LEHNA SINGH (D) BY LRS. versus GURNAM SINGH (D) BY LRS. & ORS.
[2024] 6 S.C.R. 390, Supreme Court of India, 2024
Outcome: Unknown
Segment: Facts
* Author
[2024] 6 S.C.R. 390 : 2024 INSC 429
Lehna Singh (D) By Lrs. 
v. 
Gurnam Singh (D) By Lrs. & Ors.
(Review Petition (C) No. 1025 of 2019)
16 May 2024 
[Vikram Nath and Prashant Kumar Mishra,* JJ.]
Issue for Consideration
Issue arose whether the questions of law are not required to be 
framed in second appeal before Punjab and Haryana High Court 
whose jurisdiction in second appeal is circumscribed by provision 
of s.41 of the Punjab Act.
Headnotes†
Code of Civil Procedure, 1908 – s.100 – Punjab Courts Act, 
1918 – s. 41 – Second appeal – Framing of a substantial question 
of law for entertaining the second appeal – Requirement – On 
facts, suit for perpetual injunction by the plaintiff against the 
defendant that he and his brother were owners in possession 
of the suit land – Defendant’s case rested on the Will executed 
by the plaintiff’s brother – Trial court passed a decree in favour 
of the plaintiff holding that the Will was not validly executed – 
First appellate court set aside the finding of the trial court 
and passed a decree for joint possession in favour of the 
defendant – High Court restored the judgment and decree 
passed by the trial court – In appeal, this Court set aside the 
judgment passed by the High Court holding that the High 
Court went beyond the scope and ambit of s. 100 CPC by re-
appreciating the entire evidence on record and substituting 
its own opinion for that of the first appellate court – Review 
petition thereagainst – Correctness:
Held: s. 41 does not mandate framing of a substantial question of 
law for entertaining the second appeal – Thus, a second appeal 
u/s. 41 can be entertained by the Punjab and Haryana High Court 
even without framing a substantial question of law – However, the 
finding of fact recorded, cannot be interfered with even in terms of 
s.41 – Judgment under review was wrongly decided holding that the 
Punjab and Haryana High Court travelled beyond the jurisdiction u/s. 
100 CPC by interfering with the finding of fact recorded by the first
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Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
appellate court without framing a substantial question of law – Since 
there is an error apparent on the face of the record, the judgment in 
civil appeal is reviewed and recalled for deciding on merits – First 
appellate court while setting aside the judgment and decree of the 
trial court, was required to meet the reasoning given by the trial court 
in rejecting the Will, which was not been done – Having considered 
the evidence on record and the findings of the trial court, the first 
appellate court and the High Court, the first appellate court wrongly 
set aside the judgment, decree, and findings of the trial court without 
meeting the findings of the trial court which could not have been 
done in exercise of power s. 96 CPC – Thus, the High Court rightly 
set aside the judgment and decree of the first appellate court to 
restore the judgment and decree of the trial court – On independent 
examination also, it is found that the findings recorded by trial court 
are borne out from the evidence on record and are neither perverse 
nor illegal – Thus, no substance in the civil appeal and is dismissed. 
[Paras 20, 23, 10, 12, 14, 15, 26, 27]
Case Law Cited
Pankajakshi (Dead) Through Legal Representatives & 
Ors. v. Chandrika & Ors. [2016] 3 SCR 1018 : (2016) 
6 SCC 157 – followed.
Kulwant Kaur & Ors. v. Gurdial Singh Maan (Dead) 
By Lrs. & Ors. [2001] 2 SCR 525: (2001) 4 SCC 262; 
Randhir Kaur
v. Prithvi Pal Singh & Ors. [2019] 9 SCR 
776 : (2019) 17 SCC 71; Gurbachan Sing (Dead) 
Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. 
& Ors. (2023) SCC Online SC 875; Chintamani Ammal 
v. Nandagopal Gounder and Anr. [2007] 2 SCR 903 : 
(2007) 4 SCC 163; Jagannath v. Arulappa & Anr. (2005) 
12 SCC 303; H.K.N. Swami v. Irshad Basith (Dead) By 
Lrs. (2005) 10 SCC 243 – referred to.
List of Acts
Code of Civil Procedure, 1908; Code of Civil Procedure 
(Amendment) Act, 1976; Punjab Courts Act, 1918.
