Madhya Pradesh High Court
Prabhudayal vs Mohan on 29 January, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 29th OF JANUARY, 2025
SECOND APPEAL No. 123 of 2017
PRABHUDAYAL AND OTHERS
Versus
MOHAN AND OTHERS
Appearance:
Shri Rajnikant Khare, learned counsel for the appellants.
Shri Aditya Choubey, learned GA for the respondent No.6/State.
ORDER
This second appeal has been filed by the appellants/defendants
under Section 100 of CPC against the judgment and decree dated
26.10.2016 passed in Civil Appeal No.15A/2016 by Additional
District Judge to the Court of First Additional District Judge,
Tikamgarh arising out of judgment and decree dated 29.02.2016
passed in Civil Suit No.36A/2014 by Fifth Civil Judge, Class-II,
Tikamgarh.
2. Brief facts of the case are that plaintiff filed a suit for
declaration of title, permanent injunction and for declaring sale deed
dated 14.06.2006 null and void on the ground that owner of the
disputed property was Tuda, who purchased the same from Dalpat
vide registered sale deed dated 24.05.1961. Tuda is grandfather of
plaintiff. Deceased Tuda executed a Will in favour of plaintiff on
04.12.2000. Therefore, plaintiff is owner of the suit property. Revenue
Court has wrongly passed an order for mutating plaintiff's name on
1/5th share only. Defendant No.3 has illegally executed sale-deed in
favour of defendant No.6 on 14.06.2006.
3. Learned counsel for the appellants/defendants submits that
there was oral partition and as per oral partition, parties are in
possession according to their share and they are cultivating the land
accordingly. Trial Court has decreed the plaintiffs' suit solely on the
basis of Will (Ex.P/4). Learned counsel for the appellants after
referring to Section 63 & 68 of the Indian Evidence Act, 1872 submits
that therein, it is provided that how Will is to be made/executed and
how it is to be proved.
4. Learned counsel for the appellant after referring to evidence
on record, including depositions of witnesses and Will (Ex.P/4)
submits that there are many suspicious circumstances on record that
goes to show that Will (Ex.P/4) has not been executed by Tuda and at
the time of execution, he was not mentally sound. It is also urged that
at the time of execution of Will (Ex.P/4), Testator Tuda was aged
about 75 years. Thumb impressions affixed on Will are vague and
unclear. There are more than one thumb impressions on Will and this
fact has not been explained. No details of property are mentioned in
the Will and only it is mentioned that Will is made with respect to
movable and immovable property of the testator. There are
overwriting in the Will. No details of attesting witness have been
mentioned. Testator was an illiterate person and it is not established
from evidence on record that at the time of execution of Will, he was
of sound mind. One attesting witness has deposed that Will was read
over but there is no such mention in the Will. It is not established that
Testator Tuda signed the Will without any undue threat and with free
will. Will (Ex.P/4) is a fabricated/forged document. With respect to
above submissions, learned counsel for the appellants has relied upon
the order passed by co-ordinate Bench of this Court in Smt. Kamla
Shukla and others Vs. The State of M.P. passed in
W.P.No.4708/2024 decided on 19.03.2024. On above grounds, it is
urged that substantial questions of law as mentioned in the appeal
memo arise for determination in this second appeal. Hence, appeal be
admitted for final hearing.
5. Heard. Perused the record of the case.
6. Learned trial Court vide judgment dated 29.02.2016 passed in
Civil Suit No.36A/2014 decreed the plaintiffs suit and appellate Court
vide judgment dated 29.10.2016 passed in RCA No.15A/2016
dismissed appellants/defendants' appeal and affirmed trial Court's
findings.
7. Therefore, question arises as to when this Court can interfere
with the findings of facts arrived at by the first appellate court/trial
court. 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".
8. 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 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".
9. 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 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 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 the defendant. The
admission was inadmissible as against the
defendant. This was also a Second Appeal
of 1981 disposed of on 24.9.1985".
10. Perusal of submissions of learned counsel for the
appellant reveals that sole issue involved in the case is whether there
are suspicious circumstances casting doubt over the genuineness of
Will (Ex.P/4). It is correct that at the time of execution of Will
(Ex.P/4), Testator was aged 75 years and he is an illiterate person.
Perusal of Will (Ex.P/4) reveals that there no overwriting in the
Will. Further, in Will, attesting witness witnesses' father's name
and address of witnesses is mentioned. It is also mentioned in Will
that there is no overwriting in the document. Will (Ex.P/4) is a
registered document. Attesting witnesses belong to different districts
and different places where thumb impressions of testator are affixed,
name of testator has been mentioned. It is evident from Ex.P/4 that
signature in English appears to be of the writer of the documents.
