Chattisgarh High Court
Santosh Kumar vs Prem Kumar on 16 December, 2024
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2024:CGHC:50595
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 392 of 2024
1. Santosh Kumar S/o Late Philip, Aged About 82 Years R/o
Village Giraang, Tahsil And District- Jashpur (C.G.) Present
Address-Jurgum, Tahsil And District- Jashpur (CG)
2. Ajay Kumar S/o Late Philip, Adopted Son Of Late Alber, Aged
About 45 Years R/o Village- Giraang, Tahsil And District-
Jashpur (C.G.)
... Appellants
versus
1. Prem Kumar S/o Fauda, Aged About 61 Years R/o Village-
Pidi, Tahsil And District- Jashpur (C.G.) Present Address-
Giraang, Tahsil And District- Jashpur (C.G.)
2. State Of Chhattisgarh, Through The Collector, District Jashpur
(C.G.)
... Respondents
For Appellants : Mr. B.P. Sharma, Mr. Sameer Oraon and Mr. M.L. Saket, Advocates For Respondent-State : Mr. Rajeev Bharat, Govt. Advocate SB:Hon'ble Mr. Justice Parth Prateem Sahu Judgement on Board 16.12.2024
1. Heard on admission.
2. Defendants No.1 and 2 / Appellants have preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity "CPC") against the judgment & 2 decree dated 23.7.2024 passed by the learned District Judge, Jashpur (CG) in Civil Appeal No.8A/2023 thereby affirming the judgment and decree dated 1.12.2022 passed in Civil Suit No.34A/2006 by which learned 1st Civil Judge Class-I Jashpur has decreed the suit of plaintiff/respondent No.1 herein.
3. Facts of the case, in nutshell, are that plaintiff filed a civil suit against the defendants for declaration of title, possession and injunction in respect of land of different khasra numbers, as described in Schedule-A to plaint, total area 4.357 hectare, situated in village Giraang, PH No.27, Jashpur, District Jashpur (CG), which will be referred hereinafter as 'the suit land'. It was pleaded in the plaint that plaintiff's maternal uncle namely Alber was the owner of the suit property and he had no issue. Plaintiff lived with him and taken care of him in his old age. Alber was very happy with the services of plaintiff rendered to him and therefore, out of love and affection, Alber had executed Will deed dated 20.3.1990 in favour of plaintiff. Alber passed away on 16.1.1993. After the death of Alber, on the basis Will Deed, plaintiff submitted an application for mutating his name in land records. After necessary inquiry including recording of evidence, the Tahsildar passed an order of mutation on 20.2.1993 in favour of plaintiff and accordingly, the suit land came to be mutated in the name of plaintiff and since then he is in peaceful possession of the suit 3 land. It was further pleaded that based on an adoption deed, defendants No.1 and 2 challenged the order of mutation dated 20.2.1993 before the Sub-Divisional Officer, Jashpur, which came to be allowed vide order dated 28.8.1995 and the matter was remitted back to the Tahsildar to inquire about validity of the will deed and adoption deed both. After remand, the Tahsildar did not issue any notice to the plaintiff, therefore, the plaintiff could not putforth his defence before the Tahsildar. On 5.3.1997 plaintiff came to know that his name has been deleted from record of rights and name of deceased Alber has again been restored in records.
4. Defendant No.1 and 2 filed written statement denying the averments made in the plaint. It was pleaded that plaintiff is not the resident of village Giraang, rather he is resident of village Peedhi. Late Alber had no son, therefore, he has kept defendant No.2, younger son of defendant No.1, brother of Late Alber, as his adopted son. When Late Alber became age old, defendant No.2 was carrying out agriculture activities over the suit land with the help of his natural father. Plaintiff being nephew of Late Alber sometimes come to meet Alber but never resided with him. He being quite old was unable to move, having weak eyesight and was hard of hearing. Plaintiff got registered will deed by impersonating Alber. On the death of Alber, his last rites were performed by defendant No.2. Late 4 Alber during his lifetime had not executed any Will in favour of anyone. It was further pleaded that defendant No.2 was taken in adoption as per custom prevailing in Oraon community and a deed of adoption was executed in presence of elderly members of village on 5.4.1985. The order passed by the revenue appellate Court in the appeal of defendants is in accordance with law. After remand of the case, the Tahsildar issued notice to plaintiff and defendants, however, the plaintiff did not appear before the Court, therefore, the matter was dismissed for want of prosecution. As per custom prevailing in Oraon community, a daughter or her son has no right over the property of her father and therefore, even if the Will is duly executed in his favour, then also he does not derive any title over the suit property. Suit property is in possession of the defendants. Plaintiff has undervalued the suit. Suit of plaintiff be dismissed.
