Q‘)?’ 3 g¢L-\ é @mgQy‘a ;%@[m@iiza m- \‘E IN THE E-IIGH COURT OF JUDICATURE AT BILASPUR(CHHATTISGARH) ~, gb/D OF 2003 RPPELLAiqTS : 1. Balbir singh. sun of Dilip (DEFENDANTS) w / singh Sikh. aged about 40 years, 33 1am SECOND APPEAL NO. WY: 2. Dilip singh, son of Labh singh, m‘w / aged about 64 years. X !’ 47". )(iw .mmh‘ Both are regidents o£ Main Road, y Kawaréha.Tehsil and District- Kawardha,((2.G.) S RESPONDENTS 1. Dr. Rajesh KumarwBakshi, sonof. ( 13mm TiFFs) yy Ealmukunc‘x‘Bakshi, aged about. 5o years, REM-3b CHIKITSI—m ADHIKARI, Government Hospital,Bodla.Tehsil and Digtrict~Kawardha,(C.G.) Pradeep Kumar‘Bakshi,s;Em of W BalmukundVBakshi, aged about. . 4'3 years, SAHAYAK YANTRI, . Amar Kantak Power station,Bachai, Districtrist—shahdol .(M.P.) Smt. Ashalata Shrivastava,wife of. N.P.Shrivas%5‘a¥7a,a'ged about 55 years.resident of Nagyur. smt. shashi Prabha Bakshi.wife of late Balmukund Bak8h1,age& 77 years resident of sheetla Ward, Kawardha. District KawagdhaAmG.) state D£ Chhattisgarh,thrcugh Collector Kabir Dham, District—Kabir Dham( ELG.) / SECOND ‘APPEAL UNDER SECTION 100 OF C.Q.Ca ii, y 3%?3 £GHR’? QF $HH£W1$Q£§RH 3%? B§L£§3P§ER MW $ac§md $g§eai Ma. $5EE 13¢ 2W3 in ¥a £ench: mm’bie $mi Juakéce Pmsm. x2gmar Miahn amt}?! $ingh 31m gemmgam Elemug 53:: Ragew Kama? Eakgm and whem JQQ%MEM3’ Peasé £6? (?~£}372{)‘§ g‘ fl] Sd/— Prashant Kumar Mishra Judge fy" ”I; Egg/é; &,’ O HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra Second Appeal No.650 / 2003 Appellants Balbir Singh and another. (Defendants) Versus Respondents Dr. Rajesh Kumar Bakshi and others. (Plaintiffs) Shri R.P. Tripathi, counsel for the appellants. Shri Sanjay K. Agrawal with Miss Neelima Verma, counsel for the respondents No.1 & 2. None for respondent No. 3 & 4. Ku. Sangeeta Mishra, P.L. for the State/respondent No.5. Appeal Under Section 100 of the Code of Civil Procedure JUDGMENT ( 1%.03201 0) The instant Second Appeal has been preferred by the defendants to challenge the judgment and decree passed by the first appellate Court setting aside the judgment and decree passed by the trial Court. The trial Court had dismissed the plaintiffs’ suit and thus while allowing the first appeal the learned first appellate Court has decreed the plaintiff’s suit. (2) The plaintiffs/respondents No. 1 & 2 preferred a suit for declaration that the sale-deed dated 27-03—1981 and 16-12-1983 executed by the defendant No. 2 Balmukund Bakshi in favour of defendant No. 1 Balveer Singh and defendant No. 3 Dilip Singh to be not binding'upon them and that the possession of the suit l/ property be delivered to them. W (3) The plaintiffs’ case, in short, was that the defendant No. 2 is their‘father and they are governed by the' Meetakshara branch of Hindu Law. They are members of joint Hindu Family and their father had received 92.36 acres of iand in the year 1953 in partition from\his brother Khusheshwari Prasad§ Out of these 92.36 acres their father executed a sale—deed for 86.47 acres without any authority and legai necessity in favour of the other defendants challenging which another Civil Suit has been filed by them. it was stated by the plaintiffs that their father was in the habit consuming liquor and had other vices and is disposing of the ancestral property Without any legal necessity compelling them to issue public notice 1n the newspapers on 17 March 1977 and again on 03-07-1981 however in spite of pendency of earlier suit and issuance of newspaper publication and knowmg fully welt that the plaintiffs have also got their share in the ancestral property, the defendants No. 1 & 3 have purchaSed the property by sale-deeds dated 27-03-1981 and 16-12-1983 which are illegal and not binding on them. (4) The present suit pertains to a tank bearing Khasra No. 134/1 area 1.81 acre covered under the sate-deed dated 27—03-1981 and Khasra No. 736/9 (old Khasra No.863) which is covered under the sale—deed dated16-12—1983 area 1.50 acre. ,/ \ \ (5) The defendants No. 1 to 3 defended the suit by pleading that t / the suit property was the , self acquired property of Balmukund and wg/ property was the self acquired property of Balmukund and that the sale—deed executed by him in favour of defendants are valid document. They are bonaflde purchaser for value paid. Plaintiffs’ plea of want of legal necessity was also denied and it was stated that Balmukund has Sold the property to the defendants t0 meet out his family expenses, treatment and other social obligations. (6) The trial Court dismissed the suit on 14—09—1993, which was challenged by the plaintiffs by tiling first appeal which was decided on 24-12-1996 and the first appellate Court remanded the matter after framing two additional issues for determination. By judgment and decree dated 26-02-2000 