Omprakash Mehar vs Smt. Sandhiya Bhosley
2023 Latest Caselaw 17327 MP

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      IN THE          HIGH COURT OF MADHYA
                          PRADESH
                         AT I N D O R E

                              BEFORE
      HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

                   ON THE 17th OF OCTOBER, 2023



                   SECOND APPEAL No. 367 of 2022

BETWEEN:-
OMPRAKASH MEHAR S/O KANHAIYALAL MEHAR, AGED ABOUT 48
YEARS, OCCUPATION: DRIVER 80, PANCHAMPUR SANWER ROAD,
UJJAIN (MADHYA PRADESH)
                                                       .....APPELLANT

(MS. REKHA SHRIVASTAVA, LEARNED COUNSEL FOR THE APPELLANT)

AND
1. SMT. SANDHIYA BHOSLEY W/O LATE SHRI VIJAY RAO BHOSLEY,
   AGED ABOUT 50 YEARS, OCCUPATION: TEACHER 149 ALAKHDHAM
   NAGAR, UJJAIN (MADHYA PRADESH)
2. KU. HARSHITA BHOSALE D/O LATE SHRI VIJAY RAV BHOSALE,
   AGED ABOUT 26 YEARS, OCCUPATION: STUDY 149, ALAKHDHAM
   NAGAR, UJJAIN (MADHYA PRADESH)
                                                    .....RESPONDENTS
___________________________________________________________
      This appeal coming on for admission this day, the court passed the
following order:

                              ORDER

This second appeal has been filed by the appellant being aggrieved by judgment and decree dated 12.10.2021 passed by 3 rd District Judge,

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Ujjain in RCA No.16-A/2021 whereby the first appellate court has upheld the decree and judgment dated 05.12.2020 passed by I-Civil Judge, Class- II, Ujjain in RCS No.26-A/2014.

02. Brief facts of the case are that appellant/plaintiff filed a suit for declaration and injunction on the basis of will executed in his favour.

03. Learned trial court vide judgment dated 05.12.2020 dismissed the suit filed by appellant/plaintiff on the ground that appellant failed to prove execution of will in his favour by deceased - Vijay Kumar Bhonsle. Against this, appeal filed by appellant/plaintiff was also dismissed by 3 rd District Judge, Ujjain vide judgment dated 12.10.2021 passed in RCA No.16-A/21. Against this, plaintiff has filed this second appeal.

04. Learned counsel for the appellant has submitted that appellant/plaintiff proved execution of will by producing son of attesting witness of will as one attesting witness did not appear to depose in the court despite plaintiff's all efforts to get him examined in the court and another attesting witness could not be examined on account of his death. Therefore, plaintiff examined son of attesting witness Mohammad Saleem, Mohammad Javid PW-2 who proved signature of his father as attesting witness- Mohammad Saleem on the will (Ex.P-1).

05. Learned counsel for the appellant after referring to Section 69 of Evidence Act and Section 63 (c) of Indian Succession Act and also relying upon judgment delivered in the case of Smt. Sulochana Tai Vs. Sri Sundar and another, ILR 2005 KAR 1131, submits that plaintiff succeeded in proving execution of will and despite that courts below have erred in dismissing the suit/appeal filed by appellant/plaintiff. In the instant case, substantial questions of law arise as mentioned in appeal memo for determination, hence, appeal be admitted for final hearing.

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06. I have heard learned counsel for the appellant/plaintiff and have perused the records of Courts below.

07. It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. both the Courts below have dismissed the suit/appeal filed by the appellant/plaintiff.

08. Therefore, question arises as to when this Court can interfere with the findings of facts arrived at by the Courts below. In this connection, I would like to refer to the law laid down by the Hon'ble Apex Court in the case of Chandrabhan (Deceased) through Lrs. And Others vs. Saraswati and Others reported in AIR 2022 SC 4601, wherein Hon'ble Apex Court in para 33(iii) has held as under:-

"33 (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well - recognized 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. When we refer to "decision" based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding".

09. Similarly in the case of Gurnam Singh (Dead) by legal representatives and Others vs. Lehna Singh (Dead) by legal representatives, Hon'ble Apex Court has held as under:-

"13.1.......However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and

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order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves 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 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the 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 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. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal".

