Pramod Kumar vs Ratan Singh
2025 Latest Caselaw 4069 MP

Madhya Pradesh High Court

Pramod Kumar vs Ratan Singh on 6 February, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

                                                                 1                                                  S.A.No.1093/2020


              IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT G WA L I O R
                                                               BEFORE
                         HON'BLE SHRI JUSTICE G. S. AHLUWALIA

                                      ON THE 6th OF FEBRUARY, 2025

                                     SECOND APPEAL No. 1093 of 2020
                                              PRAMOD KUMAR
                                                   Versus
                                          RATAN SINGH AND OTHERS
__________________________________________________________________________________________________________________________________________________




Appearance:
     Shri Abhishek Singh Bhadoriya and Shri Rohit Bansal- Advocates for appellant.
     Shri Ravindra Dixit- Government Advocate for the State.
__________________________________________________________________________________________________________________________________________________




                                                        JUDGMENT

This second appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 25/02/2020 passed by Second Additional District Judge, Karera, District Shivpuri in Civil Appeal No.34-A/2018 arising out of judgment and decree dated 27/06/2018 passed by Civil Judge, Class-I Karera, District Shivpuri in Civil Suit No.63-A/2014.

2. The appellant had filed a suit for declaration of title and permanent injunction on the basis of Will executed by deceased Pehalwan. According to appellant, Will was executed on 28/08/2001 (Ex.P-8) and it was got registered. It was also the case of appellant that defendant No.1 has got his name mutated in the revenue records by order dated 30/06/2008 and defendant No.3 has also got the order of partition dated 12/01/2007 and accordingly, it was prayed that aforesaid two orders are null and void to the extent of share of appellant.

3. Defendant No.1 filed his written statement and denied the execution of Will dated 28/08/2001 (Ex.P-8) in favour of appellant. It was the case of defendant No.1 that the deceased Pehalwan has executed a Will in his favour on 31/12/2001 (Ex.D-1/D.W.-1) and accordingly, his name was mutated in the revenue records. The Trial Court after recording the evidence of parties dismissed the suit filed by appellant on the ground that appellant has failed to prove the execution of Will dated 28/08/2001 (Ex.P-8).

4. Being aggrieved by the said judgment and decree, appellant preferred an appeal which too has been dismissed by Appellate Court by order dated 25/02/2020 passed in Civil Appeal No.34-A/2018.

5. Challenging the judgments and decrees passed by Courts below, it is submitted by counsel for appellant that defendant No.1 had relied upon notarized Will dated 31/12/2001 (Ex.D-1/D.W.-1). In the said Will, it was mentioned that Will dated 28/07/2001 is hereby revoked. It is submitted that in view of said admission in Will dated 31/12/2001 (Ex.D-1/D.W.-1), the Courts below committed a material illegality by putting heavy burden on appellant to prove the execution of Will. It is submitted that in the light of such admission, it was not necessary for the appellant to prove the Will dated 28/08/2001 (Ex.P-8) and to buttress his contentions counsel for appellant has relied upon the judgment passed by the Supreme Court in the case of Balathandayutham and Another Vs. Ezhilarasan reported in (2010) 5 SCC

770.

6. Heard the learned counsel for appellant.

7. The Supreme Court in the case of Balathandayutham (supra) has held as under:-

"5. In the suit, the stand of the first appellant was that the will dated 25-9-1972 was not genuine and the said will had been revoked by Ramachandran by another will dated 25-4-1980 and also thereafter by another will dated 2-5-1980. Both the appellants

claimed their rights under the so-called subsequent wills.

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8. On these facts the learned first appellate court held that when the execution of a will asserted by one party is denied by the other party, then the burden is on the party who relies on the will to prove its execution. But when the execution of the will is not denied then no burden is cast on the party who relies on a will to prove its execution. Relying on the aforesaid principle, the C first appellate court held, and in our view rightly, that the existence of the first will dated 25-9-1972 has been admitted. But the appellants' case is that the same has been revoked. However, there is no attesting witness to prove Ext. B-19 dated 2-5-1980 and Ext. B-20 dated 25-4-1980, which are the two subsequent wills."

8. Thus, the moot question for consideration is as to whether the Will dated 28/08/2001 (Ex.P-8) was revoked by testator by executing the Will dated 31/12/2001 (Ex.D-1/D.W.-1) or not and whether the subsequent Will executed on 31/12/2001 (Ex.D-1/D.W.-1) admits the execution of Will dated 28/08/2001 (Ex.P-8) or not ?