List of Keywords
Second appeal; Framing of a substantial question of law; Suit for 
perpetual injunction; Will; Suspicious circumstances; Decree for 
joint possession; First appellate court; Review petition.
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Case Arising From
CIVIL APPELLATE JURISDICTION: Review Petition (C) No. 1025 
of 2019
In
Civil Appeal No. 6567 of 2014
From the Judgment and Order dated 13.03.2019 of the Supreme 
Court of India in CA No. 6567 of 2014
Appearances for Parties
P.S. Patwalia, Gagan Gupta, Sr. Advs., Ashwani Kumar Dubey, 
Deepak Malik, Advs. for the Petitioners.
Manoj Swarup, Sr. Adv., Neelmani Pant, Ms. Apoorva Singh, Avinash 
Gautam, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Prashant Kumar Mishra, J.
The petitioner has preferred this Review Petition seeking review 
of the Order dated 13.03.2019 passed in Civil Appeal No. 6567 
of 2014 wherein the present petitioner was the respondent. In the 
Order under review, the Civil Appeal was allowed, and the judgment 
and decree passed by the High Court of Punjab and Haryana on 
27.11.2007 in Civil Regular Second Appeal No. 2191 of 1985 was 
set aside and the judgment and decree passed by the District 
Judge, Sangrur, on 06.06.1985 in Civil Appeal No. 27 of 1983 has 
been restored. 
2.	
In the judgment under review, this Court held that the judgment and 
decree passed by the Punjab and Haryana High Court is beyond 
the scope and ambit of Section 100 of Code of Civil Procedure, 
19081 on the ground that in exercise of such power, the High Court 
could not have reappreciated the entire evidence on record to 
unsettle the finding of facts recorded by the First Appellate
Court, 
by substituting its own opinion for that of the First Appellate Court. 
1	
‘CPC’
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Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
3.	
Basing the judgment rendered in Pankajakshi (Dead) Through 
Legal Representatives & Ors. v. Chandrika & Ors.2, this Court 
directed that the review petition be listed before the open Court for 
hearing and subsequently on 13.08.2019 notices were issued to the 
opposite parties, at the same time, directing the parties to maintain 
status quo. 
4.	
In substance, the main ground for review of the judgment is that the 
Constitution Bench of this Court in Pankajakshi (supra) have uphold 
the validity of Section 41 of Punjab Courts Act, 19183, overruling this 
Court’s earlier judgment in case of Kulwant Kaur & Ors. v. Gurdial 
Singh Maan (Dead) By Lrs. & Ors.4 holding that since Section 
97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has 
no application to Section 41 of the Punjab Act, therefore, Section 41 
of the Punjab Act would necessarily continue as a law in force and 
the second appeal before the High Court has to be heard within the 
parameters of Section 41 of the Punjab Act, and not under Section 
100 CPC. 
5.	
Shri P.S. Patwalia, learned Senior counsel appearing for the petitioner 
would also refer to the subsequent judgments of this Court in Randhir 
Kaur v. Prithvi Pal Singh & Ors.5 and Gurbachan Sing (Dead) 
Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. & Ors.6 
wherein this Court relying upon Pankajakshi (supra) held that the 
scope of interference within the
jurisdiction of the Punjab and Haryana 
High Court would be the same as under Section 100 of CPC as it 
existed prior to the 1976 amendment. The provisions of Section 41 
of the Punjab Act and of Section 100 CPC, before its amendment 
in 1976, are in pari materia. Therefore, the questions of law are not 
required to be framed in second appeal before Punjab and Haryana 
High Court whose jurisdiction in second appeal is circumscribed by 
provision of Section 41 of the Punjab Act. 
6.	
Shri Patwalia would submit that this Court has set aside the Judgment 
of High Court terming it as beyond the power under Section 100 
2	
[2016] 3 SCR 1018 : (2016) 6 SCC 157
3	
‘Punjab Act’
4	
[2001] 2 SCR 525 : (2001) 4 SCC 262
5	
[2019] 9 SCR 776 : (2019) 17 SCC 71
6	
(2023) SCC Online SC 875
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CPC which is not legally correct, in view of the law laid down in 
Pankajakshi (supra). It is further argued that in the facts and 
circumstances of the case, the petitioner was entitled to succeed 
to the property by way of natural succession and the finding of the 
High Court that the Will relied upon by the respondents has not been 
proved as it is surrounded by suspicious circumstances ought not to 
have been interfered by this Court. It is argued that a finding of fact 
erroneously or perversely recorded by the First Appellate Court can 
always be interfered by the High Court. Hence, there is no infirmity 
in the Judgment rendered by the High Court and the same ought not 
to have been interfered by this Court while deciding the Civil Appeal 
No. 6567 of 2014 on an erroneous ground that the High Court has 
travelled beyond its jurisdiction and power under Section 100 CPC 
as it stands of the 1976 amendment. 
