Rajasthan High Court
Kanhaiya Lal vs Mandir Shri Sitaramji , Shiv ... on 7 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 363/2016
Kanhaiya Lal S/o Birdi Chand, aged about 61 years, R/o Malpura,
Tehsil Malpura, Distt. Tonk
----Appellant
Versus
1. Mandir Shri Sitaramji, Shiv Parvatiji, Virajman Mandir
Teliyan, Malpura, Perpetual Minor Through Next Friend
1/1. Ram Dev S/o Jagdish R/o Malpura Distt. Tonk
1/2. Ratan Lal S/o Gajanand, R/o Malpura, Distt. Tonk
2. Munna @ Banshilal S/o Birdi Chand, R/o Malpura, Distt.
Tonk
3. Mus. Chand D/o Birdi Chand, R/o Malpura, Distt. Tonk
----Respondents
For Appellant(s) : Mr. Fahad Hasan
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/07/2022
1. Appellant-plaintiff has preferred this second appeal under
Section 100 CPC assailing the judgment and decree dated
25.05.2016 passed by the Court of Additional District Judge,
Malpura, Distt. Tonk (Raj.) in Civil Regular Appeal No.26/2011
affirming the judgment and decree dated 06.07.2011 passed by
the Court of Civil Judge (Junior Division), Malpura in Civil Suit
No.10/2005 whereby and whereunder appellant-plaintiff's suit for
cancellation of will of his mother and permanent injunction in
relation to 1/4th share of mother over the agricultural land in
question has been dismissed.
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2. Heard learned counsel for appellant and perused the
impugned judgments.
3. It appears from the record that one Birdi Chand was survived
by his wife namely Magdu and two sons namely, Kanhaiyalal and
Munna @ Banshilal and one daughter Chand had agricultural land.
He died intestate, hence his legal representatives got the
khatedari rights in equal 1/4th share of each. Plaintiff's mother
Magdu executed a will dated 20.07.2004, which was registered
before the Sub Registrar, Malpura, for her 1/4th share of khatedari
right (undivided) in favour of temple Shri Sitaramji (respondent
No.1 herein). She died on 30.09.2004. Thereafter mutation open
on 04.11.2004 and her 1/4th share was sanctioned in the name of
temple. Thereafter plaintiff, has instituted the present civil suit on
27.01.2005 for seeking cancellation of will of his mother on the
ground that his mother had gone insane prior to execution of will
and legally she could not bequeath undivided portion of 1/4th
share of the agricultural land. Further the plaintiff alleged that on
the entire agricultural land, he is in cultivation and possession.
The plaintiff admits in his plaint that his brother Munna @
Banshilal and sister Chand do not want to challenge the will hence
they have been impleaded as defendant Nos.2 and 3.
Plaintiff's suit was put for trial and evidence was adduced by
both parties.
On appreciation of evidence, the trial court has recorded a
fact finding that there is no evidence on record to show that
plaintiff's mother had gone insane prior to execution of the will.
The trial court has placed reliance on admission of plaintiff that he
has not produced any document showing unsoundness of his
mother and he admits that since she usually wanders here and
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there therefore, plaintiff treated her as insane. The statements of
PW-1, PW-2 and PW-3 were not found sufficient to prove the
mental status of plaintiff's mother as insane.
Plaintiff also raised a legal plea that the will is against the
provisions of Section 4(2) of Hindu Succession Act as well as
stands violated to Section 118 of the Indian Succession Act, 1925
however, both these objections were turned down by the trial
court. The trial court observed that as far as Section 4 (2) of
Hindu Succession Act, 1956 is concerned, the same has been
omitted and Section 118 of the Indian Succession Act, 1925 does
not apply to the facts of the present case.
In relation to the possession of plaintiff's, the trial court
recorded a fact finding that the plaintiff and his witnesses do not
belong to the village where the land in question is situated and
their oral statements to show the possession of plaintiff over the
land in question were found insufficient.
Finally the trial court dismissed the plaintiff's suit vide
judgment dated 06.07.2011.
4. Plaintiff preferred first appeal against the judgment and
decree dated 06.07.2011. The first appellate court re-heard and
re-appreciated the whole matter and concurred with the fact
findings by the trial court, finally first appeal was also dismissed
vide judgment dated 25.05.2016 hence concurrent findings of fact
this second appeal has been preferred.
5. Having heard learned counsel for appellant and on perusal of
record, this Court finds that both the courts have appreciated the
evidence on record and has concluded that the plaintiff has not
produced any evidence to show that his mother had gone insane
prior to execution of the will. His mother was undoubtedly co-
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sharer for 1/4th undivided share in the agricultural land and she
has bequeathed her undivided 1/4th share by way of will in
question in favour of temple Shri Sitaramji. Both the courts did
not find any cogent and convincing evidence on record to hold the
possession of plaintiff over the entire agricultural land left out by
his father. Admittedly, brother and sister of plaintiff have declined
to join the plaintiff in the suit in order to assail the will made by
their mother.
6. Learned counsel for appellant-plaintiff has not been able to
prove his case or to point out any perversity or make out any
substantial question of law in respect of the judgment and decree
passed by courts below. There are concurrent findings of fact. The
substantial questions of law as proposed by appellant-plaintiff are
essentially questions of fact requiring re-appreciation of evidence, which
is not permissible within the scope of Section 100 of CPC, unless and
until there is some illegality or perversity in findings. None of the
question of law, falls within the purview of substantial question of law.
In order to exercise the scope of Section 100 of CPC,
involvement/formulation of substantial question of law is sine qua non.
7. The Hon'ble Supreme Court In cases of Pakeerappa Rai Vs.
Seethamma Hengsu & Ors., [(2001)9 SCC 521],
Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC
409], Bholaram Vs. Ameerchand, [(1981)2 SCC 414],
Ishwar Das Jain Vs. Sohan Lal, [(2000)1 SCC 434] and
State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019)10
SCC 595], C. Doddanrayana Reddy and Ors. Vs. C. Jayarama
Reddy and ors. [(2020)4 SCC 659], has categorically held that
at the stage of second appeal, fact findings recorded by two
Courts below, based on appreciation of evidence, should be
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honoured and must not be interfered with unless and until there is
some perversity, illegality or jurisdictional error which leads
manifest injustice. Once findings of fact recorded by two Courts
below are justified and based on due appreciation of evidence, re-
appreciation of evidence at the stage of second appeal in order to
draw a different conclusion is not warranted.
8. Learned counsel for appellant also could not point out that the
findings of fact recorded by two courts below are suffered from any
infirmity/illegality or misreading/non-reading of evidence. In such
circumstances, no substantial question of law arises in this second
appeal. Subsequently is sine qua non for exercising the jurisdiction
under Section 100 CPC and to entertain the second appeal. Hence, the
second appeal is found to be devoid of merits and the same is
dismissed.
9. No order as to cost.
10. As far as partition of agricultural land in question is
concerned, it is always open for parties concerned to seek
partition of agricultural land in respect to their respective shares
before the revenue court.
11. Record be sent back forthwith.
12. Stay application and any other pending application(s), if any,
stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/94
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