5. Based upon the above pleadings, learned trial Court framed as many as three issues. Upon consideration of oral and documentary evidence, learned trial court decreed the suit holding that plaintiff has been able to prove that Will Deed (Ex.P-1) executed in favour of plaintiff by Late Alber has been executed voluntarily and in sound state of mind by Late Alber and that the order dated 20.2.1983 is passed in accordance with law.
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6. Aggrieved by the judgment and decree of learned trial Court, the defendants No.1 and 2 preferred an appeal before the learned District Judge, which came to be dismissed by the impugned judgment. In the impugned judgment, learned appellate Court while agreeing with the findings of learned trial Court, independently considered the aspect of right of Late Alber to execute Will Deed; due execution of Will Deed as well as adoption deed, and concurred with the findings of the trial Court. Learned first appellate Court also considered the grounds and pleadings of the defendants that defendant No.2 was adopted son of Late Alber, and upon appreciation of evidence recorded finding that defendants/appellants herein failed to prove the adoption.
7. Learned counsel for defendants No.1 & 2 /appellants herein would argue that since the parties to the proceeding belong to Oraon Community and are admittedly governed and guided by their own customary law including in the matter of inheritance and succession, the trial court as well as appellate court has committed serious error in failing to appreciate the legitimate ground taken by defendants No.1 & 2 /appellants herein, which was based on the customary laws available to them and duly proved by examining witnesses of community. He submits that it is specific stand of defendants No.1 and 2 that as per custom prevailing in Oraon community, only a 6 male member of the family, that is to say of same gautra, has right to inherit the property and plaintiff/respondent No.1 herein not being the male member of the family of Late Alber i.e. of same gautra, has no right to inherit the property even on the basis of Will Deed stated to have been executed in his favour by Late Alber. To submit that plaintiff and defendants belong to different gautra and as per custom prevalent in Oraon's, the property cannot be willed-out in favour of a person belonging to other gautra, he referred to the statement of PW-3 Lawrence Trikey. He also referred to evidence of Vinay Ekka (DW-3), a research scholar who made research in custom prevailing in Oraon community and obtained Doctorate on his thesis on Oraons, and stated that there is no presumption of Will in Oraon custom; a custom is prevailing in Oraon community since the time immemorial that females have no right of inheritance under customary law, only sons have, and the property of a deceased died issueless can be inherited only by a male member of the family of deceased. He submits that the plaintiff utterly failed to prove the custom in Oraon's regarding transfer of property through Will or rebut the stand of defendants that there is no such custom. As per settled position in law, non-cross examination of a witness on a particular fact amounts to an admission on the part of the contesting party. Therefore, in absence of any cross- 7 examination of witnesses examined on behalf of defendants qua the material facts deposed by them that there is no custom prevailing in Oraon community regarding transfer of property through Will Deed, is more than sufficient to establish plea of the defendants that the plaintiff did not derive any right and title over disputed property based on the Will allegedly executed in his favour by Late Alaber as said Will Deed is void ab initio. However, both the Courts overlooking the categorical statement of witness of plaintiff, have recorded that plaintiff has been able to prove due execution of the Will Deed by Late Alber in favour of plaintiff.
8. He next contended that defendants/appellants herein have handed over the adoption deed to the counsel representing them before the trial Court and even defendant No.2 in his cross-examination has categorically stated that Alber has executed adoption deed in his favour on 5th April 1985, which he has filed in the matter. However, for the reasons best known to the advocate of defendants, it was not produced and exhibited before the Court. He submits that defendants/ appellants belong to scheduled tribe community and reside in remote backward area of the State, ignorant about the technicalities and niceties of law, therefore, they should not be made to suffer for negligence on the part of the lawyer. He contended that along with this second appeal, he has filed an 8 application under Order 41 Rule 27 read with Section151 of CPC seeking permission to adduce additional evidence i.e. adoption deed, on record, and for granting an opportunity to prove the same in accordance with law. He submits that from perusal of adoption deed it is appearing that Late Alber had adopted defendant No.1 as his son and declared that he will get his entire agriculture field after his death.
9. On the other hand, learned State Counsel supported the impugned judgment and decree passed by the trial court as well as appellate Court.
10. Heard learned counsel for the parties and perused the record as also judgments passed by the trial Court and first appellate Court.
11. Admittedly, the parties are 'Oraon' by caste and they are governed by their own customary laws. It is the case of the plaintiff that he has inherited the property of Late Alber through Will Deed executed in his favour by Late Alber. Whereas, claim of the defendants is that the custom prevailing in their community excludes from inheriting property on the basis of Will. Hence, the burden to prove such custom would lie on the defendants.
12. It is fundamental that custom or usage outweighs the written texts of law. So if there is a concrete proof of a particular custom prevailing in a community then that will prevail and the 9 devolution of the property has to be done accordingly. In case of Saraswathi Ammal v. Jagadambal and another, reported in AIR 1953 SC 201, wherein the Hon'ble Supreme Court has held that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and custom cannot be extended by analogy and it must be established inductively, not deductively.
13. In Bhimashya & ors vs. Smt. Janabi @ Janawwa, reported in (2006) 13 SCC 627, Hon'ble Supreme Court has held thus:
"15.A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm......it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect."
14. In case of Rathnamma and others vs. Sujathamma and others, reported in (2019) 19 SCC 714, Hon'ble Supreme has considered the nature and extent of proof required for establishing a custom and held as under:
"16. This Court in a judgment reported as Salekh Chand v. Satya Gupta3 while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under: (SCC pp. 330-31, paras 21-24) 10 "21. In Mookka Kone v. Ammakutti Ammal4,it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu Law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom.
22. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well-established law that custom cannot be enlarged by parity of reasoning.
23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold 11 the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case.
24. Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case PW 1 did not speak anything on the position either of a local custom or of a custom or usage by the community; PW 2, Murari Lal claimed to be witness of the ceremony of adoption, he was brother-in-law of Jagannath, son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the court. He did not speak a word either with regard to the local custom or the custom of the community. PW 3 as observed by the lower appellate court was only 43 years old at the time of his deposition whereas the 12 adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by PW 2 Murari Lal. He himself did not speak of such a custom. The evidence of the plaintiff was thus insufficient to prove the usage or custom prevalent either in the township of Hapur and around it or in the community of Vaish."
15. In the matter of Ratanlal @ Babulal Chunilal Samuska v. Sunderabai Govardhandas Samsuka, reported in AIR 2017 SC 5797, Hon'ble Supreme Court explained the ingredients for establishing a valid custom and held as under:
"13. As per the settled law under Section 2 (a) the Act, the following ingredients are necessary for establishing a valid custom a. Continuity. b. Certainty. c. Long usage. d. and reasonability. As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the 13 alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant."
16. In the case at hand, defendants in support of their case, examined Norbert Xalxo as DW-1; defendant No.2-Ajay Kumar as DW-2 and Vinay Ekka as DW-3.
17. Perusal of statement of Norbert (DW-1) would reveal that he has stated that Alber was issueless, he adopted his brother's son i.e. defendant No.2 in his childhood, and since thereafter he resided with him. Alber spent his last days with his adopted son and on death of Alber, his adopted son performed his last rites. Prem Kumar is nephew of Late Alber, he never resided with Prem Kumar. Prem Kumar used to visit vilalge. Alber was weak in walking and hearing, he had never gone to Jashpur to execute any Will Deed and he had not executed Will in favour of any person. There is custom in Oraon community that property of a family remains in the family and daughter or sister has no right over it. Prem Kumar being member of other family has no right over the land of Alber. During lifetime of Alber and after his death, defendants are cultivating the disputed land. Prem Kumar has never been in possession, he got executed Will in his favour by impersonating Alber.
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18. Ajay (DW-2), defendant No.2, has stated in his statement that he was taken in adoption by Alber and an adoption deed in this regard is reduced into writing on 5.4.1985 in presence of elderly members of the village. He has also stated about the custom that excludes the female from inheritance and plaintiff not being member of family of Alber, cannot inherit property of Alber even if a Will is executed in his favour.
19. Defendants/appellants herein have heavily relied upon the evidence of DW-3 Vinay Ekka, with respect to custom of transfer of property by way of Will prevailing in Oraon community. Statement of DW-3 reveals that he was actively engaged as research scholar to know about the social customs. He himself belong to Oraon community. After detailed enquiry from the elder members of the area, he came to know that in Oraon community the daughters do not have any right in the property of their father and only sons inherit property. There is no custom prevailing in Oraon's since time immemorial regarding transfer of property through Will Deed. In the cross-examination this witness has admitted that he has not been issued any certificate of expertise with regard to customs prevailing in Oraon tribes. This witness has also admitted that he has not produced any document regarding thesis work done by him regarding the traits and customs followed by members of Oraon community. This witness has 15 also admitted that his father had adopted Christian religion and he follow the christian religion.