10. In this connection, Ishwar Dass Jain (Dead) through LRs vs. Sohan Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434 may also be referred to. Paras 11 and 12 of the said judgment is relevant and is under:-

"11. 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. This principle has been laid down in a series of judgments of this Court in relation to section 100 CPC after the 1976 amendment. In Dilbagrai Punjabi vs. Sharad Chandra [1988 Supple. SCC 710], while dealing with a Second Appeal of 1978 decided by

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the Madhya Pradesh High Court on 20.8.81, L.M.Sharma, J. (as he then was) observed that "The Court (the first appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."

In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as `owner' of the property signed by the defendant were not considered by the first appellate Court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non- consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh vs. Nathu Singh [1992 (1) SCC 647], with reference to a Second Appeal of 1978 disposed of on 5.4.1991. Venkatachaliah, J. (as he then was) held:

"where the findings by the Court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."

Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar [1995 Suppl. (4) SCC 534], it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise, an order of the revenue Court - reliance on oral evidence was unjustified. In yet another case in Mehrunissa vs. Visham Kumari [1998 (2) SCC 295] arising out of Second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in Second Appeal of 1988 decided on 15.1.1996.

12. 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 Sri Chand Gupta vs. Gulzar Singh [1992 (1) SCC 143], it was held that the High Court was right in interfering in Second Appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on

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the defendant. The admission was inadmissible as against the defendant. This was also a Second Appeal of 1981 disposed of on 24.9.1985".

11. Evidently, appellant/plaintiff has filed present suit for declaration and injunction on the basis of will and as per provisions of Section 68 and 69 of Evidence Act, execution of will has to be proved by at least one attesting witness. Admittedly, in the instant case, appellant/plaintiff has not examined any attesting witness to prove execution of will. Appellant's case is that one attesting witness was dead and another attesting witness could not be found/did not appear to depose in the court, therefore, he is has examined son of one attesting witness to prove signature of attesting witness.

12. From record of the case, it is not clear as to when one attesting witness Mohammad Saleem expired. As per submissions made by learned counsel for appellant, one attesting witness (Amar Singh) did not come to the court to depose after all efforts of appellant/plaintiff. But it is evident from record of the case that appellant/plaintiff did not take help of court in securing the presence of attesting witness-Amar singh to prove execution of will. No application was preferred before the trial court to secure presence of above attesting witness. It is not shown from the record that whereabouts of above attesting witness (Amar Singh) were not known to appellant/plaintiff. Therefore, in view of above, it cannot be said that appellant was unable to examine any attesting witness, as no attesting witness could be found. Therefore, in this Court's opinion no fault can be found with the findings recorded by courts below in concluding that appellant/plaintiff has failed to prove execution of will as per law.

13. If pleadings of the parties and evidence adduced by the parties and

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the impugned judgments passed by the Courts below are considered in light of the above legal principles/legal provisions reiterated in aforesaid judgments, then, in this Court's considered opinion, the findings of facts concurrently recorded by the Courts below are not liable to be interfered with in the instant case and it cannot be said that Courts below have ignored any material evidence or has acted on no evidence or Courts have drawn wrong inferences from the proved facts etc. Further, it cannot be said that evidence taken as a whole, is not reasonably capable of supporting the findings. It can also be not said that the findings of Courts below are based on inadmissible evidence.

14. A perusal of the impugned judgments and decree passed by the Courts below reveal that they are well reasoned and have been passed after due consideration of oral as well as documentary evidence on record. Learned counsel for the appellant/plaintiff has failed to show that how the findings of facts recorded by the Courts below are illegal, perverse and based on no evidence etc. The learned Courts below have legally and rightly dealt with the issues involved in the matter and have recorded correct findings of facts. Hence, in view of the facts of the case, principles laid down in the case of Smt. Sulochana Tai (supra) do not apply to the facts of this case.

15. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of defendant are fully justified by the evidence on record. Concurrent findings recorded by the Courts below are not based on misreading or mis- appreciation of evidence nor it is shown to be illegal or perverse in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant

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second appeal. Accordingly, the appeal is dismissed in limine.

16. A copy of this order along with record be sent back to the courts below for information and its compliance.

(ACHAL KUMAR PALIWAL ) JUDGE N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2023.10.18 19:27:25 +05'30'