9. In Will dated 31/12/2001 (Ex.D-1/D.W.-1), it is mentioned that Will dated 28/07/2001 is hereby revoked. The plaintiff in his plaint has specifically stated that Will dated 28/08/2001 (Ex.P-8) was executed in his favour. In his evidence also Pramod Kumar (P.W.1), claimed that Will dated 28/08/2001 (Ex.P-8) was executed by testator Pehalwan in his favour. Appellant has relied upon the Will dated 28/08/2001 (Ex.P-8). The aforesaid Will was registered on 28/08/2001. However, by drawing attention of this Court towards the last line of Will dated 28/08/2001 (Ex.P-8), it is submitted by counsel for appellant that aforesaid Will was drafted and typed on 28/07/2001, therefore, the testator might be under a false impression that he had executed the Will on 28/07/2001.

10. Accordingly, it is prayed that although the Will dated 28/07/2001 might have been mentioned in Will dated 31/12/2001 (Ex.D-1/D.W.-1) but in fact

the testator was referring to Will dated 28/08/2001 (Ex.P-8).

11. Considered the submissions made by counsel for appellant.

12. Appellant in his plaint had specifically mentioned that the Will was executed on 28/08/2001. It is not his case that Will was drafted and prepared on 28/07/2001. Even in evidence of Pramod Kumar (P.W.-1), it is nowhere alleged that Will dated 28/08/2001 (Ex.P-8) was prepared and typed on 28/07/2001 and it was got registered on 28/08/2001. Even otherwise, from Will dated 28/08/2001 (Ex.P-8), it is clear that there is a over typing on the month. It appears that initial, it was typed as 28/08/2001 and subsequently it was made 28/07/2001 by over typing. This over typing does not contain the short signature of any witness. Even the appellant has not clarified that why this over typing was done either in his plaint or in his evidence. This over typing must have been done with a view to show that in Will dated 31/12/2001, the testator was referring to Will dated 28/08/2001 and not 28/07/2001. Therefore, it is clear that reference to Will dated 28/07/2001 in Will dated 31/12/2001 (Ex.D-1/D.W.-1) does not refer to Will dated 28/08/2001 (Ex.P-8).

13. Under these circumstances, this Court is unable to hold that by revoking the Will dated 28/07/2001 the testator had admitted execution of Will dated 28/08/2001 (Ex.P-8). It is well established principle of law that even if an erroneous finding of fact has been recorded by Courts below, then this Court while exercising power under Section 100 of C.P.C. cannot interfere unless and until the perversity is pointed out.

14. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-

13. A second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC 748 : AIR 1998 SC 2730] , this Court held that existence of the substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether the need of the landlord was bona fide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record.

15. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law". Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the realm of jurisprudence, has been explained as under:

"A question of fact is one capable of being answered by way of demonstration--a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong."

(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC 682] , at SCC p. 705, para 34.)

16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :

AIR 1976 SC 830] this Court held that whether the trial court should not have exercised its jurisdiction differently, is not a question of law or a substantial question of law and, therefore, the second appeal cannot be entertained by the High Court on this ground.

17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262] this Court held that the question whether the lower court's finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with the provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in the second appeal.

18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR 1998 SC 3063] , this Court held that question of reappreciation of

evidence and framing the substantial question as to whether the findings relating to the factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120] this Court held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was deciding the first appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.

20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC 1428] this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. The Court observed as under : (SCC pp. 637-38, para 6) "6. ... While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter--it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669] this Court reiterated the principle that interference in the second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to a substantial question of law.

22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court considered the scope of appeal under Section 30 of the

Workmen's Compensation Act, 1923 and held as under : (SCC pp. 679-80, paras 39-40 & 42) "39. Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal.

40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. ...

***

42. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record." Similar view has been reiterated by this Court in Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .

23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this Court while dealing with the provisions of Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, held that the bona fide personal need of the landlord is a question of fact and should not be normally interfered with.

24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. [Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ] 25 [Ed. : Para 25 corrected vide Official Corrigendum No. F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the subject emerges to the effect that second appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts below

are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent."

15. Admittedly, the appellant could not examine any of his attesting witness in support of execution of Will dated 28/08/2001 (Ex.P-8). Under these circumstances, this Court does not find any perversity in the concurrent findings of facts recorded by the Courts below to the effect that appellant has failed to prove the execution of Will dated 28/08/2001 (Ex.P-8) in his favour.

16. Ex-consequenti, the judgment and decree dated 25/02/2020 passed by Second Additional District Judge, Karera, District Shivpuri in Civil Appeal No.34-A/2018 arising out of judgment and decree dated 27/06/2018 passed by Civil Judge, Class-I Karera, District Shivpuri in Civil Suit No.63-A/2014 are hereby affirmed.

17. As no substantial question of law arises in the present appeal, accordingly, appeal fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

PjS/-

PRINCEE BARAIYA 2025.02.08 12:04:51 +05'30'