1 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH:HON'BLE SHRI JUSTICE VIVEK RUSIA SECOND APPEAL No.337/2010 DASODIYA & OTHERS Vs. RAJENDRA SINGH & OTHERS Shri [ENTITY], learned counsel for the appellants. JUDGEMENT
(Delivered on 19/02/2018) Appellant Nos.1 to 6 (hereinafter referred to as defendant Nos.1 to 6) filed this second appeal being aggrieved by judgment dated 20.01.2010 passed by Third Additional District Judge, Satna, by which [CASE NUMBER] has been dismissed and the judgment and decree dated 28.02.2005 passed by First Civil Judge, Class-I, Satna, in [CASE NUMBER] has been affirmed.
Facts of the case in short are as under:-
The plaintiffs filed the suit seeking relief of declaration & partition. The plaintiffs sought 2/3rd share in the land measuring 39.55 acre of Gram Jamuna, Tahsil Rampur Baghelan, District Satna, and sought the declaration that the gift deed dated 22.05.1964 and Will dated 10.01.1990 be declared as void.
The suit property area 39.55 acre was owned by [ENTITY], who had three daughters namely [ENTITY] (plaintiff No.1 now dead), [ENTITY] (plaintiff No.2) and [ENTITY] (defendant No.1). The wife of [ENTITY] had died before the death of [ENTITY]. Except three daughters, [ENTITY] had no issues. According to the plaintiffs, [ENTITY] died in the month of January, 1990 leaving behind large number of the properties of various survey numbers mentioned in the memo of plaint. After the death of [ENTITY], the [ENTITY], passed an order dated 02.04.1990 directing mutation of the names of all the three daughters and accordingly the revenue entries records were corrected in [ENTITY] was issued. Thereafter, vide order dated 17.07.1990, the Tahsildar has cancelled its earlier order dated 02.04.1990 without notice to the plaintiffs. The defendant Nos.1 to 6 had got mutated their names over the land survey No.27.25 out of 39.55 acre on the basis of gift deed dated 22.05.1964. According to the plaintiffs, the [ENTITY] had never executed such deed. The defendant Nos.2 to 6 filed another application before the [ENTITY], Sajjanpur on 29.11.1990, seeking mutation of remaining land in their names on the basis of Will dated 10.01.1990. According to the plaintiffs, the sail Will is also forged Will and void and being daughters of [ENTITY], they are entitled to 2/3rd share in the property.
The defendants filed their written statement refuting the allegations made in the plaint and by submitting that the [ENTITY] had executed a Will dated 10.01.1990 in favour of defendant Nos.2 to 6 bequeathing the right over the suit land measuring 12.36 acre. The [ENTITY] had already executed a registered gift deed dated 25.05.1964 in favour of the defendants by granting land measuring 27.19 acre. The plaintiffs are not having any share in the property and the plaint is liable to be dismissed.
On the basis of pleadings, the trial Court framed six issues for adjudication. In respect of the plaint, the plaintiff No.1 [ENTITY] examined herself as P.W-1, [ENTITY] as P.W-2, [ENTITY] as P.W-3, whereas in defence, the defendants examined [ENTITY] as DW-1, [ENTITY] as DW-2, [ENTITY] DW-3, [ENTITY] as DW-4, [ENTITY] as DW-5, [ENTITY] as DW-6 and [ENTITY] as DW-7. The plaintiffs had got exhibited 13 documents as Ex.P-1 to P-13 and the defendants got exhibited 34 documents as Ex.D-1 to D-34.
Vide judgment and decree dated 13.08.2002, the learned Civil Judge, Class-I, dismissed the entire suit, thereafter, the plaintiff preferred a [CASE NUMBER]. Vide judgment dated 26.03.2003, the Third ADJ allowed the appeal and remanded the suit to the trial Court.
The learned Civil Judge, vide judgment and decree dated 28.02.2005 decreed the suit in favour of the plaintiffs. The learned Civil Judge, held that the gift deed dated 22.05.1964 is valid by which the land survey No.27.25 was granted to the defendant Nos.1 to 6. The learned trial Court has declared Will dated 10.01.990 as forged and granted the share of 1/3rd - 1/3rd share to the plaintiffs only in the land area 12.36 acre. The plaintiffs have also been granted the mesne profit.
Being aggrieved by judgment and decree dated 28.02.2005, the plaintiffs preferred [CASE NUMBER] against the dismissal of the suit in respect of gift deed dated 22.05.1964. Being aggrieved by judgment and decree dated 28.02.2005, the defendants preferred [CASE NUMBER] by which the Will dated 10.01.1990 has been declared forged and the decree of partition granted in favour of the plaintiffs. Learned Additional District Judge, vide judgment dated 28.01.2010 has dismissed both the appeals meaning thereby the judgment and decree passed in favour of the plaintiffs dated 28.02.20025 has been affirmed.