7.	
Shri Manoj Swarup, learned senior counsel appearing for the 
respondents would not dispute the legal position as has been settled 
by this Court in the matter of Pankajakshi (supra). However, he 
would submit that even in the case when the High Court would 
exercise the power under Section 41 of the Punjab Act, the finding 
of fact recorded by the First Appellate Court cannot be interfered on 
re-appreciation of evidence to substitute its own decision for that of 
the First Appellate Court. According to him, the
finding recorded by 
the First Appellate Court was borne out from the record. Therefore, 
the High Court erred in interfering with the said finding, and this 
Court rightly set aside the Judgment and decree of the High Court 
while deciding the Civil Appeal. According to Shri Swarup, the 
respondents had proved the Will, which was a registered one, in 
accordance with law and that there were no suspicious circumstances 
accompanying the Will. 
8.	
When this Court rendered the judgment under review in Civil Appeal 
No. 6567 of 2014, the only ground which weighed with the Court 
was that the High Court exercised the power under Section 100 
CPC erroneously and decided the second appeal by re-appreciating 
the evidence without even framing a substantial question of law. 
9.	
The second appeal in Punjab and Haryana High Court is heard 
under Section 41 of the Punjab Act, which is reproduced hereunder 
for ready reference: -
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Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
“41. Second Appeals – (1) An appeal shall lie to the 
High Court from every decree passed in appeal by 
any court subordinate to the High Court on any of the 
following grounds, namely: 
(a)	 the decision being contrary to law or to 
some custom or usage having the force 
of law:
(b)	 the decision having failed to determine 
some material issue of law or custom or 
usage having the force of law:
(c)	
a substantial error or defect in the 
procedure provided by the Code of Civil 
Procedure 1908 (V of 1908), or by any 
other law for the time being in force which 
may possibly have produced error or 
defect in the decision of the case upon 
the merits; 
[Explanation – A question relating to the 
existence or validity of a custom or usage shall 
be deemed to be a question of law within the 
meaning of this section:] 
(2) An appeal may lie under this section from an 
appellate decree passed ex parte.”
10.	 The provision contained in Section 41 of the Punjab Act, as 
reproduced above, does not mandate framing of a substantial 
question of law for entertaining the second appeal. Therefore, a 
second appeal under Section 41 of Punjab Act can be entertained 
by the Punjab and Haryana High Court even without framing a 
substantial question of law. 
11.	 It would be appropriate to refer to the provision contained in Section 
41 of the Punjab Act in juxtaposition to Section 100 CPC, before its 
amendment in
1976, to appreciate and understand the jurisdiction 
of Punjab and Haryana High Court in second appeal. The provisions 
are reproduced hereunder for ready reference: -
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“Section 41 of the Punjab Act
Section 100 CPC
41. Second appeals.—(1) An 
appeal shall lie to the High Court 
from every decree passed in 
appeal by any court subordinate 
to the High Court on any of the 
following grounds, namely:
100. Second appeal.—(1) Save 
where otherwise expressly 
provided in the body of this 
Code or by any other law for the 
time being in force, an appeal 
shall lie to the High Court from 
every decree passed in appeal 
by any court subordinate to 
a High Court, on any of the 
following grounds, namely:
(a) the decision being contrary to 
law or to some custom or usage 
having the force of law;
(a) the decision being contrary 
to law or to some usage having 
the force of law;
(b) the decision having failed to 
determine some material issue 
of law or custom or usage having 
the force of law;
(b) the decision having failed to 
determine some material issue 
of law or usage having the force 
of law;
(c) a substantial error or defect 
in the procedure provided by the 
Code of Civil Procedure, 1908 (V 
of 1908), or by any other law for 
the time being in force which may 
possibly have produced error or 
defect in the decision of the case 
upon the merits;
(c) a substantial error or defect 
in the procedure provided by 
this Code or by any other law 
for the time being in force, which 
may possibly have produced 
error or defect in the decision 
of the case upon the merits.
