Case: GURNAM SINGH (D) BY LRS Vs. LEHNA SINGH(D) BY LRS

2. The facts leading to present appeal in nutshell are as under:That the respondent–original plaintiff (hereinafter referred to as ‘original plaintiff?) filed a suit in the Court of Sub Judge, First Class, Sangrur for perpetual injunction restraining the original defendants from dispossessing him from the suit land. It was the case on behalf of the original plaintiff that he and his brother Bhagwan Singh alias Nikka Singh were owners and in possession of the suit land. Bhagwan Singh alias Nikka Singh expired leaving behind the plaintiff to be his only successor. Bhagwan Singh had no wife or children. The defendants who had no concern with the suit land were out to dispossess him from the same forcibly. Hence, therefore, he filed the aforesaid suit against the defendants for perpetual injunction.2.1 That the defendants appeared before the Trial Court and resisted the suit by filling the written statement. It was denied by the defendants that the plaintiff was the successor of Bhagwan Singh, deceased. According to the defendants, Bhagwan Singh, before his death, executed a Will in favour of Defendant Nos.2 to 6 on 17.01.1980. According to the defendants, as all the defendants served Bhagwan Singh in his lifetime and therefore he executed the Will in favour of Defendant nos.2 to 6 because of the services rendered. It was the case on behalf of the defendants that prior to it also, Bhagwan Singh alias Nikka Singh had got executed a Will on 17.08.1979, but the same remained as unregistered one. It was admitted that in the lifetime of Bhagwan Singh, both the plaintiff and the Bhagwan Singh, cultivated the suit land jointly. According to the defendants, after the death of Bhagwan Singh, Defendant Nos.2 to 6 came into possession of half share of Bhagwan Singh. In the alternative, the defendants pleaded that even if it was proved that the original plaintiff was in possession of the suit land, Defendant Nos. 2 to 6 were entitled to joint possession of half share of the suit land which belonged to Bhagwan Singh, deceased.2.2 That the original plaintiff, in the replication filed, denied having Bhagwan Singh - deceased, executed the Will in favour of the Defendant Nos.2 to 6 on 17.01.1980. He pleaded that Bhagwan Singh was not in a position to make any Will. Bhagwan Singh was actually murdered by the defendants by administrating poison to him and that the defendants were prosecuted for the murder of Bhagwan Singh deceased. That the defendants forged the Will on behalf of the Bhagwan Singh and under the umbrella of that forged document they were out to dispossess him forcibly. It was also denied that the defendants were in possession of the suit land with regard to the share of Bhagwan Singh.3. That on the basis of pleadings, the learned Trial Court framed the following issuesWhether the plaintiff is the sole heir of Bhagwan Singh, deceased?2. Whether the plaintiff is in possession of the property in dispute?3. Whether the plaintiff is entitled to the relief prayed for?4. Whether Bhagwan Singh deceased made a valid will as alleged in written statement in favour of defendants Nos.2 to 6?5. If issue No.2 is proved in favour of the plaintiff whether defendant Nos.2 to 6 are entitled to joint possession of the land in suit?6 Whether the defendants are governed in matters of marriage by the Punjab Pepsu Customary Law? If so, its effect? 7. Relief.That pursuant to the order passed by the High Court, the learned Trial Court framed the following additionalA. Whether the defendants have committed the murder of Bhagwan Singh? If so, itsBoth the parties led evidence on the issues framed. That on appreciation of evidence and on considering the submissions made by the learned advocates on behalf of the respective parties, the Trial Court held Issue Nos.1,4,2,5,6 and 3 in favour of the plaintiff and against the defendants. The Trial Court held the Issue No.4A in favour of the defendants and against the plaintiff. Consequently, the learned Trial Court held Issue No. 3 in favour of the plaintiff and against the defendants and held that the plaintiff is entitled to the perpetual injunction as prayed for. Consequently, the learned Trial Court decreed the suit.6. That in an appeal before the First Appellate Court preferred by the defendants, the First Appellate Court reversed the judgment and decree passed by the Trial court, by giving cogent reasons which were on re-appreciation of evidence. The First Appellate Court allowed the appeal preferred by the defendants and consequently dismissed the suit by quashing and set aside the judgment and decree passed by the learned Trial Court.7. Feeling aggrieved and dissatisfied with the judgment and decree passed by the First Appellate Court, the plaintiff preferred Regular Second Appeal before the High Court. By impugned judgment and order, the High Court allowed the same Second Appeal and has quashed and set aside the judgment and decree passed by the learned First Appellate Court dismissing the suit and consequently has restored the judgment and decree passed by the Trial Court decreeing the suit.8. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original defendants have preferred the present appeal.

Reasoning: 13. At the outset, it is required to be noted that the learned Trial Court held the Will dated 17.01.1980, which was executed in favour of original defendant Nos. 2 to 6, surrounded by suspicious circumstances and therefore did not believe the said Will.13.1. The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. 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 erroneousContrary to the mandatory provisions of the applicable law; OR(ii) Contrary to the law as pronounced by the Apex Court; OR(iii) Based on in-admissible evidence or nois 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.When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and heldSection 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. 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. 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 either of the above situations, a substantial question of law can arise.Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re¬appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re¬ appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as underWhether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading ofaforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC.