Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2385 (ALL)

Kanwarpal v. Jagpal Singh

2014-08-07

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. Heard Shri Ayank Mishra, learned counsel for the appellant and perused the record. 2. Facts in brief of the present case are that Shri Japal Singh/plaintiff-respondent no.1 has filed a suit registered as Regular Suit No.607 of 2002 on the ground that he may be given 1/8th Share in property which belongs to late Shri Mangat Ram (father of the defendant and plaintiffs) situated in Village-Chapara, Pargana Putachpaar, Tehsil and District-Muzaffarnagar. So far as respondent nos.1 to 6 are concerned, they had filed their written statement admitting the claim of the defendant-appellant and supported the relief as sought by him in the said suit. 3. However, the respondent no.2/Rajkumar contested the matter and filed separate written statement taking a defence that the property in dispute has been given to him by Shri Mangatram by way of unregistered will dated 8.7.1995 4. The trial court on the basis of the material on record as well as oral and documentary evidence by judgment and decree dated 16.10.2007 decreed the suit, challenged by Shri Kanwarpal/defendant-appellant by filing an appeal registered as Civil Appeal No.111 of 2007, dismissed by judgment and decree dated 20.5.2014 passed by Additional District and Sessions Judge, Muzaffarnagar. 5. In view of the above said factual background, present second appeal has been filed by the appellant/Sri Kanwarpal before this Court under Section 100 C.P.C. 6. Learned counsel for the appellant has pressed the present appeal on the following substantial questions of law : - "Whether the facts which was neither pleaded nor argued can be considered by the courts below, while decreed the suit of plaintiff. Whether suit of plaintiff can be decreed on the basis of perverse and wrong finding. Whether the trial court rightly proceeded ex-party against the appellant and can decree the suit of the plaintiff without deciding the application no.74 Ga." 7. While pressing the above said substantial questions of law, learned counsel for the appellant submits that the court below has failed to consider that the house in question which belongs to late Shri Mangatram and by virtue of will deed executed by him the same know belongs to appellant/defendant, as such, the findings recorded by the court below are totally incorrect and the judgment and decree passed by the court below is perverse in nature, liable to be set aside. 8. 8. I have heard learned counsel for the appellant and gone through the records. 9. From the perusal of the judgment and decree passed by the trial court, the position which emerges out is that the trial court while decreeing the suit filed by the plaintiff-respondent has given a categorical finding that, marginal witnesses of the will Shri Anup Singh and Shri Sanjay Kumar in their cross-examination have categorically stated that : ----Hindi---- Further, the appellate court has confirmed the said finding given by the trial court and held that late Shri Mangatram has not executed any will in favour of Shri Kunwar Pal. While giving the said finding, the appellate court categorically held that Shri Anup Singh and Shri Sanjay Kumar have not supported the case of the appellant in respect of the execution of the will then in that circumstances defendant/appellant is under a legal obligation to prove that Sri Mangat Ram executed the will in his favour by putting thumb impression by getting expert opinion in regard to his thumb impression but he failed to do so. Thus keeping in view the said finding of facts given by the Courts below in the present case as well as taking into consideration that the Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100 C.P.C. 10. In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar , 1998 (6) SCC 423 by the Supreme Court as under : - " At the outset , we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible." 11. Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other V. Md. Khalil, 2001 (45) AlR 23 (SC). , wherein it is held : - " 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 where 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." 12. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. 13. In view of the above said facts and circumstances and after a careful consideration of arguments of the respective Counsel, I do not find any error of law in the two concurrent conclusions recorded by the Courts below. No substantial question of law arises in the instant appeal. The judgment under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C. 14. For the foregoing reasons, the present appeal lacks merits and is dismissed . 15. No order as to costs.