*
*                 *
(2) An appeal may lie under this 
section from an appellate decree 
passed ex parte.
(2) An appeal may lie under 
this section from an appellate 
decree passed ex parte.”
12.	 In Pankajakshi (supra), the Constitution Bench of this Court has held 
that substantial question of law may not be required to be framed in 
a second appeal before Punjab and Haryana High Court. However, 
the finding of fact recorded, cannot be interfered with even in terms 
of Section 41 of Punjab Act. The law laid down by this Court in 
Pankajakshi (supra) has been relied upon in Randhir Kaur (supra) 
to hold thus in paragraphs 10 to 12: -
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397
Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
“10. The effect of the Constitution Bench judgment 
in Pankajakshi is that in second appeal, the scope of 
interference within the Punjab and Haryana High Court 
would be the same as the Code of Civil Procedure 
existed prior to the 1976 Amendment. The provisions 
of Section 41 of the Punjab Act and of Section 100 
CPC are in pari materia.
11. Some of the judgments of this Court dealing with 
the scope of the old Section 100 are required to be 
discussed. In a judgment in Deity Pattabhiramaswamy 
v. S. Hanymayya [AIR 1959 SC 57] — three Judges, 
while examining the scope of Section 100 CPC, held 
as under : (AIR p. 59, para 13)
“13. The finding on the title was arrived at by 
the learned District Judge not on the basis of 
any document of title but on a consideration 
of relevant documentary and oral evidence 
adduced by the parties. The learned Judge, 
therefore, in our opinion, clearly exceeded his 
jurisdiction in setting aside the said finding. 
The provisions of Section 100 are clear and 
unambiguous. As early as in 1891, the Judicial 
Committee in Durga Choudhrain v. Jawahir 
Singh Choudhri [1890 SCC OnLine PC 10 : 
(1889-90) 17 IA 122] stated thus : (SCC OnLine 
PC)
‘There is no jurisdiction to entertain a second 
appeal on the ground of an erroneous finding 
of fact, however gross or inexcusable the error 
may seem to be.’
The principle laid down in this decision has 
been followed in
innumerable cases by the Privy 
Council as well as by different High Courts in 
this country. Again the Judicial Committee in 
Midnapur Zamindary Co. Ltd. v. Uma Charan 
Mandal [1923 SCC OnLine PC 31 : (1924-25) 
29 CWN 131] further elucidated the principle 
by pointing out : (SCC OnLine PC)
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‘[If] the question to be decided is one of fact, it 
does not involve an issue of law merely because 
documents which were not instruments of title 
or contracts or statutes or otherwise the direct 
foundations of rights but were merely historical 
documents, have to be construed.’
Nor does the fact that the finding of the 
first appellate court is based upon some 
documentary evidence make it any the less a 
finding of fact (see Wali Mohammad v. Mohd. 
Bakhsh [1929 SCC OnLine PC 115 : (1929-
30) 57 IA 86 : ILR (1930) 11 Lah 199]). But, 
notwithstanding such clear and authoritative 
pronouncements on the scope of the provisions 
of Section 100 CPC, some learned Judges of 
the High Courts are disposing of second appeals 
as if they were first appeals. This introduces, 
apart from the fact that the High Court assumes 
and exercises a jurisdiction which it does not 
possess, a gambling element in the litigation 
and confusion in the mind of the litigant public. 
This case affords a typical illustration of such 
interference by a Judge of the High Court in 
excess of his jurisdiction under Section 100 
CPC. We have, therefore, no alternative but to 
set aside the decree of the High Court on the 
simple ground that the learned Judge of the High 
Court had no jurisdiction to interfere in second 
appeal with the findings of fact given by the first 
appellate court based upon an appreciation of 
the relevant evidence. In the result,
the decree 
of the High Court is set aside and the appeal 
is allowed with costs throughout.”
12. Later, in a judgment, in Kshitish Chandra Bose v. 
Commr. [(1981) 2 SCC 103] — three Judges, of this 
Court held that the High Court has no jurisdiction to 
entertain second appeal on findings of fact even if it 
was erroneous. The Court held as follows : (SCC p. 