Just because there are two thumb impressions, the same does not go
to show that Will is suspicious. In Will (Ex.P/4), it is mentioned that
"bl okLrs ;g olh;rukek eSus viuh jkth[kq'kh gksl gokl es lqudj le>dj ys[k
dj fn;k dh lun gks le; ij dke vkos k" Writer of the Will, plaintiff
witness Anil has deposed in his examination-in-chief that Will was
read over to Tuda and after that he accepted it true and correct,
thereafter, Tuda affixed his thumb impression over the Will.
11. Perusal of deposition of plaintiff witnesses from
PW-1 to PW-5 reveals that to prove Will (Ex.P/4), plaintiff has
examined attesting witness Laxminarayan and document writer
A.K. Jain. Perusal of deposition of attesting witness Laxminarayan
and document writer A.K. Jain reveals that they have been
extensively cross-examined on behalf of the defendants but in their
statements, nothing as such has come out so as to render the Will
(Ex.P/4) suspicious. Further from perusal of depositions of PW-1.
PW-2, PW-3, PW-4 and PW-5 reveals that in deposition of
aforesaid witnesses, there is nothing on record to show that on the
date of execution of Will (Ex.P/4), testator Tuda was physically and
mentally not capable to execute the Will/understanding the contents
of the Will or was not of sound mind or on any ground whatsoever,
Tuda was not in a position to understand and execute the Will.
Further, perusal of defendant witnesses Prabhudayal, Mohanlal,
Dhaniram and Kanti Ahirwar reveals that aforesaid defendants
witnesses have not deposed in their examination-in-chief that on the
date of execution of Will (Ex.P/4) or immediately before or after the
execution of aforesaid Will, Testator Tuda was physically or
mentally not in a position to execute the Will or understand the
contents of the Will etc.
12. Hence, in view of above, it cannot be said that on
the date of execution of Will, Testator Tuda was not of sound mind
or he was not in a position to understand the contents of the Will/ to
execute it. It is correct that Testator Tuda has given his whole of the
property to plaintiff. But from the depositions of plaintiff witnesses
as well as defendants' witnesses, reason for the same is on record. It
is evident from depositions of plaintiffs and defendants witnesses
that plaintiff is a disabled person and he is having weak
eyesight/almost blind. Thus, there appears to be a reason/
justification for making Will in favour of plaintiff and with respect
to whole of the property of the testator. Non mention of details of
property does not make Will illegal/suspicious.
13. Hence, in view of discussions in the foregoing paras,
including overall evidence available on record, in this Court's
opinion, there are no suspicious circumstances so as to cast doubt
over genuineness of the Will (Ex.P/4). Hence, principle of law laid
down in Smt. Kamla (Supra) does not help the appellants in
anyway. Therefore, in view of overall evidence available on record,
learned trial Court as well as Appellate Court has rightly held the
Will (Ex.P/4) as proved. There is no illegality in the findings
recorded by the Appellate Court as well as trial Court with respect
to aforesaid.
14. Therefore, if pleadings and evidence adduced by the
parties and the impugned judgment passed by the first appellate
court/trial Court are considered, in the light of above legal
principles/legal provisions reiterated in aforesaid judgments, then, in
this Court's considered opinion, the findings of facts recorded by the
first appellate court/trial Court are not liable to be interfered with
in the instant case and it cannot be said that first appellate court
/trial Court has ignored any material evidence or has acted on no
evidence or first appellate court/trial court has 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 first
appellate court/trial court are based on inadmissible evidence.
15. A perusal of the impugned judgment and decree passed
by the first appellate court/trial Court reveals that it is well
reasoned and has been passed after due consideration of oral as well
as documentary evidence on record. Learned counsel for the
appellant has failed to show that how the findings of facts recorded
by the first appellate court /trial Court are illegal, perverse and
based on no evidence etc. The learned first appellate court/trial
Court has legally and rightly dealt with the issues involved in the
matter and has recorded correct findings of fact.
16. For the reasons aforesaid, I find no merit in the instant
second appeal. Findings recorded by the first appellate court/trial
court are fully justified by the evidence on record. Findings
recorded by the first appellate court/trial court 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 appeal. Hence, appeal is
dismissed in limine.
17. A copy of this order along with record be sent back
to the first appellate court/trial court for information and its
compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
Hashmi
