HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE Second Appeal No.83 of 2017. ([ENTITY] s/o [ENTITY] v/s Purilal s/o [ENTITY] and others) Indore, Dated : 14.08.2018:- Shri [ENTITY], learned counsel for the appellant. Heard on the question of admission. O R D E R THE appellant/plaintiff has filed the present second appeal against the judgment and decree dated 21.09.2016 passed in [CASE NUMBER] by Civil Judge, Class-II, Khilchipur, District Rajgarh (Biaora) by which suit has been dismissed and judgment and decree dated 16.12.2016 passed in [CASE NUMBER] by Second Additional District Judge, Rajgarh (Biaora) by which appeal has also been dismissed. [2] The plaintiff filed the suit for declaration of share in the suit property, partition and permanent injunction in respect of land Survey Nos.308/2/2, 309, 310/3, 539/1/2, 609/2, 613/2, 684/1, 690 and 693, total area 3.153 hectares. According to the plaintiff the suit property is joint ownership of land of plaintiff and the defendant No.1 and now the defendant No.1 is illegally trying to dispose of the suit property, therefore, cause of action accrued in his favour for filing the suit for partition claiming share. [3] After notice, the defendant No.1 filed the written-statement by submitting that the plaintiff, defendant No.1 and [ENTITY] are 3 sons of Late [ENTITY]. [ENTITY] had expired on 02.06.2014 without any issue. [ENTITY] executed a Will in favour of defendant No.3 who is son of defendant No.1. The plaintiff has wrongly got mutated his name against [ENTITY] against which appeal is pending before this Court. The partition has already been taken place in the family and the plaintiff is living separately after taking his share. He had received the land Survey Nos.307/2, 419/2, 420/2, 308/2/1, 611/2, 612/2/1, 684/2 and 692, total 5 area 1.304 hectares from ancestral property. [ENTITY] executed a Will dated 27.05.2005 by which he had bequeathed moveable and immoveable properties in the name of [ENTITY] i.e. defendant No.3. [4] On the basis of pleadings, the Trial Court framed 8 issues initially for adjudication and thereafter one more additional issue was also framed on the plea of Will i.e. "whether the deceased [ENTITY] executed a Will in favour of the defendant No.3" ? [5] Both the parties led their evidences and after appreciating the same, the Trial Court has dismissed the suit on the ground that the Will had already been executed in favour of the defendant No.3 and the plaintiff has not challenged the Will. The defendant has successfully proved the Will as per requirement of [SECTION] of the [ACT]. [6] Being aggrieved by the judgment and decree of the Trial Court, the plaintiff preferred first appeal before the first appellate Court. By judgment and decree dated 16.12.2016 the first appellate Court has dismissed the appeal. Hence the present second appeal before this Court. [7] Shri [ENTITY], learned counsel for the appellant has proposed the following substantial questions of law :- "(A) Whether the learned lower appellate Court has erred in affirming the judgment and decree passed by the learned Trial Court ? (B) Whether the impugned order is perverse to law and facts on record ? (C) Whether both the Courts below erred in holding the Will dated 27.05.05 (Ex D-1) executed by [ENTITY] in favour of [ENTITY] (Respondent No.3) as proved ?
(D) Whether the plaintiff and defendant No.1 being joint title holder and possessor of the suit property are entitled to half share in the suit property as per the [ACT] ?"
[8] The plaintiff has claimed share in the property of [ENTITY] who had expired on 02.06.2014 without any issue. During his life time, he executed a Will in favour of the defendant No.3. According to the plaintiff he had no knowledge about the Will, therefore, he filed the suit claiming share in the suit property. By way of written-statement the defendant had disclosed about the execution of Will in the year 2005 itself. Despite the aforesaid the plaintiff did not challenge despite that the Will and the issue in respect of Will was framed by way of additional issue. The defendants examined attesting witnesses of the Will and proved as per the requirement of law. The plaintiff has not given any evidence in rebuttal to establish that at the time of execution of the Will the executant of the Will i.e. [ENTITY] was not of sound mind or was not capable of executing the Will like that. In absence of these allegations and material evidence, the defendants have successfully proved the Will. Both the Courts below recorded the concurrent finding in respect of the Will. Admittedly once the Will has been proved, then the plaintiff is not having any share in the property of [ENTITY]. Therefore, learned Courts below have rightly dismissed the suit and the appeal.
[9] The Supreme Court in the case of [PRECEDENT] has held that the High Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 & 13 of the aforesaid judgment are reproduced herein below :-
"11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under [SECTION] in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse possession. In the case of [PRECEDENT], this Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows:
"It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.
As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding."
To the same effect is another decision of this Court in the case of [PRECEDENT], where the Court observed as follows:
"But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no jurisdiction under [SECTION] to correct that error."
12. The same view was taken in two earlier decisions of this Court in the cases of [PRECEDENT] and [PRECEDENT].
13. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicated above."
[10] In view of the above, I do not find any ground and substantial question of law involved in this appeal. In view of the above, this second appeal is dismissed.
[ [ENTITY] ] JUDGE (AKS) Date: 2018.08.16 14:18:17 +05'30'