Shrimangal Sen vs Mina Devi And Anr.
1969 Latest Caselaw 79 Del

JUDGMENT

Inder Dev Dua, J.

(1) This regular second appeal is directed against the judgment and decree of the learned Additional Senior Subordinate Judge (with enhanced appellate powers) dismissing two appeals (one filled by Shri Ram Kishore, defendant No. 2 in the trial Court and the other filed by the present appellant Shri Mangal Sen, defendant No. 1 in the trial court) and affirming the judgment and decree of the trial Court.

(2) These two appeals arise out of a suit instituted by Smt. Mina Devi, widow of Late Lala Musaddi Lal, for dissolution of partnership and rendition of accounts. Lala Musaddi Lal had died on 25-1-1962 and Shri Mangal Sen, the present appellant, is the brother of the deceased and Shri Ram Kishore, defendant No. 2, the son of the deceased from another wife.

(3) The suit contested, the pleadings of the parties gave rise to the following five issues :- "1. Whether there was no partnership between Musaddi Lal and defendants at the time of the death of Musaddi Lal? 2. What were the terms of the alleged partnership? 3. Whether Musaddi Lal was sole owner of tenancy rights and industrial electric connection? 4. Whether Musaddi Lal made a valid will in favor of the plaintiff? If so, its effect ? 5. Whether the plaintiff is entitled to the dissolution of partnership ?

 (4) The trial court discussed issues Nos. 1 and 2 together and expressed its conclusion in the following words :-    "from the evidence discussed heretofore it is proved beyond doubt that a partnership existed between Musaddi Lal and the defendants, the terms whereof are nto in any serious dispute. It is also proved beyond doubt in my view that it was only Musaddi Lal who was holding the tenancy in his name. That conclusion is irresistible in view of the evidence that Musaddi Lal was doing business in the name of Musaddi Lal Ram Kishore in the premises in dispute even at a time when the defendant No. 2 was a small child. I, therefore, hold both these issues in favor of the plaintiff".  

 (5) Issue No. 2 was decided in the following words :-    "THEterms of the partnership as already stated heretofore are nto disputed seriously. I will thus hold that the terms are the same as mentioned in the plaint. This issue is also held in favor of the plaintiff.   

 (6) Issue No. 4 having also been decided in favor of the plaintiff, it was observed under issue No. 5 that there was no reason shown why the plaintiff was disentitled to claim dissolution of partnership. A preliminary decree for rendition of accounts and dissolution of partnership was in the circumstances, granted and Shri Vishav Mohan Issar, Advocate was appointed a Local Commissioner to go through the accounts and submit his report.   

(7) Both the defendants appealed separately and both the appeals were dismissed by the lower Appellate Court by a common judgment. In regard to the appeal by Shri Mangal Sen (the present appellant), according to the lower Appellate Court, the finding on issue No. 4 was assailed and due execution of the will Ex. P. 2 was questioned. The lower Appellate Court dealt with this challenge in the following words :- "Iconsider that there is no force in this contention inasmuch as the finding of the learned trial Court on issue No. 4 is also unassailable. The plaintiff examined a number of witnesses and also came up in the witnessbox in the proof of will Ex. P. 2. Shri Onkar Nath P. W. 3. an attesting witness of the will, stated that Musaddi Lal affixed his signatures marked E and F in his presence. His statement would also reveal that he identified Mussadi Lal before the Sub-Registrar, who had read out the will. Salig Ram P. W. 4 stated that he scribed the will Ex. Public Witness 4/10 is the copy of the entry of his register. He further stated that the witnesses signed the will in the office of the Sub-Registrar and that the witnesses were told about the contents of the will and Musaddi Lal had admitted his signatures and the factum of execution of the will by him in their presence. Sham Narain, Advocate Public Witness 8's statement would reveal that he identified Musaddi Lal before the Sub- Registrar and that Musaddi Lal had admitted the factum of execution of the will before him and before the SubRegistrar. This evidence is quite satisfactory and I see no ground to interfere in the finding of the learned trial court in regard to issue No. 4".

