Sitaram Yadav and Others vs Sant Lal Yadav and Others

Mungeshwar Sahoo, J.—The plaintiffs respondents appellants had filed the aforesaid partition suit claiming half share in the property alleging that Bhikhaniya Devi was the daughter of Shiv Prasad Yadav who died in the year 1962 and, therefore, his half share in the property devolved on Bhikhaniya Devi, the original plaintiff. The defendants'' case is that Bhikhaniya Devi was not the daughter of Shiv Prasad Yadav and that Shiv Prasad Yadav died in the year 1922 and, therefore, no property will devolve on the daughter Patna High Court SA of107 of 1992 dt.24-07-2012

The trial court recorded a finding that Bhikhaniya Devi was the daughter of Shiv Prasad Yadav and also Shiv Prasad Yadav died after coming into force of Hindu Succession Act, 1956. The defendants respondents filed appeal before the lower appellate court. The lower appellate court recorded the contrary finding that Bhikhaniya Devi was not the daughter of Shiv Prasad Yadav and further held that even if she was daughter then also because Shiv Prasad Yadav died prior to coming into force Hindu Succession Act, 1956 the property will not go to the daughter.

The appeal was admitted on 29.11.1999 and the following two substantial questions of law were formulated :

(i) Whether the appeal could have been decided by the lower appellate court against the plaintiffs appellants without hearing them as is obvious from perusal of the order-sheet dated 23rd March 1992 and 27th March 1992 of the appellate court that notices were not served nor they were heard

(ii) Whether without reversing the findings of the trial court the suit could have been dismissed (wrongly typed as decreed) by the lower appellate court

The learned senior counsel Mr. Raghiv Ahasan appearing on behalf of the appellants during the course of hearing of this second appeal submitted that in fact another substantial question of law is involved in this case therefore, the same may be formulated. According to the learned counsel the lower appellate court while recording finding that Shiv Prasad Yadav died prior to 1956 the lower appellate court has not considered evidences of PW 5 and 7 properly and the finding is based on surmises and conjectures.

On the other hand, the learned counsel for the respondents submitted that so far the two substantial questions of law formulated are concerned are not at all substantial question of law involved in this second appeal because if at all no notice was served on the appellants they could have filed an application for rehearing of the appeal under Order 41 Rule 21 C.P.C. and in that proceeding the question of service of notice could have been investigated. According to the learned counsel in second appellate jurisdiction this court now cannot tern itself to be a Court hearing an application under Order 41 Rule 21 C.P.C. and record a finding that in fact no notice was served without there being any evidence before this Court. So far second substantial question of law is concerned, according to the learned counsel the lower appellate court has set aside the judgment of the trial court therefore, it is not necessary to specifically mention in the finding portion that the finding of the trial court is reversed. So far the ground raised by the appellants is concerned, the learned counsel for the respondents submitted that the grounds raised today is also not a substantial question of law. According to the learned counsel whether the judgment of the trial court based on surmises and conjectures is not a substantial question of law and likewise adequacy or inadequacy of the evidence or no proper appreciation of evidence is also not a substantial question of law.

Admittedly, from perusal of the lower appellate court judgment it appears that at the time of hearing of the appeal before the lower appellate court the appellants herein who were respondents did not appear. So far non-service of notice is concerned, in fact if no notice has been served then the appellants could have approached the same court and prove the fact that in fact no notice was served on them. Before this court in second appeal for the first time this disputed question of fact cannot be gone into particularly, when there is no evidence adduced by any of the parties. In my opinion, therefore, so far this first substantial question of law is concerned, it does not arise for consideration in this appeal. Further this was the subject matter of the Order 41 Rule 21 application but certainly same cannot be examined in second appellate jurisdiction. So far second substantial question of law is concerned, from perusal of the lower appellate court judgment it appears that the lower appellate court considering the materials available on record given a contrary finding deferring the finding of the trial court. In such circumstances, only on the ground that the lower appellate court has not mentioned in the judgment that the finding of the trial court is reversed it cannot be said that the judgment of the lower appellate court is vitiated.

So far the grounds raised by the learned counsel for the appellants for framing further substantial question of law stated is concerned it is in two parts. Firstly, that the lower appellate court has not properly appreciated the evidence. In other words the finding of the lower appellate court is based on surmises and conjectures and secondly, that the lower appellate court while reversing the trial court judgment the reasoning of the trial court was not considered. So far the question regarding surmises and conjectures is concerned in the case of Kanakala Adinarayana vs. Karnakala Suryakantham (2005) 13 SCC 377 the Apex Court held that whether Court''s finding is based on material or based on surmises and conjectures is not a substantial question of law. So far non-meetings of reasonings of the trial court is concerned the Apex Court in the case of R. Ramachandran Ayyar Vs. Ramalingam Chettiar, has held that second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come close grief with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate court to interfere with such finding of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the trial court. This decision of the Apex Court has again been reiterated subsequently by the Apex Court in Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, Arumugham v. Sundarambal. It may be mentioned here that this is the consistent view of the Apex Court. Here in the present case, from perusal of the judgment of the lower appellate court it appears that at para 6 and 7 the lower appellate court has given good grounds for not agreeing with the finding of the trial court and has properly met the reasonings of the trial court. Therefore, it is not a case here that the lower appellate court has not at all considered the reasonings of the trial court. In my opinion, therefore, the substantial question of law sought to be framed today is also not a substantial question of law involved in this second appeal for decision. Therefore, the substantial questions of law formulated and sought to be formulated are answered against the appellants. Thus, there is no merit in this second appeal and accordingly, this second appeal is dismissed.