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2022 DIGILAW 746 (RAJ)

Mohan Lal Agarwal v. Gopal Ram Gupta

2022-03-04

SUDESH BANSAL

body2022
ORDER 1. This second appeal has been directed against judgment and decree dated 14.11.2003 passed by Additional Civil Judge (Senior Division) No.1, Bharatpur whereby appellant-plaintiff's suit for possession was dismissed and counter claim of respondent- defendant was decreed, declaring the will dated 22.07.1988 made in favour of plaintiff as null and void and the judgment and decree has been affirmed in first appeal, vide judgment dated 18.11.2009. 2. The facts of case as culled out from record are that the appellant-plaintiff and deceased respondent-defendant are brothers and dispute between them is about the house situated at Basangate, Bharatpur. The house was purchased through a registered sale deed dated 11.10.1961 in the name of mother Smt. Somoti Devi. Since after purchasing of house, defendant was residing there as deceased defendant was doing practice as an Advocate at Bharatpur. Mother Smt. Somoti Devi appointed the deceased defendant (being her son) as her power of attorney holder vide registered power of attorney dated 15.03.1962 and authorized him to maintained, used and dealt with tenants in house as power of attorney holder. Later on power of attorney was revoked and cancelled on 16.12.1989. Mother executed a registered will dated 22.07.1988 in favour of appellant-plaintiff and bequeathed the house in question in his favour. Mother has passed away on 19.06.1990, thereafter, appellant-plaintiff instituted a civil suit for declaration, possession and permanent injunction on 07.01.1992 alleging inter alia that his mother Smt. Somoti Devi was sole owner of house in question and her ownership rights have been devolved upon appellant-plaintiff by virtue of her will, therefore, appellant-plaintiff be declared as sole owner of house in question. It has been averred that power of attorney of defendant had already been cancelled and thereafter his possession over the house is illegal. It was claimed that appellant-plaintiff is entitled to obtain possession of house in question from defendants. Appellant-plaintiff also claimed accounts and arrears of rent received by the defendant from tenants from January, 1987 up to the date of filing of suit and mesne profits at the rate of Rs.500/- per month from January, 1992 onwards till delivery of possession. 3. Original defendant submitted written statement on 10.07.1992. It has been contended therein that house in question was purchased out of funds of hindu joint family by their father Shri. Munna Lal in the name of mother. 3. Original defendant submitted written statement on 10.07.1992. It has been contended therein that house in question was purchased out of funds of hindu joint family by their father Shri. Munna Lal in the name of mother. It has been contended that as defendant had completed his graduation in law in the year 1961, his father was desirous that deceased defendant should start practice as an Advocate at Bharatpur and therefore for the purpose of residence and office for defendant, the house in question was purchased. After purchase of property, same was got renovated and entire expenses were incurred out of income from the business of firms of joint hindu family. Thus, it was contended that the mother was not real owner of the property in question. It is contended that since purchase of property in question, respondent is using and maintaining the property. Father and mother, during their life time always lived at Kaman and never lived in house in question at Bharatpur. The house in question, since inception is laying in exclusive use and possession of defendant. Defendant also challenged the will of plaintiff dated 22.07.1988 and filed counter claim seeking declaration that will dated 22.07.1988 be declared as ineffective, null and void. 4. The trial Court, on basis of rival pleadings of both parties, settled issues. Both parties adduced their respective evidence in support of issues. The trial Court, after appreciation of evidence on record reached to conclusion that house in question was purchased out of funds of joint hindu family and mother Smt. Somoti Devi was not real and sole owner. As such the trial Court 18.11.2009. The first Appellate Court again appreciated entire evidence, pleadings and documents on record. The will in question was also examined and its legality and validity was considered. The Appellate Court, affirmed findings of the trial Court The appellate Court also observed that mother Smt. Somoti Devi was pardanashin and old lady, it appears that plaintiff, taking benefit of her old age has got executed will in his favour. The relevant portion of findings of first Appellate Court reads as under:- 5. Since the will dated 22.07.1988, on basis of which plaintiff claimed his sole ownership over the house in question has been declared as null and void, the prayers of plaintiff for declaration of his ownership and for possession, mesne profit and permanent injunction were also declined. The relevant portion of findings of first Appellate Court reads as under:- 5. Since the will dated 22.07.1988, on basis of which plaintiff claimed his sole ownership over the house in question has been declared as null and void, the prayers of plaintiff for declaration of his ownership and for possession, mesne profit and permanent injunction were also declined. As a result, plaintiff's suit was dismissed and defendant's counter claim was decreed. 6. Appellant-plaintiff has challenged judgment and decree dated 14.11.2003, by way of filing first appeal, which was dismissed by the first Appellate Court, Bharatpur vide judgment dated 18.11.2009. The first Appellate Court again appreciated entire evidence, pleadings and documents on record. The will in question was also examined and its legality and validity was considered. The Appellate Court, affirmed findings of the trial Court The appellate Court also observed that mother Smt. Somoti Devi was pardanashin and old lady, it appears that plaintiff, taking benefit of her old age has got executed will in his favour. The relevant portion of findings of first Appellate Court reads as under:- 7. Having heard counsel for both parties and perusal of impugned judgments, it is apparent that the trial Court has recorded findings after due appreciation of statements of both parties and their witnesses. Document of will dated 22.07.1988 has also been examined. The will dated 22.07.1988 is available on record as Exhibit-17. It is not in dispute that at the time of execution of will dated 22.07.1988, the house in question was in exclusive, use and possession of defendant. Mother had executed power of attorney dated 15.03.1962 in favour of defendant which was said to be revoked on 16.12.1989. Mother in her life time never asked for possession of house in question nor asked the defendant to vacate the house in question. In will also, there are no averments about possession of house in question. Both the Courts below have concurrently held that mother was not authorized and had no right to execute will. Further the Appellate Court has found that will is suspicious and not a genuine document. All these findings are based on evidence available on record. Counsel for appellant-plaintiff could not point out any illegality and perversity in findings passed by two Courts below in impugned judgments. Further the Appellate Court has found that will is suspicious and not a genuine document. All these findings are based on evidence available on record. Counsel for appellant-plaintiff could not point out any illegality and perversity in findings passed by two Courts below in impugned judgments. Since appellant-plaintiff claimed his sole ownership and prayed for exclusive, possession of house in question, on the basis of the will and after declaration of will as null and void, his suit is obviously liable to be dismissed and thus has rightly been dismissed. Although there are findings on record that house in question was purchased out of funds of joint hindu family, however, as there is neither any claim nor any prayer for partition of house in question, no relief can be granted to plaintiff in present proceedings. 8. The substantial questions of law as proposed by appellant- plaintiff are essentially questions of fact which requires reappreciation of evidence. Reappreciation of evidence is not permissible within scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings of impugned judgments. None of the question of law, falls within 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. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case 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 ] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [ (2019) 10 SCC 595 ]. Since no substantial questions of law are involved in present appeal thus, same is not liable to be entertained. Accordingly, the second appeal is found to be without force and same is hereby dismissed. There is no order as to costs. 10. Record of both Courts below be sent forth. 11. All pending application(s), if any, also stand(s) disposed of.