the trial Court, after remand, again dismissed the suit after holding that the plaintiffs have failed to prove that the suit property was the ancestral property in the hands of Balmukund and that earlier it belonged to their forefathers. The trial Court thus found that the suit property is not the coparcenery property of the plaintiffs and Blal’mukund. lt was also held by the trial court that since the plaintiff have failed to prove that the suit property was a coparcenery property, Balmukund was entitled to execute the sale—deed in favour of the defendants No. 1 & 3 and that the question of existence of legal necessity at the time of execution of sale-deed is irrelevant. The_plaintiffs again» preferred a first appeal under Section 96 of C.P.C. which has been allowed by‘the first appellate Court by the llimpugned judgment and decree. (7) \/ c The appellate Court, after appreciating the core issue involved in the suit, the oral as well as the documentary evidence adduced by the parties and the arguments raised by them, has recorded findings that the suit property is the coparcenery property of the plaintiffs and Balmukund and that since there was no legal necessity at the time of execution of sale-deeds, the same are not binding on the plaintiffs. On appreciation of oral evidence the first appellate Court has found that Balmukund was in the habit of consuming liquor and had a keep and as such he was not in good company and had several vices. it was also held that the defendants No. 1 & 3 are not bonafide purchaser because a previous suit was pending against them and the plaintiffs have published newspaper notices to caution any prospective purchaser from entering into any transaction with Balmukund and that in spite of knowing fully well about these facts the defendants No. 1 &3 have ventured into the act of purchasing the property which appears to be malafide. (8) (9) The present Second Appeal has been admitted by this Court on 09-04-2008 on the following substantial question of law :- “Whether the finding recorded by the ,Iower appellate Court that the suit property comprised in the sale deeds executed by Balmukund on 16-12-1983 and 27-03-1981 was ancestral /-T property and was not'sold for legal necessity is Ycontrary to law and facts. " (10) Before proceeding to take up and decide the question of law it will be profitable to refer to the judgment rendered and law Iaid down by the Supreme Court with regard to the nature of property as to whether the said question is a substantiai question of law or not. (11) in the matter of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi (2009) 3 SCC 287 the Hon’bie Supreme Court has held thus in paragraphs 11,12,13,14 & 15:- 11. One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned trial Judge answered the question in the affirmative. The same was reversed by the first appellate court. A finding of fact arrived at by the first appellate court is ordinarily final. lts correctness can be questioned if, inter alia, the same was based upon no evidence or is otherwise perverse or that correct legal principles were (sic not) applied. 12. The question formulated, namely, as to whether the property in dispute is a joint Hindu family property, per se, is not a substantial question of law. The High Court, however, proceeded on the basis that if the judgment is based on no evidence or is othenNise perverse, a substantial question of law would arise for consideration. lt is so but therefor also a substantial question of law must be framed. ln terms of Section 100 of the Code of Civil Procedure, the High Court can . entertain a second appeal if a substantial question of law arises for its consideration and not otherwise. 13. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidences have not been taken into consideration or inadmissible evidences have been taken into consideration. 14. We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefor must be complied with. This aspect of the matter stands concluded by this Court in Krishnan case wherein it was held: (SCC pp. 192~93, paras 10-1 1) “10. Under the amended Section 100 CPC the High Court has to frame substantial questions of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the'finding of fact of the first appellate coutt that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse. 11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the first appellate court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the first appellate court that Ramayee and / \ Lakshmi are one and the same person could not have been interfered wrth by the High Court " (See also Subramanya Swamy Temple v. V. Kanna Gounder.) 15. Yet again in Boodireddy Chandraiah case Boodireddy Chandraiah V. Arigela Laxmi, (2007) 8 SCC 155 this Court opined: (SCC pp. 158-60, para 4) “4. ‘21. The phrase “substantiai question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words ”of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta (1927—28) 55 ia 235 : AIR 1928 PC 172 the phrase “substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. ln Chunilal case Sir Chunilal V. Mehta and Sons Ltd. V. Century Spg. and Mfg. Co. Ltd., AIR 1962 SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimma/apudi Subba Rao v. \//\\ Noony Veeraj: AIR 1951 Vlad 969 :(Chunilal case, AIR p.1318, para 5) l “5. when a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." 24. The principles relating to Section 100 CPC relevant for this case may be summarised thus: (I) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document. it gives rise to a question of law. (il) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question oflaw having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the, court below has decided the ‘,yatter, either ignoring or acting contrary to such legal \principle. ln the second type of cases, the substantial (KOO question of Iaw arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some 'of the well- recognised 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 (ii!) 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.’ ((12) ln the case of Arumugham (dead) by Lrs. & Ors. Vs. Sundarambal & Anr. JT 1999 (4) SC 464 Hon’ble Supreme Court has held that the findings recorded by the first appellate Court after appreciation of evidence are pure finding of fact and the second appellate Court is not entitled to interfere with the said findings. (13) Though the question of law has framed by this Court is not to the effect as to whether the findings regarding nature of property and existence of legal necessity are perverse yet since the question suggests that the said findings may be contrary to facts, \t/h's Court shall examine the evidence just to assess as to whether " the findings are contrary to facts available on record. ’ ,r\ ..))o« (14) The first appellate Court, in paragraph 9, 10 and 11 have referred to the documentary evidence available on record to hold that the property in the hands of Balmukund was ancestral property. Ex.P/3 is the sale—deed dated 16-12-1 983 and Ex. P/4 is the sale—deed dated 27-03—1981. Ex. P/1O is an order passed by the S.D.O., Kawardha on 06-03-1981 in which it is stated that Baimukund and his cousin Prakashchandra are claiming Bhoomiswami rights on the lands of Khasra No. 736 as the legal heirs of the then Malgujar Khusheshwari Prasad. The S.D.O. by a detailed order accepted the plea of Balmukund and Prakashchandra and after recognizing their successory rights their name was recorded on the lands bearing Khasra No. 736. ln EXP/12 which is an order passed by'the Board of Revenue Madhya Pradesh on 06-02-1978 it is recorded that Balmukund is claiming Bhoomiswami rights of Khasra No. 736 by successorship. In para 5 of the order it is mentioned that the land bearing Khasra No. 736 deserves to be considered as the Bhoomiswami land of the then Malgujar Shri Khusheshwari Prasad and, through him, it devolves upon their legal successor i.e. upon Balmukund who was the applicant before the Board of Revenue. With regard to Khasra No. 134 document Ex. P/14 needs to be referred. This is an application by Balmukund claiming title on several pieces of land including Khasra No. 134 on the ground that it belonged to his forefather who were Malgujar and has devolved on to him in his «successory right. Thus there are abundance of documentary evidence in support of plaintiff’s plea that the subject land is ancestral or coparcenery property. The finding to this effect recorded by the first appellate Court is therefore not contrary to facts avaiiabie on record. dg (15) Finding regarding existence of legai necessity has been dealt with by the first appellate Court in paragraph 15to 26. This finding is purely based on appreciation of evidence. All the witnesses examined on behalf of the plaintiffs have unequivocally stated that Baimukund was in the habit of consuming liquor and had a keep and was suffering from several vices. None of the witnesses examined on behalf of defendants have spoken anything convincingly about the existence of legal necessity. Thus the finding on this count also cannot be said to be contrary to facts available on record. (16) On the basis of what has been held in the preceding paragraphs of the judgment, this Court holds and decides the substantial question of law against the appellant. (17) The Second Appeal thus fails and is hereby dismissed. (18) There shall be no order as to costs. (19) A decree be drawn accordingly. Sd/- Prashant Kumar Mishra Judge Vi’ (ti