20. From the evidence led on behalf of defendants, it is clear that DW-1 and DW-3 have stated about the custom prevailing in Oraon community which prohibits execution of Will Deed, however, they have not mentioned any of instances where the transfer of property was made through Will Deed and it was invalidated at the instance of another on the ground of custom prevalent in the community. It is hardly possible to suppose that even one instance of execution of Will Deed of the property would be possible if the community concerned did exclude inheritance of property on the basis of Will Deed. It is true that in proving a custom it was not necessary to adduce proof of actual instances of custom taking effect, the opinion of responsible members as to the existence of such a custom and grounds of their opinion, though generally in the nature of family tradition, are clearly admissible. However, in case at hand, the defendants have not examined any elderly responsible member of the community who is well aware of the customs prevailing in Oraons', to narrate and prove the custom, as pleaded by defendants.
21. Norbert (DW-1) has not stated anything about transfer by land owner through Will is prohibited under the customs and usage. DW-3 in Para-15 of his cross-examination has 16 admitted that he has not produced any document to prove that he is registered as scholar, he has not pleaded in his affidavit that his guide for Ph.D. was Mr. Vijay Rakshit, Principal of NEC College, Jashpur, but stated that he was his guide. He has not completed Ph.D. and his research was not certified by the State Government or the University. He is follower of Christianity, his father adopted Christianity about 60-70 years ago. In Para-18 and 20 he shown his unawareness of the question of religious customs of the Oraon community. In Para-19 he has shown his unawareness as to which song is sung at the time of Karam Puja. In Para- 22 he admitted that land can be transferred through registered sale deed. He had refused to answer specific question that 'in Oraon community adoption is by registered adoption deed'. He also stated in Para-24 that he has not produced any certified document of research on Will right. Hence, the testimony of witnesses examined by defendants was not sufficient to prove the custom and being so, the Courts have rightly refused to place reliance upon their statement to conclude the existence of custom, as pleaded by defendants. Even during the course of arguments, learned counsel for appellants has not cited any judgment to show the existence of custom which denies transfer of property in Oraon community through Will deed.
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22. Both the Courts have held that burden to prove the customary law was upon the defendants and they failed to establish any such custom which excludes from transfer of property on the basis of Will Deed. In light of above principle of law laid down by Hon'ble Supreme Court and looking to quality of evidence brought on record by defendants to establish the custom as pleaded, I do not find any perversity or illegality in the findings recorded by both the Courts.
23. Admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage, or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial Cause. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
24. In instant case, by way of application under Order 41 Rule 27 read with Section 151 CPC, appellants want to bring on record adoption deed stated to be executed by Late Albel in favour of appellant No.2 herein in respect of his property. It is 18 the case of defendants No.1 and 2 / appellants herein that as per custom prevailing in their community, property of a person who died issueless would automatically devolve upon male descendant of the family. If that be so, there was no necessity to execute adoption deed in favour of defendant No.2/ appellant No.2 because the property of Late Albel, who died issueless, would automatically devolve upon the male descendant in the family. The custom of adoption, procedure under custom is not proved by admissible piece of evidence. Even if execution of document is at all there then what was the custom and usage for adoption in Oraon community is not proved by defendants.
25. Furthermore, the execution of Will Deed in favour of plaintiff by Late Albel and its attestation in accordance with law has been found to be duly proved by the Courts. Attesting witnesses of Will namely Sudhir (PW-2) and Lawrence (PW-
3) have categorically stated that the contents of Will Deed dated 20.3.1990 (Ex.P-1) were read over and explained to Late Alber in their presence. Alber had put his thumb impression on the Will after admitting its contents to be correct in their presence and thereafter they have signed the Will. He had also appeared before the Sub Registrar at the time of the registration of Will. They have also deposed that at the time of execution of Will, Alber was in sound disposing 19 mind. Perusal of Will Deed reveals that the Sub-Registrar endorsed at the overleaf of Will that Will has been produced in the office on 20.3.1990 for registration and executant Alber and attesting witnesses have signed in his presence. Thus, it is apparent that the executant admits the execution of Will, put his thumb impression before the Sub-Registrar, who affixes his signature endorsing the signature of the executant stating that the executant has admitted execution and certifies the document. Endorsement on the Will by the Sub-Registrar that its execution was admitted by the executant, is made in discharge of his official duty and therefore, it has to be presumed that he would not make such an endorsement unless the execution was admitted before him by the executant. Further, the endorsement by the registering officer on the document is admissible to prove that the executant was of sound mind. Considering all the aforementioned aspects, in the opinion of this Court, the trial Court as also first appellate Court has rightly held that due execution of Will Ex.P-1 in favour of plaintiff through the attesting witnesses PW-2 and PW-3 stands proved beyond a speck of doubt and the defendants has not proved by admissible and clinching evidence the custom and usage which prohibits execution of Will.