108, para 11)
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399
Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
“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 
100 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 Kharbuja Kuer v. 
Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 
1 SCR 456] 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 : 
(AIR pp. 1205-06, paras 5 & 7)
‘5. It is settled law that the High Court has no 
jurisdiction to entertain a second appeal on the 
ground of erroneous finding of fact. …
***
7. … 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 V. Ramachandra Ayyar v. Ramalingam 
Chettiar [AIR 1963 SC 302 : (1963) 3 SCR 604] 
where the Court observed as follows : (AIR p. 
306, para 12)
‘12. … 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 has observed, 
however gross or inexcusable the error may
seem to be, there is no jurisdiction under Section 
100 to correct that error.’ ”
13.	 In a recent decision in the matter of Gurbachan Singh (supra), 
this court has reiterated the legal position vis-à-vis Section 41 of 
Punjab Act and the unamended Section 100 CPC holding thus in 
paragraphs 9 to 11: -
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“9. The Constitution bench in Pankajakshi (Dead) 
through LRs v. Chandrika had held Kulwant Kaur v. 
Gurdial Singh Mann which held section 41 of the Punjab 
Courts Act, 1918 to be repugnant to section 100, CPC 
to be bad in law, thereby implying that section 41 of 
the Punjab Court Act holds as good law. It was held 
as under: —
“25. We are afraid that this judgment in Kulwant 
Kaur case [Kulwant Kaur v. Gurdial Singh 
Mann, (2001) 4 SCC 262] does not state the 
law correctly on both propositions. First and 
foremost, when Section 97(1) of the Code of Civil 
Procedure (Amendment) Act, 1976 speaks of 
any amendment made or any provision inserted 
in the principal Act by virtue of a State Legislature 
or a High Court, the said section refers only to 
amendments made and/or provisions inserted 
in the Code of Civil Procedure itself and not 
elsewhere. This is clear from the expression 
“principal Act” occurring in Section 97(1). What 
Section 97(1) really does is to state that where 
a State Legislature makes an amendment in the 
Code of Civil Procedure, which amendment will 
apply only within the four corners of the State, 
being made under Schedule VII List III Entry 13 
to the Constitution of India, such amendment 
shall stand repealed if it is inconsistent with the 
provisions of the principal Act as amended by 
the Parliamentary enactment contained in the 
1976 Amendment to the Code of Civil Procedure. 
This is further
made clear by the reference in 
Section 97(1) to a High Court. The expression 
“any provision inserted in the principal Act” by a 
High Court has reference to Section 122 of the 
Code of Civil Procedure by which High Courts 
may make rules regulating their own procedure, 
and the procedure of civil courts subject to their 
superintendence, and may by such rules annul, 
alter, or add to any of the rules contained in the 
First Schedule to the Code of Civil Procedure.”
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Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
10. Recently, a Bench of three learned Judges in 
Satyender v. Saroj while dealing with a property 
dispute arising out of the State of Haryana, held as 
under:—
“16. We may also add here that we are presently 
concerned with the laws in the State of Haryana. 
All the same, the laws as applicable in Punjab 
in the year 1918, were also applicable to the 
present territory of Haryana since it was then 
a part of the State of Punjab. Later on, the 
creation of the new State of Haryana, under 
the provision given in Section 88 of the Punjab 
Re-organization Act, 1966, the laws applicable 
in the erstwhile State of Punjab continued to 
be applicable in the new State of Haryana. 
Furthermore, State of Haryana formally adopted 
the laws of the erstwhile State of Punjab, under 
Section 89 of the Punjab Re-Organisation 
Act, 1966. Therefore, in the State of Haryana 
a court in second appeal is not required to 
formulate a substantial question of law, as what 
is applicable in Haryana is Section 41 of the 
Punjab Courts Act, 1918 and not Section 100 
of CPC. Consequently, it was not necessary 
for the High Court to formulate a substantial 
question of law.”
11. In view of the above discussion, it is clear to this 
court that the judgment of the learned single Judge 
sitting in second appellate jurisdiction cannot be 
faulted for not having framed substantial questions 
of law under section 100, CPC”.
14.
