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IQBAL AHMAD AND OTHERS versus ABDUL WAHEED AND OTHERS

High Court of Judicature at Allahabad

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Iqbal Ahmad And Others v. Abdul Waheed And Others - SECOND APPEAL No. 2948 of 1983 [2005] RD-AH 1269 (6 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Second Appeal No. 2948 of 1983

Iqbal Ahmad and others Vs. Abdul Waheed and others

~~~~~

Hon'ble Dilip Gupta, J.

This Second Appeal has been filed by the defendants of Original Suit No. 993 of 1980 for setting aside the judgments and decree of both the courts below. The said Suit had been filed for cancellation of the Will deed dated 4.4.1975 executed by late Dawar Husain. The Suit was decreed by the XI Additional Munsif, Allahabad. Feeling aggrieved Civil Appeal No. 271 of 1982 was filed by the defendants, which was dismissed with costs by the VII Additional District Judge, Allahabad by means of the judgment and decree dated 2.11.1983.

The case as set out in the Plaint was that the father of the plaintiff late Dawar Husain was a Bhumidhar of a number of plots in Chak No. 88 of village Inayat Patti, Pargana Mah, district Allahabad. After the death of Dawar Husain, the name of the plaintiff and his two brothers, namely, Abdul Wahid and Abdul Hamid was mutated as they were the successors as sons of the deceased. Before the consolidation authorities, the defendants in the mutation case relied upon the Will said to have been executed by late Dawar Husain on 4.4.1975. Paragraph Nos. 5,6 and 7 of the Plaint which are relevant for the purposes of the controversy involved are quoted below:-

"5. That the defendants at a subsequent stage in the said mutation case relied on a forged WILL alleged to be executed by late Dawar Husain and are threatening to invade on plaintiff's rights and title on the basis of said forged deed alleged to be will deed executed by late Dawar Husain on 4.4.1975.

6. That in view of said illegal activities and threat of the defendants the plaintiff deem it necessary to get the said WILL declared and adjudged null and void and cancelled.

7. That late Dawar Husain never executed any will in favour of defendants nor there was any occasion to do so. The plaintiff contends that the said will deed dated 4.4.1975 allegedly executed by late Dawar Husain is forged and does not bear signature and T.I. of late Dawar Husain. In any view of the matter the said will deed even if be found to be bearing his signature or T.I. is liable to be cancelled and adjudged void on the following amongst other grounds.

(a) Because late Dawar Husain never executed the document and same does not bear his signature.

(b) Because late Dawar Husain was a literate person and used to sign but the deed is said to bear T.I.

(c) Because in any case the document was never executed by his free will and accord by late Dawar Husain and it is tainted with fraud. Even if it be found bearing T.I. of late Dawar Husain it was procured by practicing fraud and mis-representation.

(d) Because late Dawar Husain was over about 110 years of age at the time when the said will deed is alleged to have been executed. He was totally incapacitated unable to hear, speak or understand things.

(e) Because late Dawar Husain never executed the will knowing it to be a WILL.

(f) Because in the presence of plaintiff and other sons there was no occasion or reason to execute the will particularly when he was happy with the sons and depending upon the plaintiff for necessities.

(g) Because the alleged will deed is fraudulent and is liable to be cancelled and be treated as void." (emphasis supplied)

The plaintiffs, therefore, claimed a decree for cancellation of the will deed dated 4.4.1975 executed by late Dawar Husain.

A written statement was filed on behalf of the defendants. It was stated that late Dawar Husain had executed the Will in their favour on 4.4.1975 and that since the village was still under Consolidation operation and the case was pending between the parties, the suit was barred under the provisions of Sections 5(2) and 49 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the ''Act').

The trial court framed a number of issues including the issues whether the Will deed was obtained by fraud and whether the Suit was barred under the provisions of Sections 5(2) and 49 of the Act. The trial court held that the Will deed dated 4.4.1975 was not executed by Dawar Husain out of his free will and that his physical mental condition was not sound at the time of the execution of the said deed. It was further held that a forged document had been set up in order to deprive the plaintiffs of the property in Suit and that the Suit was not barred under the provisions of Sections 5(2) and 49 of the Act. The Suit was, accordingly, decreed and the Will deed dated 4.4.1975 was cancelled.

Feeling aggrieved, the defendants filed a Civil Appeal in the court of VII Additional District Judge, Allahabad being Civil Appeal No. 271 of 1982. The appellate court examined as to whether the Deed was voidable or void because according to it, if it was voidable, the cancellation could be sought only in the civil court. The appellate court, after scrutinizing the pleadings in the Plaint, held that it was a voidable document and, therefore, held that its cancellation could only be sought in the civil court. The Appeal was, accordingly, dismissed.

This Court while admitting the Second Appeal, framed the following substantial questions of law:-

"A) Whether the court below ignoring the plaint case and also the statement of P.W. can held that the will deed is voidable and the suit is maintainable in civil court,

B) Whether proceedings before consolidation courts and in civil court are maintainable on the same cause of action and between the same parties simultaneously."

I have heard the learned counsel for the parties and have examined the materials available on record.

Learned counsel for the appellants submitted that from a perusal of the averments made in paragraph Nos. 5 and 7 of the Plaint, the only inference that can be drawn, is that late Dawar Husain never executed the Will dated 4.4.1975 in favour of the defendants and, therefore, in such circumstances the Will was void and not voidable and as such the civil court had no jurisdiction since the will deed could be ignored by the consolidation authorities. He, therefore, submitted that the trial court had committed a manifest error of law in decreeing the Suit and so had the appellate court while dismissing the Appeal. Learned counsel for the plaintiff respondents, however, contended that the Suit was not barred under the provisions of Sections 5(2) and 49 of the Act; the Deed was voidable and, therefore, the civil court had the jurisdiction in the matter. He further contended that even if the Deed was taken to be void, then too the civil court had the jurisdiction.

Before dealing with the submissions advanced by the learned counsel for the parties, it may be pertinent to reproduce the provisions of Sections 5(2) and 49 of the Act which are as follows:-

"5. Effect of notification under Section 4(2)......

(2) Upon the said publication of the notification under sub-section (2) of Section 4 the following further consequences shall ensure in the area to which the notification relates, namely-

(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act,  pending before any court or authority whether of the first instance or of appeal, reference or revision,  shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated:

Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:

Provided further that on the basis of a notification under sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part, as the case may be, shall stand vacated;

(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.

49. Bar to Civil Court Jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land by the lying in an area, for which a notification has been issued under sub-section (2) of Section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act,  shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act:

Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act."

Law is well settled that exclusion of the jurisdiction of the civil court is not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied. The Supreme Court in Abdul Waheed Khan Vs. Bhawani and others reported in AIR 1966 SC 1718 held as follows:-

"It is settled principle that it is for the party who seeks to oust the jurisdiction of civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed."

A Full Bench of this Court in Ram Padarath and others Vs. Second Addl. D.J., Sultanpur and others reported in 1989 (15) A.L.R. 19 held as follows:-

"Suit for cancellation of a sale-deed or other instruments and documents are essentially suits of civil nature. Every suit of civil nature is cognizable by a civil court except cognizance of which is expressly or impliedly barred.

Section 31 of the Specific Relief Act makes specific provision for cancellation of void as well as voidable instrument. Suits for cancellation of such documents being of civil nature are cognizable by a civil court and even otherwise suits claiming relief provided under Specific Relief Act are entertainable only by a civil court and no revenue court or any other court can entertain such a suit including for cancellation of an instrument or document.

..............

Thus one who has reasonable apprehension that any instrument if left outstanding may cause him serious injury can approach a competent court of law to get it cancelled. Sub-section (2) of Section 31 casts a mandatory duty upon the court passing a decree to send a copy of the same to the registering officer, who is enjoined by law to make a note on the copy of such document regarding the order of its cancellation passed by a particular court and after such an endorsement is made, the document becomes legally ineffective and no benefit of the same can be derived by any one. If a certified copy of such a document is issued it would obviously contain the note regarding its cancellation by a court of law.

So far as voidable documents like those obtained by practicing coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granting some other relief instead of cancelling it."

The Supreme Court in Gorakh Nath Vs. H.N. Singh reported in AIR 1973 SC 2451 while dealing with the provisions of the Act regarding exclusion of civil court jurisdiction held as follows:-

"3. ......... We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any Court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.

The aforesaid passage of the judgment of the Supreme Court came up for consideration before a Full Bench of this Court in the case of Ram Nath Vs. Smt. Munna reported in 1976 RD 220 since it was sought to be contended that the decision of the Supreme Court in Gorakh Nath (supra) did not decide the question about the application of Section 5 of the Act to suits for cancellation of the sale deed in respect of the voidable documents. The Full Bench observed as follows:-

"A reading of this passage shows that the Supreme Court had not agreed with the decision of this court in J.N. Shukla Vs. S.R. Pande's reported in 1969 A.L.J. 768 to the effect that both void and voidable instruments stood at par with reference to Section 5 of the U.P. Consolidation of Holdings Act. It had found a distinction between the two types of documents. The void documents, it found, were invalid and were liable to be disregarded by the consolidation authorities. So far as the other class of documents, viz., the voidable documents was concerned, the observation of the Supreme Court is clearly to the effect that their legal effect can be taken away only by their being cancelled or set aside and that the documents could be cancelled only by a court having power to cancel them and that the documents remain binding so long as they were not cancelled. It is further clear from the judgment that the consolidation authorities had no power to cancel such documents. These observations of the Supreme Court in our opinion, are sufficient declaration of the law that the documents which are voidable can be cancelled by the Civil Courts only and cannot be cancelled by consolidation authorities and they remain effective till cancelled and liable to be given effect to by consolidation till they are cancelled by a competent court. In view of this law declared by the Supreme Court there can be no doubt that the suit in respect of cancellation of voidable sale deed will not abate under Section 5 of the U.P. Consolidation of Holdings Act.

4. We find that the Supreme Court had before it the specific question for decision about the applicability of Section 5 of the U.P. Consolidation of Holdings Act to suits for cancellation of voidable sale deeds. It disagreed with the view of this court in the Division Bench case of J.N. Shukla Vs. S. R. Pande where the voidable and void documents had been put at par with reference to Section 5 of U.P. Consolidation of Holdings Act and it pointed out the distinction between the two types of documents and had also given the reasons why a document which was only voidable was effective till cancelled by a court competent to cancel the same. After laying down this law the Supreme Court applied it to the facts of the case before it and came to the conclusion that the document was pleaded to be void and for that reason held that the suit was liable to be abated."

The aforesaid position was reiterated by the Supreme Court in the case of Smt. Bismillah Vs. Janeshwar Prasad and others reported in AIR 1990 SC 540 and Ram Sakal Singh Vs. Mosamat Monako Devi (Dead) and others reported in 1997 Allahabad Civil Journal, 1154. In the latter case it was held as follows:-

"8. It is thus settled law that if the document is invalid, it can be disregarded by the court or the authority and it may proceed to consider declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act. Since we have in the present case proceedings before the consolidation authorities, it would necessarily imply in the adjudication of a dispute involving conflicting claims in respect of rights or interests in land which is the subject-matter of the proceedings before the consolidation authorities but if a dispute relating to the land was in respect of the land and was based upon a document where its validity is impugned, it is for the court to declare such document effective or ineffective and the legal effect would hinge upon such a declaration. Based thereon, if the document requires to be set aside or cancelled, the consolidation authorities under the Act have no power to cancel such deed. Therefore, the proceedings would not abate. As held, if the document is void, the proceedings pending in any court or authority stand abated.

9. Therefore, the civil court get jurisdiction to declare the document to be voidable. In consequence, the notification under Section 3(1) does not have the effect of abatement under Section 4 (1) (c) of the Act. If the document is void, there would be no need to set aside or cancel the document/deed. Then the consolidation authorities get exclusive jurisdiction to deal with all questions relating to declaration of a right or interest in any land or for declaration or adjudication of any other right in regard to such proceedings. The court or authority before whom any suit etc. is pending should record that the suit or proceedings have abated leaving it to the parties to avail of the remedy under the Act."      

From the aforesaid decisions it is more than apparent that if the document is voidable, then the civil court alone has the jurisdiction to cancel it and the jurisdiction of the civil court is not ousted under the provisions of Section 5(2) of the Act.

It is true that the question of jurisdiction depends upon the allegations made in the plaint and not the merits or the result of the suit. The Supreme Court in the case of Smt. Bismillah (supra) held as follows:-

"3. .............  It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of law which seek to oust the jurisdiction of Civil Court needs to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognizable by the Civil Court while in the later, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est.

 

4................ It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by the High Court the expression ''void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "parties do not have the farsight of prophets and their lawyers the draftsmanship of a chalmers".          

The Supreme Court in Ningawwa Vs. Byrappa Shiddappa Hireknrabar and others reported in AIR 1968 SC 956 drew a distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof and held as follows:-

"4............. It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.

5. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."

In the present case, the Ist appellate court after a careful analysis of the averments made in the plaint came to the conclusion that the plaintiffs had also alleged that the impugned Will deed was obtained by fraud and that they had not denied the character of the document but had simply challenged the contents of the documents and, therefore, from the pleadings it was clear that the document was a voidable document and its cancellation could be sought only from the civil court.

Learned counsel for the appellants, however, submitted that the aforesaid findings recorded by the Ist appellate court are not correct inasmuch as a perusal of paragraphs 5 and 7 of the plaint would clearly show that the cancellation of the Will deed had been sought on the ground that it was a void document.

Learned counsel for the respondents, however, submitted that the findings of fact recorded by both the courts below should not be interfered with particularly when the courts below have drawn a conclusion from a reading of the documents. He further submitted that the conclusion drawn by the courts below was a plausible conclusion and it cannot be urged that it was wholly perverse or against the records. According to him, the substantial questions of law framed by this Court did not arise for consideration at all because in case it was a voidable document, then the civil court alone had jurisdiction to try the suit for cancellation of the Will deed.

The scope of Section 100 of the Code of Civil Procedure has been explained by the Supreme Court in a number of decisions. In Panchugopal Barua Vs. Umesh Chandra Goswami reported in (1997) 4 SCC 713 the Supreme Court while explaining the scope of Section 100 of the Code of Civil Procedure observed as follows:-

"7. A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ''substantial question of law' is thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C."

In Kshitish Chandra Purkait Vs. Santosh Kumar Purkait reported in (1997) 5 SCC 438 the Supreme Court observed as follows:-

"10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline."

In Sheel Chand Vs. Prakash Chand reported in (1998) 56 SCC 683 the Supreme Court observed as follows:-

"The question of law formulated by the learned Single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial question of law. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 CPC. It appears that the learned Single Judge overlooked the change brought about to Section 100 CPC by the amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 CPC."

In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others reported in (1999) 3 SCC 722 the Supreme Court observed as follows:-

"4. ......... It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds.

5. 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.

6. If the question of law termed as a substantial question 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 or law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V. Ramkrishna Govind Morey reported in (1976) 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."

In Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. reported in AIR 2001 SC 965 the Supreme Court while pointing out what would constitute is substantial question of law, observed as follows:-

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ''substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law ''involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

This judgment has been followed in a number of decisions including Thiagarajan & others Vs. Sri Venugopalaswamy B.Koil & others (2004) 5 SCC 762 and Govindaraju Vs. Mariamman reported in 2005 AIR SCW 916.

In the case of Thiagarajan and others (supra) the supreme Court also held as follows:-

"23. In our opinion, the High Court has erred in holding that the appellants have failed to establish inter alia to the suit property evidently without appreciating the evidence on record in its proper perspective by making any reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under S. 100, C.P.C. In our view, the learned single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under S. 100, C.P.C.

24. In the present case, the lower appellate Court fairly appreciated the evidence and arrived at a conclusion that the appellants suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material.

25. To say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible."

In Kashibai w/o Lachiram and another Vs. Parwatibai w/o Lachiram and others reported in (1995) 6 SCC 213 the Supreme Court observed as follows:-

"12. .......... It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view."

In Ram Prasad Rajak Vs. Nand Kumar and Bros. and another reported in AIR 1998 SC 2730 the Supreme Court observed as follows:-

"7............... Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the second appeal and consider the merits.

8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court it is evident that it had interfered with a finding of fact arrived at by the Second Additional District Judge, Giridih in the first appeal on an appreciation of the evidence. The High Court made an attempt to re-appreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact after a scanty discussion of the evidence, the High Court observed: "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide necessity." The High Court has acted beyond its jurisdiction in appreciating the evidence on record."

In Govindaraju (supra) the Supreme Court observed as follows:-

"19. Even if the High Court was of the view that the findings of fact recorded by the courts below were wrong, in our opinion, these findings of fact could not be disturbed without coming to the conclusion that the findings recorded were perverse i.e. based on misreading of evidence or based on no evidence. The High Court did not come to such a conclusion."

In Sir Chunilal Vs. Mehta and Sons Ltd. Vs. Century Spg. & Mfg. Co. Ltd. reported in AIR 1962 SC 1314 the Supreme Court pointed out that the substantial question of law has to be distinguished from a substantial question of fact and it observed as follows:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

Examining the matter in the light of the principles enunciated by the Supreme Court in the aforementioned cases, it cannot be said that the conclusion drawn by the lower appellate court was erroneous being contrary to the mandatory provisions of law or was based upon inadmissible evidence or arrived at without evidence. In a case where from a given set of circumstances two inferences are possible, the one drawn by the lower appellate court is binding upon the High Court in the Second Appeal as clearly held by the Supreme Court in the case of Kondiba Dagadu Kadam (supra). A bare perusal of the plaint does indicate that the plaintiffs had clearly mentioned that the Will deed was procured by practicing fraud and misrepresentation. However, at some other place, it was also stated that the Will deed was never executed and it does not bear their signatures. As held by the Supreme Court in the case of Smt. Bismillah (supra) the pleadings have to be read as a whole and the real point is not the stray or loose expressions but the real substance of the case by construing the pleadings as a whole. The Ist appellate court has construed the pleadings as a whole and I see no reason to take a different view. Thus the findings recorded by the courts below that the document in question was a voidable document, does not require any interference by this Court and in such eventuality, the cancellation of the voidable document could only have been sought from the civil court and not from the consolidation authorities.

There is, therefore, no merit in this Second Appeal. It is, accordingly, dismissed. There shall be no order as to costs. The interim order, if any, stands vacated.

Dt/- 6.5.2005

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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