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26. One of the reasons assigned for filing application under Order 41 Rule 27 r/w Section 151 of CPC is that appellants have handed over the documents to their counsel, however, he inadvertently has not placed in record of trial Court. If for some reason or other, even after pleadings and evidence brought on record, the document could not be placed before the trial Court, it is surprising that it was not placed before the first appellate Court also. Hon'ble Supreme Court in case of Union of India vs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148, while considering admissibility of additional evidence at the appellate stage has observed thus:-
"40.The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons."
Hon'ble Supreme Court has further observed that admissibility of evidence under Order 41 Rule 27 CPC is an exception and the appellate Court may take additional 21 evidence in exceptional circumstances. It was observed thus:-
"36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy 34, Municipal Corpn. Of Greater Bombay v. Lala Pancham35, Soonda Ram v. Rameshwarlal36 and Syed Abdul Khader vs. Rama Reddy37)
37.The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji 22 Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.7)
38. Under Order XLI Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide Lala Pancham35).
41.The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment."
27. In case of Sanjay Kumar Singh v State of Jharkhand, reported in (2022) 7 SCC 247, Hon'ble Supreme Court has observed thus:-
"8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the 23 application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed herein above, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court."
28. In view of above, the adoption deed, which is sought to be brought on record at the second appellate stage, cannot be held to be relevant and material for decision on the point in issue between the parties because the custom prevailing in Oraon community of adoption of a child has not been proved by the defendants by producing evidence, as discussed in preceding paragraph. In absence of proof of custom mere execution of a document in this regard will not be important and substantial evidence without there being the Court cannot pass a satisfactory judgment. Hence, this Court does not find any good ground to allow the application filed on behalf of 24 appellants under Order 41 Rule 27 read with Section 151 of CPC.
29. The Coordinate Bench of this Court in S.A. No.270/2003, Daduram & ors vs. Bhuribai (Died & Deleted) & ors, has observed thus:-
"20. In the matter of Chuiyya s/o Jhadi and another v. Mangari Bai and another5, the M.P. High Court while dealing with the issue of inheritance of property of father by daughter belonging to "Oraon tribe" held as under:
"It is true that the provisions of Hindu Succession Act, 1956 do not apply to the members of the Scheduled Tribe as per section 2(2) of this Act. It is also true that parties are Scheduled Tribes. In the absence of son the daughter was entitled to inheritance and she used to get "limited Estate"
and on her death it used to pass on to the reversioners of her father. That rule has been abrogated. Section 14 of the Hindu Succession Act, 1956 confers full heritable capacity on a female heir. There is no definite evidence that amongst the Oraons a daughter is excluded from inheriting the property of her father. There should be no disparity in the rights of man and woman in matters of succession and inheritance. This is recognized in all the systems. It is for the person setting up the plea of exclusion of daughter from inheritance to prove and establish that there is such a caste custom. A custom is a rule which has by long usage obtained the force of law. It must be ancient, certain and reasonable. The 25 daughter is entitled to the share in the lands in dispute."
21. Similarly, in the matter of Sukhmani and others v. Jagarnath, the M.P. High Court applying the principles of equity, justice and good conscience, finding no provision of law governing right to succession among Gond-caste held as under: -
"10. The trial Court had rightly held that the daughters are entitled to a share in the property of father in the Gond community and they along with Sonamati and the respondent succeeded to the property of Jatu. After the death of Sonamati half share of Sonamati was also transmitted to the appellants as there was no prohibition in law to succeed the property of their step-mother. In fact, sections 5 and 6 of the Central Provinces Law read together would show that in absence of any law governing the right to succession, the principles of equity, justice and good conscience shall apply.
11. For all these reasons, this Court comes to the conclusion that the appellants and the respondent are entitled to 1/6th share each in the suit property."