Regard being had to the settled legal position in Pankajakshi (supra) 
reiterated in Randhir Kaur (supra) and Gurbachan Singh (supra), 
we are of the view that the Judgment of this Court under review in 
Civil Appeal No. 6567 of 2014 has been wrongly decided holding 
that the Punjab and Haryana High Court has travelled beyond the 
jurisdiction under Section 100 CPC by interfering with the finding of 
fact recorded by the First Appellate Court without framing a substantial 
question of law.
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15.	 Since there is an error apparent on the face of the record, in view of 
the law laid down in Pankajakshi (supra), we review our judgment 
in Civil Appeal No. 6567 of 2014 and recall the same for deciding 
the Civil Appeal on merits. The Review Petition is allowed. The Civil 
Appeal is restored to its original number and taken on board with the 
consent of the parties, and we proceed to decide the Civil Appeal 
afresh on merits. 
Civil Appeal No. 6567 of 2014
16.	 This Civil Appeal is preferred by the defendants in the suit against 
whom the plaintiff brought a suit for perpetual injunction on the 
pleadings, inter alia, that he and his brother Bhagwan Singh alias 
Nikka Singh were owners in possession of the suit land. Bhagwan 
Singh was issueless being unmarried. Since the defendant No. 1 
was trying to dispossess the plaintiff forcibly, the suit for perpetual 
injunction was filed. The defendants did not deny that plaintiff and 
Bhagwan Singh were real brothers. However, he claimed to be the 
half-brother of Bhagwan Singh as they were given birth by same lady 
namely Mrs. Har Kaur who was earlier married to Sunder Singh but 
after his death, she was married to Mehar Singh and the defendant 
no. 1 was born out of the wedlock of Har Kaur with Mehar Singh. The 
defendant’s case rested on a Will allegedly executed by Bhagwan 
Singh on 17.01.1980. Prior to this, Bhagwan Singh had executed an 
unregistered Will on
17.08.1979. However, the defendant admitted 
that during the lifetime of Bhagwan Singh, the suit land was cultivated 
jointly by the plaintiff and Bhagwan Singh. In the alternative, the 
defendant pleaded that if plaintiff’s possession over the suit land is 
proved, the defendant nos. 2 to 6, the beneficiary of the Will, are 
entitled to joint possession of half share of the suit land. 
17.	 On the strength of evidence adduced by the parties in course of 
trial, it was held by the trial court that the defendants have failed to 
prove the genuineness of the Will, therefore, the plaintiff is entitled 
to succeed by way of natural succession. It was found that the Will 
relied by the defendants is surrounded by suspicious circumstances, 
therefore, it is not a validly executed Will. The trial court held that 
the defendants’ case that they served the deceased Bhagwan Singh 
during the lifetime and out of love and affection for the services 
rendered, he executed the Will in their favour as they were also 
related to the deceased, has not been believed by the trial court. 
There is evidence that it was plaintiff who admitted Nikka Singh in
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Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
hospital on 02.08.1979 when he was ill and his address was also 
shown as care of Lehna Singh (the ‘plaintiff’). 
18.	 Upon careful marshalling of evidence, the trial court recorded a finding 
about active participation of Jagjit Singh (DW-3) in execution of the Will 
and the absence of mention in the Will as to why he disinherited his 
real brother, the plaintiff, from succeeding the property and more so 
when he was living with him and was attended to during his ill health. 
Since the defendant admit joint possession and cultivation of the land 
by Nikka Singh and plaintiff, a fact contrary to this mentioned in the 
Will was also highlighted by the trial court. Despite there being an 
earlier Will there was no mention that the said Will is cancelled and 
the name of father of Gurnam Singh was also wrongly mentioned. 
The trial court also found that Nikka Singh was suffering from cancer 
and was also a patient of T.B. 
19.	 The trial court also found that the plaintiff is in possession of the suit 
land as the said fact has been admitted by one of the defendant’s 
witnesses namely Gurnam Singh. 
20.	 The First Appellate Court set aside the finding of the trial court 
holding that the trial court was wrongly persuaded by insignificant 
circumstances to hold that the Will in favour of the defendant nos. 2 to 
6 is not genuine and that it is surrounded by suspicious circumstances. 
The First
Appellate Court eventually passed a decree for joint 
possession in favour of defendant which was assailed by plaintiff 
Lehna Singh before the High Court by preferring an appeal under 
Section 41 of the Punjab Act. The High Court, under the impugned 
Judgment, allowed the appeal, set aside the appellate decree passed 
by the District Judge, Sangrur, restoring the Judgment and decree 
passed by the trial court. 