(8) On second appeal in this Court, Shri H. K. L. Sabharwal. the learned counsel for the appellant Shri Mangal Sain, has submitted that the judgment and decree of the Court below is vitiated because the conclusion are based on no evidence. He has, in support of this submission, asserted that in the judgment of the lower Appellate Court, there is no reference to any evidence. I am unable to agree with his submission. The lower Appellate Court dealt with the contentions raised at the Bar. It is obvious that the learned counsel for the appellant, apart from the challenge to issue No. 4 which has already been noticed by me, relied on some arbitration clause in the partnership-deed and on the plaintiff's plea that the same had become inoperative. Relying on this submission, it seems to have been argued in the Court below that there was no partnership between the parties before the Court. This contention was repelled with the following observations:- "INthis respect that statement of the learned counsel for the plaintiff before striking the issues can be referred to. It was in view of the said statement that the defendants did nto pursue their application filed under section 34 of the Arbitration Act. Though the defendant in the written statement denied the terms of partnership as contained in . para No. 7 of the plaint, yet in the reply filed by the defendant to the application moved by the plaintiff under Order 40, Rule 1, Civil Procedure Code it was admitted that the husband of the plaintiff was a partner in Bharat Hosiery Industries and that the defendants had never refused to get the account-books of the partnership inspected. In sum and substance in the said reply the existence of partnership was admitted. On the face of this admission made by the defendants-appellants it now does nto lie in their mouth to deny the continuance of partnership. When the partnership was continued then it is to be taken to have continued on the same terms as were so mentioned in partnership agreement dated 1-4-59 which is Ex. P. 3."

(9) After referring to the terms contained in Ex. P. 3, the Court upheld the view of the Court of first instance repelling the contention of the defendant-appellants that the real intention of the parties was merely to pay Rs. 200.00 to Musaddi Lal as rent and his share was inserted in the partnership-deed only in order to save the consequences of subletting. On this view, the findings of the trial Court on issue Nos. 1 and 2 were affirmed. This judgment, in my opinion, cannto be held to be vitiated on the basis of the argument that it is based on no evidence. It may be recalled that the lower Appellate Court had affirmed the conclusions of the Court of first instance and it was expected only to deal with the points raised on behalf of the appellants in questioning the correctness of the impugned judgment and decree. It was no function of the lower Appellate Court itself suo motu to go into the correctness or otherwise of the conclusions of the Court of first instance, if they were nto challenged in arguments addressed to it. The points raised have been very satisfactorily dealt with by the Appellate Court below and I do nto find any infirmity justifying interference on second appeal. As observed by the Supreme Court in Deity Pattabhiramaswamy v. S. Hanymayya, to which the respondents learned counsel has drawn my attention, the provisions of section 100, Civil P. C. are clear and unimbiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. According to this decision, to dispose of a second appeal as if it is a first appeal, apart from being tainted with jurisdictional infirmity, introduces a gambling element in the litigation and confusion in the mind of the litigant public. In Raraha Singh v. Achal Singh the High Court was held incompetent to re-appreciate the evidence when the lower Appellate Court had recorded definite finding in the light of oral evidence and surrounding circumstances. In S. Santokh Singh v. Bhai Sri Ram Singh it was observed that unless there is an error of law in arriving at the conclusion on a question of mixed law and fact, the conclusion though based upon the primary evidentiary facts is incapable of being challenged on second Appeal. Errors in appreciating documentary evidence or errors in drawing inferences are nto errors of law and conclusions of fact, even though based on circumstances, are generally binding on the High Court on second appeal. In that case, the conclusion on the question of nonexistence of partnership was held to be a finding of fact, nto open to challenge on second appeal when the decision was nto vitiated by any error of law. There clearly exists on the present record legally admissible evidence on which the conclusions of fact of the lower Appellate Court are supportable. It is, therefore, nto open to this Court to examine the decision of the Court below, even if the same be considered to be unsatisfactory. In spite of seemingly persuasive arguments on behalf of the appellant's learned counsel, no substantial error or defect in procedure or any other legal infirmity in the judgment of the lower Appellate Court has been pointed out. It may incidentally be pointed out that the onus is on the appellant to show that the judgment and decree appealed from is wrong, and as a general rule, the Appellate Court is under no legal obligation to raise points nto urged by the aggrieved party at the hearing.

(10) Reliance has been placed on a decision of the Bombay High Court in Chimaurain v. Jayantilal for the purpose of showing that the question whether there is a partnership is a mixed question of law and fact. But this submission cannto avail the appellant because unless the conclusion on a mixed question of fact and law is shown to be tainted with a legal infirmity, the same must be held to be binding on the Court on second appeal. As observed earlier, no such infirmity has been made out.

(11) Before concluding, I may notice one point raised by Shri Y. K. Sabharwal, appearing on behalf of respondent No. 2., Shri Ram Kishore. The learned counsel has suggested from the Bar that he has also filed a second appeal in this Court which has nto yet been admitted by the Motion Bench. According to him, some prejudice would be caused to his client if the present appeal is disposed of before his appeal is heard. I am wholly unable to persuade myself to adjourn the present appeal on the ground that one of the respondents to this appeal has also since presented an appeal against the impugned judgment and decree which has nto yet been set down for hearing before the Motion Bench. This appeal accordingly fails and is dismissed but without any order as to costs. In case Shri Y. K. Sabharwal has filed any other appeal, that would obviously be disposed of in accordance with law.