22. This Court also in the matter of Mst. Sarwango and others v. Mst. Urchamahin and others7, applying Section 6 of the Central Provinces Laws Act, 1875, held that in absence of any law of inheritance or custom prevailing in Gond-caste, Courts are required to decide right according to justice, equity and good conscience and allotted ½ share to daughters on the property left by their father. It was observed as under: -
"10. In the present case, both the parties have failed to prove any law of inheritance or custom prevailing in their Gond caste i.e. member of Scheduled Caste whom Hindu Law or other law governing inheritance is not applicable. In absence of any law of inheritance or custom 26 prevailing in their caste governing the inheritance the Courts are required to decide the rights according to justice, equity and good conscience in term of Section 6 of the Act. Plaintiffs Sawango and Jaituniya are daughters of Jhangal, nearest relative rather the respondents, who were daughter-in-law of brother of Jhangal and legitimate or illegitimate son of Balam Singh, son of Dakhal."
30. Jashpur and Raigarh are adjacent districts. Defendants/ appellants failed to prove the custom of adoption and also the custom prohibiting daughters to succeed property of father or mother.
31. Perusal of judgment and decree passed by the learned trial Court would show that learned trial Court has not framed issue on custom, however, the parties were well aware of their case, pleadings and have also entered in witness box knowing well the question and issue involved and led evidence before trial Court. Appellant led evidence on the custom. In case of Nedunuri Kameswaramma v. Sampati Subba Rao, reported in AIR 1963 SC 884 the Hon'ble Supreme Court has observed thus:
"..... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates 27 proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. ..."
In case of Beereddy Dasaratharami Reddy v. V. Manjunath reported in (2021) 19 SCC 263, the Hon'ble Supreme Court observed as under:-
"12. Omission to frame an issue as required under Order 14 Rule 1 of the Civil Procedure Code, 1908 does not vitiate the trial where the parties go to trial fully knowing the rival case and lead evidence in support of their respective contentions and to refute contentions of the other side (see Kannan v. V.S. Pandurangam [Kannan v. V.S. Pandurangam5 and Nedunuri Kameswaramma v. Sampati Subba Rao6."
In case of Nirmala Devi v. Gurgaon Scheduled Caste & Vimukta Agriculture Thrift & Credit Society Ltd., reported in (2021) 18 SCC 785, it was observed thus:-
"6.In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao5 , wherein it has been held that "where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings." We have referred to this judgment solely for the purpose of the counterclaim. As we 28 have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim.
The counterclaim was not, in that way, an
independent claim."
32. In second appeal the High Court can interfere with the judgment and decree passed by the subordinate Courts only on a question of law much less substantial question of law.
The findings of fact recorded by the Courts below are not liable to be interfered with unless the same are perverse. In the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, reported in (1999) 3 SCC 722, the Hon'ble Supreme Court has held as under:
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 29 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.
33.In the matter of Vishwanath Agrawal S/o Sitaram Agrawal v. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 Hon'ble Supreme Court has held that the concurrent findings recorded by Courts below cannot be disturbed until and unless they are perverse or contrary to law. Relevant portion of the said judicial pronouncement reads as under:-
"37.... High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure."
34.In case of Adiveppa & ors vs. Bhimappa & ors, reported (2017) 9 SCC 586 the Hon'ble Supreme Court has observed and held as under:
30
"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.
18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."
35. In view of the discussions made herein above, if the pleadings of the parties, evidence adduced by the parties and the impugned judgments passed by the trial Court as also first appellate Court are considered in light of the above legal principles/ legal provisions reiterated in preceding paragraphs of this judgment, then, in the considered opinion of this Court, the findings of facts concurrently recorded by both the Courts are not liable to be interfered with in the instant case and it cannot be said that the trial Court or appellate Court has ignored any material evidence or has acted on no evidence or Courts have drawn wrong inferences from the proved facts 31 etc. Concurrent findings recorded by both the Courts in favour of plaintiff/respondent No.1 are fully justified by the evidence on record and not based on misreading or misappreciation of evidence or contrary to any law, requiring interference in second appeal. The learned Courts have legally and rightly dealt with the issues involved in the matter and have recorded correct findings of facts.
36. Resultantly, this Court is of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of CPC for adjudication. Second appeal being sans merit is hereby dismissed at the admission stage. Decree be drawn up SYED accordingly.
ROSHAN
ZAMIR ALI Sd/-
Digitally
signed by
(Parth Prateem Sahu)
SYED ROSHAN
ZAMIR ALI Judge
roshan/-