21.	 The High Court has discussed the evidence threadbare and framed 
the following substantial questions of law: - 
(i)	
Whether 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 of evidence?
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22.	 The High Court answered both the questions of law in favour of 
the plaintiff/respondent herein (in Civil Appeal) on the reasoning 
that when the person entitled to the property of the deceased by 
way of natural succession, is disinherited from the property without 
giving any reason and the covenants in the Will are also found to be 
factually incorrect, mere registration of the Will and proof of the same 
by attesting witnesses could not be treated to be sufficient to over-
come the suspicious circumstances as has been done by the First 
Appellate Court. The High Court also observed that the propounders 
of the Will were earlier tried for murder of the deceased-testator and 
there being no evidence on record to show that the deceased had 
special love and affection with the defendants and when it is proved 
that the plaintiff is in possession of the land and the defendant and 
their witnesses actively participated in the execution of the Will, 
there is glaring suspicious circumstances to hold that the Will is not 
genuine. It was also observed that the testator was residing with the 
plaintiff, and it was he who got him admitted in the hospital, it was 
proved that the plaintiff was taking care of the deceased at the time 
of his need. Merely because the attesting witnesses had no enmity 
towards the plaintiff, it cannot dispel the suspicious circumstances 
surrounded around the Will.
23.	 It is settled law that the
First Appellate Court, while setting aside 
the Judgment and decree of the trial court, is required to meet the 
reasoning given by the trial court in rejecting the Will, which in the 
present case has not been done by the First Appellate Court.
24.	 The requirement of exercise of jurisdiction by the First Appellate 
Court under Section 96 of CPC has been dealt with by this Court in 
Chintamani Ammal vs. Nandagopal Gounder and Anr.7, wherein 
after noticing the previous judgments of this Court, the following has 
been held in paragraphs 18, 19 and 20 thus: - 
“18. Furthermore, when the learned trial Judge 
arrived at a finding on the basis of appreciation of 
oral evidence, the first appellate court could have 
reversed the same only on assigning sufficient reasons 
therefor. Save and except the said statement of DW 2, 
7	
[2007] 2 SCR 903 : (2007) 4 SCC 163
[2024] 6 S.C.R. 
405
Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
the learned Judge did not consider any other materials 
brought on record by the parties.
19. In Madholal Sindhu v. Official Assignee of Bombay, 
it was observed: (AIR p. 30, para 21)
“It is true that a judge of first instance can 
never be treated as infallible in determining on 
which side the truth lies and like other tribunals 
he may go wrong on questions of fact, but 
on such matters if the evidence as a whole 
can reasonably be regarded as justifying the 
conclusion arrived at, the appeal court should 
not lightly interfere with the judgment.”
(See also Madhusudan Das v. Narayanibai)
20. In Rajbir Kaur v. S. Chokesiri and Co., this Court 
observed: (SCC pp. 39-41, paras 48-52)
“48. Reference on the point could also usefully be 
made to A.L. Goodhart’s article in which, the learned 
author points out:
‘A judge sitting without a jury must perform 
dual function. The first function consists in the 
establishment of the particular facts. This may be 
described as the perceptive function. It is what 
you actually perceive by the five senses. It is a 
datum of experience as distinct from a conclusion.
It is obvious that, in almost all cases tried 
by a judge without a jury, an appellate court, 
which has not had an opportunity of seeing 
the witnesses, must accept his conclusions of 
fact because it cannot tell on what grounds he 
reached them and what impression the various 
witnesses made on
him.’
49. The following is the statement of the same 
principle in ‘The Supreme Court Practice’:
‘Great weight is due to the decision of a judge of 
first instance whenever, in a conflict of testimony,
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[2024] 6 S.C.R.
