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2022 DIGILAW 1975 (RAJ)

Kanhaiya Lal v. Mandir Shri Sitaramji

2022-07-07

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 25.05.2016 passed by the Court of Additional District Judge, Malpura, Distt. Tonk (Raj.) in Civil Regular Appeal No.26/2011 affirming the judgment and decree dated 06.07.2011 passed by the Court of Civil Judge (Junior Division), Malpura in Civil Suit No.10/2005 whereby and whereunder appellant-plaintiff's suit for cancellation of will of his mother and permanent injunction in relation to 1/4th share of mother over the agricultural land in question has been dismissed. 2. Heard learned counsel for appellant and perused the impugned judgments. 3. It appears from the record that one Birdi Chand was survived by his wife namely Magdu and two sons namely, Kanhaiyalal and Munna @ Banshilal and one daughter Chand had agricultural land. He died intestate, hence his legal representatives got the khatedari rights in equal 1/4th share of each. Plaintiff's mother Magdu executed a will dated 20.07.2004, which was registered before the Sub Registrar, Malpura, for her 1/4th share of khatedari right (undivided) in favour of temple Shri Sitaramji (respondent No.1 herein). She died on 30.09.2004. Thereafter mutation open on 04.11.2004 and her 1/4th share was sanctioned in the name of temple. Thereafter plaintiff, has instituted the present civil suit on 27.01.2005 for seeking cancellation of will of his mother on the ground that his mother had gone insane prior to execution of will and legally she could not bequeath undivided portion of 1/4th share of the agricultural land. Further the plaintiff alleged that on the entire agricultural land, he is in cultivation and possession. The plaintiff admits in his plaint that his brother Munna @ Banshilal and sister Chand do not want to challenge the will hence they have been impleaded as defendant Nos.2 and 3. Plaintiff's suit was put for trial and evidence was adduced by both parties. On appreciation of evidence, the trial court has recorded a fact finding that there is no evidence on record to show that plaintiff's mother had gone insane prior to execution of the will. The trial court has placed reliance on admission of plaintiff that he has not produced any document showing unsoundness of his mother and he admits that since she usually wanders here and there therefore, plaintiff treated her as insane. The trial court has placed reliance on admission of plaintiff that he has not produced any document showing unsoundness of his mother and he admits that since she usually wanders here and there therefore, plaintiff treated her as insane. The statements of PW-1, PW-2 and PW-3 were not found sufficient to prove the mental status of plaintiff's mother as insane. Plaintiff also raised a legal plea that the will is against the provisions of Section 4(2) of Hindu Succession Act as well as stands violated to Section 118 of the Indian Succession Act, 1925 however, both these objections were turned down by the trial court. The trial court observed that as far as Section 4 (2) of Hindu Succession Act, 1956 is concerned, the same has been omitted and Section 118 of the Indian Succession Act, 1925 does not apply to the facts of the present case. In relation to the possession of plaintiff's, the trial court recorded a fact finding that the plaintiff and his witnesses do not belong to the village where the land in question is situated and their oral statements to show the possession of plaintiff over the land in question were found insufficient. Finally the trial court dismissed the plaintiff's suit vide judgment dated 06.07.2011. 4. Plaintiff preferred first appeal against the judgment and decree dated 06.07.2011. The first appellate court re-heard and re-appreciated the whole matter and concurred with the fact findings by the trial court, finally first appeal was also dismissed vide judgment dated 25.05.2016 hence concurrent findings of fact this second appeal has been preferred. 5. Having heard learned counsel for appellant and on perusal of record, this Court finds that both the courts have appreciated the evidence on record and has concluded that the plaintiff has not produced any evidence to show that his mother had gone insane prior to execution of the will. His mother was undoubtedly co-sharer for 1/4th undivided share in the agricultural land and she has bequeathed her undivided 1/4th share by way of will in question in favour of temple Shri Sitaramji. Both the courts did not find any cogent and convincing evidence on record to hold the possession of plaintiff over the entire agricultural land left out by his father. Admittedly, brother and sister of plaintiff have declined to join the plaintiff in the suit in order to assail the will made by their mother. Both the courts did not find any cogent and convincing evidence on record to hold the possession of plaintiff over the entire agricultural land left out by his father. Admittedly, brother and sister of plaintiff have declined to join the plaintiff in the suit in order to assail the will made by their mother. 6. Learned counsel for appellant-plaintiff has not been able to prove his case or to point out any perversity or make out any substantial question of law in respect of the judgment and decree passed by courts below. There are concurrent findings of fact. The substantial questions of law as proposed by appellant-plaintiff are essentially questions of fact requiring re-appreciation of evidence, which is not permissible within the scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings. None of the question of law, falls within the purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. 7. The Hon'ble Supreme Court In cases of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [ (2001)9 SCC 521 ], Thulasidhara & Anr. Vs. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram Vs. Ameerchand, [ (1981)2 SCC 414 ], Ishwar Das Jain Vs. Sohan Lal, [ (2000)1 SCC 434 ] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [ (2019)10 SCC 595 ], C. Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and ors. [ (2020)4 SCC 659 ], has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, reappreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. 8. Learned counsel for appellant also could not point out that the findings of fact recorded by two courts below are suffered from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal. 8. Learned counsel for appellant also could not point out that the findings of fact recorded by two courts below are suffered from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal. Subsequently is sine qua non for exercising the jurisdiction under Section 100 CPC and to entertain the second appeal. Hence, the second appeal is found to be devoid of merits and the same is dismissed. 9. No order as to cost. 10. As far as partition of agricultural land in question is concerned, it is always open for parties concerned to seek partition of agricultural land in respect to their respective shares before the revenue court. 11. Record be sent back forthwith. 12. Stay application and any other pending application(s), if any, stand(s) disposed of.