Ashok Singh Tomar & another. vs Amarsingh Mali & others

This is an appeal filed by the defendants No.1 and 2 being aggrieved by judgment and decree dated 5.3.2013 passed by 2nd Additional District Judge, Shujalpur, District Shajapur dismissing the Civil Regular Appeal No.21-A/2012 by confirming the judgment and decree dated 21.12.2011 passed by 2nd Civil Judge, Class-II, Shujalpur in COS No.10-A/2009.

Facts of the case, in short, are that the respondent No.1 (hereinafter, “the plaintiff”) filed the suit for declaration of title, declaration of Will dated 6.5.1993 as void and permanent injunction in respect of land bearing Survey Nos. 765 area 1.139 Hect. and 781/1 area 0.748 Hect. situated at Village Chayani, Tehsil Kalapipal (hereinafter, for short, “the suit land”). According to the plaintiff, the suit land was owned by Champabai W/o.

Chhita. She had no issue, therefore, she adopted Shivprasad who had also expired 15 years back. The defendants No.3, 4 and 5 are son and daughter of Shivprasad. Champabai was having other lands also which she partitioned with Shivprasad and the suit land came into her share. According to plaintiff, he purchased the suit land from Champabai in the year 1986 for a total consideration of Rs.90,000/-. The amount was paid in absence of Late Shivprasad and possession was also handed over to him. Champabai assured him for execution of the sale-deed, but the sale-deed could not be executed and plaintiff continued in possession and cultivating the same.

The defendants No.1 and 2, father and son belong to 'Rajput' community, they had no relation with Surajsingh or Champabai. After the death of Champabai, the last rites were performed by defendants No.3 and 4. When the plaintiff applied for mutation on 5.8.2006, then he came to know that the defendant No.1 got mutated his name by way of order dated 12.1.2006 passed by the Tehsildar based on so-called Will dated 6.5.1993. The aforesaid facts gave cause of action to the plaintiff to file the suit for reliefs, as stated above. The plaintiff claimed the title of the suit land by virtue of adverse possession and also sought permanent injunction.

After notice, defendants No.1 and 2 filed the written statement as well as counter claim. By way of counter claim, the defendants No.1 and 2 sought declaration of title by virtue of Will and also possession of the suit land from the plaintiff. The defendants No.3 to 5 did not file any written statement.

On the basis of pleadings in the plaint, written statement and counter claim, learned trial Court framed six issues for adjudication. The plaintiff examined himself as P.W.1, Kishorilal as P.W.2, Chhaganlal as P.W.3, Ramgopal as P.W.4, Harbans Singh Tuteja as P.W.5, Kailash Kumar —

Patwari as P.W.6 and Bhagirath as P.W.7. Plaintiff also got exhibited 15 documents as Ex. P/1 to P/15. The defendants No.1 examined himself as D.W.1, Kailash Narayan as D.W.2, Chandrashekhar (witness of the Will) as D.W.3, Vinay Kumar (writer of the Will) as D.W.4, Omprakash Tomar, Advocate as D.W.5 and Nannulal as D.W.6. Defendants No.1 and 2 also got exhibited 7 documents as Ex. D/1 to D/7. The Will dated 6.5.1993 was exhibited as Ex. D/2.

The learned trial Court after appreciating the oral as well as documentary evidence dismissed the suit as well as counter claim in respect of title over the suit land vide judgment and decree dated 21.12.2011. The trial Court has recorded the finding of possession in favour of the plaintiff and granted the relief of permanent injunction by restraining the defendants from interfering into his possession of the of the plaintiff that too without following the due process of law. Learned trial Court disbelieved the Will in favour of defendant No.1.

Being aggrieved by the aforesaid judgment and decree, the plaintiff filed Civil Appeal No.1-A/2012 and defendants No.1 and 2 filed Civil Appeal No.21-A/12 and the lower appellate Court vide judgment and decree dated 5.3.2013 has dismissed both the appeals.

Being aggrieved by the aforesaid lower appellate Court's judgment and decree, defendants No.1 and 2 filed the present second appeal before this

Court. Along with the appeal, the defendants No.1 and 2 have also filed an application (I.A. No.5756/2017) under Order 41 Rule 27 of the C.P.C. for taking the sale-deed dated 8.7.1980 executed by Champabai and Shivprasad, on record, in order to prove the thumb-impression of Champabai over the Will.

I have heard Shri Anil Kumar Jain, learned counsel for the appellants/defendants No.1 and 2, at length and perused the record of Courts below.

