctity of the will.

21. It also recorded a finding that the will clearly indicated the reasons why the testator namely Shri Fakirey Lal excluded his sons and it is mentioned in the will that the appellants harboured animosity with their father. The Court has also noticed the statement of the plaintiff's witness, who himself admitted that he had initially instituted a suit against his father bearing Case No.1173, however, the said suit was never decreed nor any rights were crystallized in favour of the plaintiffs-appellants. Under the aforesaid circumstances, the appellate court agreed with the findings recorded by the trial court that the property in question was self-acquired property of Shri Fakirey Lal and that he had bequeathed the same by virtue of registered will which was duly proved in accordance with law.

22. The lower appellate Court also considered the submissions of the plaintiffs-appellants that the property could not have been bequeathed as alleged by the appellants in view of the vesting of the property with the government under the provisions of U.P. Land (Ceiling and Regulation) Act, 1976. The lower appellate Court also noticed the submission that of some plots in question it was alleged that Shri Fakirey Lal was a Sirdar, hence in terms of Section 169 of the U.P. Z.A. & L.R. Act, he did not have the right to bequeath the same by will.

23. Considering the aforesaid submissions, the lower appellate Court noticed that first the plaintiffs-appellants had not made any pleadings in respect thereto. In absence of any pleadings, no amount of evidence can be looked. Even otherwise, it held that the will was executed in the year 1983 whereas in the year 1977 by virtue of amendment in the U.P. Z.A. & L.R. Act all Sirdar were conferred with the rights of Bhumidhar, hence, the said arguments raised by the plaintiffs-appellants did not find favour.

24. The lower appellate Court also noticed that neither there was any pleadings nor any evidence to the effect regarding vesting of the land with the State in terms of U.P. Land (Ceiling and Regulation) Act, 1976. The lower appellate Court also noticed that even as per the arguments of the plaintiffs-appellants if the land had vested with the State in terms of U.P. Land (Ceiling and Regulation) Act, 1976 but after repeal in the year 1999, the same would revert back but it is wrongly alleged by the appellants that upon reversion it would revert to the appellants rather it would revert to the persons in whose favour the land was bequeathed i.e. the defendants-respondents. Thus, the submissions of the learned counsel for the appellants did not find favour and the appeal of the appellants before the lower appellate Court was also dismissed vide judgment dated 20.03.2021.

25. Considering the aforesaid aspect of the matter and the issues raised by the learned Senior Advocate, this Court finds that on all the aforesaid issues, the two courts have recorded findings of fact upon due consideration of the evidence.

26. This Court finds that the plaintiffs-appellants had filed a suit for permanent injunction and contested the same throughout without adding a relief of declaration as the defendants had already setup a title in themselves in terms of the will executed by Shri Fakirey Lal. In view of the decision of the Apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. & Ors., AIR (2008) 4 SCC 594 the suit for simpliciter injunction could not be maintained by the plaintiffs.

27. The issue regarding non-proving of the will of Shri Fakirey Lal is also contrary to the material on record inasmuch as both the courts have considered the evidence led by Balveer Pandey, the attesting witness has proved the will. That being a findings of fact affirmed by the two courts cannot be assailed in second appeal and moreover the learned counsel for the appellants has failed to point out any perversity.

28. The other submissions of learned counsel for the appellants have been considered and it is found that there is no whisper in the pleadings regarding the property having vested in the State nor there is any averment as to why the said will is suspicious nor the basis of the arguments of the appellants here has any foundation in the pleadings and in absence of any pleadings to the aforesaid effect no amount of evidence filed by the plaintiffs-appellants even in terms of Order 41 Rule 27 CPC can be considered and merely because the said application was allowed and taken on record will not entitle the lower appellate Court to deal with the same unless the pleadings to support the said evidence is available. Thus, the lower appellate Court has rightly noticed that in absence of any pleadings, no amount of evidence can be looked into.

29. The Apex Court in the case of Nazir Mohamed vs. J. Kamala and Others, 2020 SCC OnLine SC 676 has held as under:-

"36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam, AIR 1963 SC 302. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.

37. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

30. In the case of State of Rajasthan & Ors. vs. Shiv Dayal & Anr., (2019) 8 SCC 637, the Apex Court held as under:-

"16. 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 dehors 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 v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)"

31. In Gurnam Singh (Dead) by Legal Representatives & Ors. vs. Lehna Singh (Dead) by Legal Representatives, (2019) 7 SCC 641, the Apex Court held as under:-

"14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain [Ishwar Dass Jain v.Sohan Lal, (2000) 1 SCC 434] . In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437)

"Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

xxx -------- xxx --------xxx --------xxx --------xxx --------xxx

19. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the courts below and/or the first appellate court and if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. We have noticed and even as repeatedly observed by this Court and even in Narayanan Rajendran v. Lekshmy Sarojini [Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264 : (2009) 2 SCC (Civ) 500] , despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the first appellate court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

32. In Thulasidhara & Anr. vs. Narayanappa & Ors., (2019) 6 SCC 409, the Apex Court held as under:-

"7.1. . . . It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC.

7.2. As observed and held by this Court in Kondiba Dagadu Kadam v.Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

or

(ii) Contrary to the law as pronounced by the Apex Court;

or

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."

33. Taking a complete overall view of the matter, this Court finds that the second appeal is concluded by concurrent findings of fact which do not require any interference by this Court. This Court is satisfied that no substantial question of law as argued and formulated by the appellants in the memo of second appeal is involved in this second appeal.

34. The appeal is devoid of merits and is dismissed at the admission stage. However, considering the facts and circumstances, there shall be no order as to cost.

35. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.

36. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 09.07.2021

Rakesh/-