Being aggrieved by dismissal of the appeal filed by the defendants, they preferred this second appeal on the ground that the learned Courts below have erred in holding that the defendants has failed to prove the Will dated 10.01.1990 (Ex.D-A) whereas the defendant has duly proved the due execute the attestation and validity of the Will as required under [SECTION] of the [ACT]. The plaintiff has failed to prove any suspicious circumstances behind the execution of Will dated 10.01.1990. The late [ENTITY] validily executed the Will in favour of the defendant and at the time of execution of the Will, he was keeping good health and capable of executing the Will. The appellants suggested the following substantial questions of law:-
"(A) Whether, the due execution, attestation and validity of the Will dated 10.01.1990 Ex.D-
8 as required under [SECTION] of the [ACT] has been legally proved by the defendants?
(B)(i) Whether, the suspicious circumstances, if any, attending the execution of the Will dated 10.01.1990 Ex.D-8 have been satisfactorily dispelled by the defendants?
(ii) Whether, the suspicious circumstances pointed out by the courts below by themselves amount to any suspicious circumstances? (C) Whether, the finding recorded by the appellate court that [ENTITY] died in January, 1990 is illegal having been arrived at without any challenge to contrary finding by the trial Court and contrary to the evidence available on record?
(D) Whether the learned Courts below is right in cast the burden upon the appellants to prove that Will dated 10.01.1990 was executed by [ENTITY] is their favour?
(E) Any other substantial question of law, which this Hon'ble Court deem fit and proper looking to the facts and circumstances of the case be framed in the interest of justice."
I have heard Shri [ENTITY], learned counsel for the appellants.
Undisputedly, the [ENTITY] had three daughters and in absence of any gift deed and Will, all the three daughters would succeed their respective share in the properties of [ENTITY]. So far, the gift deed dated 22.05.1964 is concerned, same was executed in favour of the defendants and the findings recorded by both the Courts below have attained finality as the plaintiffs have not filed any second appeal so far. The only controversy in this second appeal is in respect of the Will dated 10.01.1990. The names of plaintiffs No.1, 2 & defendant No.1 were mutated in the Revenue Record. Thereafter, without notice to them, the Tahsildar set-aside the said order and the defendants filed an application on 29.11.1990 seeking mutation of their names on the basis of Will dated 10.01.1990. The defendant did not filed Will dated 10.01.1990 before the Tahsildar at the time of passing order dated 02.04.1990.
Since the defendants came up with the Will, therefore, burden lies on them to prove the Will. Initially, the defendants had pleaded the Will that the [ENTITY] had died on 10.01.1990, but on the basis of Ex.P-7, the [ENTITY] died on 13.02.1990. At that time, he was 90 years of age. According to the defendants, the said Will was typed at Rampur. The learned ADJ, has held that the defendants had failed to prove that where & when the Will was typed and executed. The [ENTITY] had died immediately after executing the so called Will, whether at the time of execution of the Will, he was of sound mind and keeping good health. This fact has not been established by the defendants- appellants. The physical & mental condition of the testator of the Will is required to be proved by positive and concrete evidence. When the [ENTITY] had already executed registered gift deed in favour of the defendants by giving 27.25 acre of land in the year 1964, then execution of the Will just before the death for remaining land in favour of the defendants creates the doubt and suspicion over the Will. The said Will was not produced at the time of passing the order dated 02.04.1990, thereafter, suddenly the defendants came up with the Will and filed application for mutation. The Tahsildar, without seeking any permission of the SDO/Collector had recalled the order dated 02.04.1990 which has been set-aside by the SDO vide order dated 31.10.1992. The learned trial Court as well as the Appellate Court, both have concurrently declared the Will dated 10.01.1990 as forged Will.
Both the courts have recorded the concurrent findings against the defendant and I do not find any perversity in it. I do not find any substantial question of law involved in this appeal for High Court to interfere with both the judgments of the Courts below.
Even otherwise, the Apex Court in the case of [PRECEDENT], has held as under:
5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as a substantial ques-
tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in [PRECEDENT] whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
In case of [PRECEDENT], again the Apex court has held as under:
16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted.
In exercise of jurisdiction under [SECTION] [ACT], concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.
Recently, the Apex Court in case of [PRECEDENT] has held as under:
"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.
18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."
In view of the above, present second appeal, having no substantial questions of law, is hereby dismissed.
([ENTITY]) Judge Amjad