Shri Jain submits that the plaintiff filed the report of handwriting expert who opined that the thumb-impression of Champabai over the Will dated 6.5.1993 is different from the her thumb-impression over the registered sale-deed dated 29.11.1988. According to the defendants No.1 and 2, the thumb-impression over the Will and the thumb-impression over the sale-deed dated 8.7.1980 are the same and the same was not available with the defendants during trial and, therefore, the same is liable to be taken on record and the matter is liable to be remanded back to the trial Court for fresh adjudication. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Union of India V/s. Ibrahim Uddin :

(2012) 8 SCC 148; Shyam Gopal Bindal V/s. Land Acquisition Officer : 2010 (3) MPLJ 74; Gurdwara Sahib V/s. Gram Panchayat : 2014 (3) MPLJ 36; judgment of Kerala High Court in the case of Mathew V/s. Devassykutty : AIR 1988 KERALA 315; judgment of Delhi High Court in the case of Tilak Raj Kakkar V/s. Shambhu Nath Kakkar : AIR 1987 DELHI 360; and judgment of this Court in the case of Babulal V/s. Gendalal : 1986 (I)

MPWN 119.

The defendants has already cross-examined the handwriting expert produced by the plaintiff. When the defendants came up with the Will dated 6.5.1993 in order to seek the relief of title, then the burden was on them to prove the said Will. Though the defendants examined the attesting witnesses and the document-writer in order to prove the Will, but the plaintiff disputed the thumb-impression of Champabai over the said Will and produced the report of handwriting expert, then the defendants ought to have produced the report of handwriting expert in rebuttal. Therefore, in absence of any report of handwriting expert in respect of sale-deed dated 8.7.1980 filed in this appeal, the same cannot be taken on record at this

stage. The defendants had full opportunity before the trial Court as well as before the lower appellate Court to prove the thumb-impression of Champabai over the will. The defendants No.1 and 2 have also not disclosed as to how and when they came to know about the sale-deed dated 8.7.1980, hence at this stage, the said document cannot be taken on record. Accordingly, I.A. No.5756/2017 stands rejected.

So far as merits of the case are concerned, the plaintiff filed the suit on the basis of adverse possession over the suit land. Both the Courts below have concurrently denied the relief of title on the pretext of adverse possession and the plaintiff did not file any second appeal before this Court, therefore, said finding has attained finality. The trial Court has granted the relief of permanent injunction and according to the present appellants, the plaintiff is in possession over the suit land, therefore, the said relief is not liable to be interfered with as the defendants No.1 and 2 have failed to establish their title over the suit land.

So far as the concurrent findings recorded by both the Courts below in respect of Will are concerned, I do not find any question of law much less substantial question of law involved in this appeal for the simple reason that the so-called Will said to have been executed on 6.5.1993 and both the Courts found suspicion over the said Will as there are thumb-impressions of Champabai on 3 places and there is no averment in the Will as to why she is executing the Will in favour of defendant No.1 who is not related to her and she has also not made any arrangement for her survival till her death.

She died after 18 years of the execution of the Will, therefore, therefore, there was no reason for Champabai to execute the said Will in favour of defendant No.1. The defendants examined Shri Vinay Kumar as document-writer who has admitted in his cross-examination that being a registered document-writer he is having stamp (seal) and maintaining the register. He has also admitted that he used to write the serial number and the register number in the document and deposits the register in the office of Registrar. He has further admitted that in the Will i.e. Ex. D/1, there is no serial number and page number of the register. He has also not put his stamp below his name in the Will. Para 10 of the evidence of the said witness is

reproduced below :-

“10- ;g lgh gS fd nLrkost ys[kd ds ikl iath;u~ izek.k&i= feyus ds ckn og tks Hkh nLrkost fy[krk gS mldk jftLVj j[krk gS vkSj ml jftLVj esa Øekad vkfn dk bUnzkt djrk gSA ;g lgh gS fd izR;sd jftLVj iath;d dk;kZy; esa tek fd;k tkrk gSA ;g lgh gS fd tks jftLVj esa bUnzkt fd;k tkrk gS mldk uacj nLrkost ij Hkh i`""Bkadu bUnzkt fd;k tkrk gSA ;g lgh gS fd izn'kZ Mh &1 ds olh;rukesa ij jftLVj ds ljy Øekad ,oa i`""Bkadu ds lkFk gh nLrkost ys[kd dh eqnzk vafdr ugh gSA”

Thus, above part of evidence of Vinay Kumar (D.W.4) completely demolished the case of the defendants and the learned trial Court as well as lower appellate Court have rightly doubted and shown suspicion over the said Will. The concurrent findings recorded by both the Courts below are not liable to be interfered with in this second appeal. Hence, I do not find any question of law much less substantial question of law involved in this appeal.

Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

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.

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 Reserve Bank of India v. Ramkrishna Govind Morey [AIR

1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

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 100 CPC, 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 Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

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.

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, this appeal does not involve any question of law much less substantial question of law and the same is hereby dismissed.

No order as to costs.