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the demeanour and manner of witnesses who 
have been seen and heard by him are material 
elements in the consideration of the truthfulness 
of these statements. But the parties to the cause 
are nevertheless entitled as well on questions of 
fact as on questions of law to demand the decision 
of the court of appeal, and that court cannot 
excuse itself from the task of weighing conflicting 
evidence, and drawing its own conclusions, 
though it should always bear in mind that it has 
neither seen nor heard the witnesses and should 
make due allowance in this respect. (pp. 854-55)
…Not to have seen witnesses puts Appellate 
Judges in a permanent position of disadvantage 
against the trial Judge, and unless it can be 
shown that he has failed to use or has palpably 
misused his advantage—for example has failed 
to observe inconsistencies or indisputable fact 
or material probabilities (ibid. and Yuill v. Yuill; 
Watt v. Thomas —the higher court ought not 
take the responsibility of reversing conclusions 
so arrived at merely as the result of their own 
comparisons and criticisms of the witnesses, 
and of their view of the probabilities of the case. 
… (p. 855)
…But while the court of appeal is always 
reluctant to reject a finding by a judge of the 
specific or primary facts deposed to by the 
witnesses, especially when the finding is based 
on the credibility or bearing of a witness, it is 
willing to form an independent
opinion upon the 
proper inference to be drawn from it. … (p. 855)
50. A consideration of this aspect would be incomplete 
without a reference to the observations of B.K. 
Mukherjea, J., in Sarju Pershad Ramdeo Sahu v. 
Jwaleshwari Pratap Narain Singh [1950 SCC 714 : 
AIR 1951 SC 120 : 1950 SCR 781] which as a succinct 
statement of the rule, cannot indeed be bettered:
[2024] 6 S.C.R. 
407
Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.
‘The question for our consideration is undoubtedly 
one of fact, the decision of which depends upon 
the appreciation of the oral evidence adduced 
in the case. In such cases, the appellate court 
has got to bear in mind that it has not the 
advantage which the trial Judge had in having 
the witnesses before him and of observing the 
manner in which they deposed in court. This 
certainly does not mean that when an appeal 
lies on facts, the appellate court is not competent 
to reverse a finding of fact arrived at by the trial 
Judge. The rule is— and it is nothing more than 
a rule of practice—that when there is conflict 
of oral evidence of the parties on any matter 
in issue and the decision hinges upon the 
credibility of the witnesses, then unless there 
is some special feature about the evidence of 
a particular witness which has escaped the trial 
Judge’s notice or there is a sufficient balance 
of improbability to displace his opinion as to 
where the credibility lies, the appellate court 
should not interfere with the finding of the trial 
Judge on a question of fact.
51. The area in which the question lies in the present 
case is the area of the perceptive functions of the 
trial Judge where the possibility of errors of inference 
does not play a significant role. The question whether 
the statement of the witnesses in regard to what 
was amenable to perception by sensual experience 
as
to what they saw and heard is acceptable or not 
is the area in which the well-known limitation on 
the powers of the appellate court to reappreciate 
the evidence falls. The appellate court, if it seeks 
to reverse those findings of fact, must give cogent 
reasons to demonstrate how the trial court fell into 
an obvious error.
52. With respect to the High Court, we think, that, 
what the High Court did was what perhaps even an 
appellate court, with full-fledged appellate jurisdiction
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would, in the circumstances of the present case, 
have felt compelled to abstain from and reluctant to 
do. Contention (c) would also require to be upheld.”
(emphasis in original)
25.	 In Jagannath v. Arulappa & Anr.8 and H.K.N. Swami v. Irshad 
Basith (Dead) By Lrs.9, this Court has opined that it would be 
wholly improper to allow first appeal without adverting to the specific 
findings of the trial court and that the First Appellate Court is required 
to address all the issues and determine the appeal upon assignment 
of cogent reasons. 
26.	 Having considered the evidence on record and the findings of the trial 
court, the First Appellate Court and the High Court, we are satisfied 
that the First Appellate Court wrongly set aside the Judgment, decree, 
and findings of the trial court without meeting the findings of the trial 
court which could not have been done in exercise of power under 
Section 96 CPC. Therefore, the High Court has rightly set aside 
the Judgment and decree of the First Appellate Court to restore the 
Judgment and decree of the trial court. On independent examination 
also, we have found that the findings recorded by trial court are borne 
out from the evidence on record and are neither perverse nor illegal. 
27.	 Therefore, we find no substance in this appeal which deserves to 
be and is hereby dismissed. 
28.	 The parties shall bear their own costs. 
Result of the case: Review Petition allowed and
Civil Appeal 
dismissed.
†Headnotes prepared by: Nidhi Jain
8	
(2005) 12 SCC 303
9	
(2005) 10 SCC 243