Gujarat High Court
Harshadbhai Ratilal Bhatt vs Bhatt Navinchandra Bhailal on 4 April, 2024
NEUTRAL CITATION
C/SA/309/2023 JUDGMENT DATED: 04/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 309 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 309 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARSHADBHAI RATILAL BHATT
Versus
BHATT NAVINCHANDRA BHAILAL & ANR.
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Appearance:
MR VIRAL V DAVE(3846) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/04/2024
ORAL JUDGMENT
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1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, `908 ("CPC" for short). Being aggrieved and dissatisfied with the Judgment and order dated 22-07-2022 passed below Exh.22 in Regular Civil Appeal No.104 of 2015, whereby the Appeal was dismissed, confirming the Judgment and decree dated 21-08-2015 passed in Regular Civil Suit No.145 of 2012, whereby the suit of the plaintiff was dismissed, raising the following substantial questions of law.
"1. Whether the courts below committed an error in dismissing the suit without examining the fact of the Agreement produced by the plaintiff.
2. Whether the Courts below committed an error by failing to frame issue and decide in favour of the original plaintiff that the onus of proving the existence of Agreement liesupon the defendant?"
2. The parties are referred to at their original status for the sake of convenience in this second appeal.
3. The brief facts leading to filing of this second appeal as stated in the impugned judgment, are as under: Page 2 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024
NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined 3.1 It is the case of the plaintiff that the property bearing Block Nos. 36, 38(A) and 38 (B) which includes Khata No.184 admeasuring about 0-30-35, 0-40-44 and 0-05-60 Hectare Prati Are respectively to considered as suit property.
It is further the case of the plaintiff that the said properties are situated in the revenue estated of village Samlod, Taluka and District : Bharuch and are in the possession of plaintiff for more than 30 years and plaintiffs are residing at Samlod, Taluka & District Bharuch and by cultivating the said properties plaintiffs are earning their livelihood. It is further the case of the plaintiff that defendants are family members and nephews of plaintiff in support of the same, plaintiff has produced pedigree and has further averred that the grand father of the plaintiff and defendant i.e., deceased Ambalal Mahashankar Bhatt was having agricultural land in village Chorbhuj Taluka Karjan, District Vadodara and at Village Samlod Taluka & District : Bharuch. Further it is the case of the plaintiff that the legal heirs of deceased Ambalal Mahashankar Bhatt were the parties in the suit and Shri Ramanbhai Ambalal Bhatt had left for heavenly abode without any issue as he was unmarried. It is further contended that on dated 22/05/1980 a contract had been entered into the between the parties in presence of plaintiff's father and it was agreed by them that in the property Page 3 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined situated at village Chorbhuj plaintiff's father has withdrawn its right in favour of defendants, same way property situated in Village Samlod which was in the joint names of plaintiffs and defendants in which, defendant has to withdraw the right in favour of plaintiff for which, whenever necessity arise defendants were to do favor to plaintiff and the remaining property of Shri Ramanbhai Ambalal Bhatt was to be divided equally. Furthermore, it is the case of the plaintiff that as per the contract dated 22/05/1980, in the property situated at village Chorbhuj Taluka Karjan defendants have executed documents, on the basis of which, the said properties become in the names of defendants. It is the alleged by the plaintiff that defendants should have withdrawn their right in favour of plaintiff in the properties situated at village Samlod, but they did not followed the same, as the plaintiff since the year 1980 or prior to it, they were cultivating the said land and was in its possession. It is further mention by the plaintiff that in revenue records and in form No.7x12 the names of defendants are mutated but as per the contract dated 22/05/1980 the names of the defendants would have been deleted but defendants are not done so, therefore, it is alleged by the plaintiff that on the sole basis of revenue records defendants are trying to sale away the suit property, therefore, to restrict the defendants by selling away the suit property as well as restrain the defendants in creating Page 4 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined hindrance to the plaintiffs in its peaceful possession, cause of action arose for the plaintiff to file the present suit. It is further contended that defendant No.1 is staying at Chorbhuj and defendant No.2 is staying at Vadodara hence both defendants were never stayed at Village Samlod. It has been further contended that on the basis of document dated 22/05/1980 willing fully the right had been waived in favour of plaintiff's father by the defendants and since last 30 years all the taxes are paid by the plaintiffs and are in possession and cultivating the same and hence defendants have no right, title or interest in the property and have no right to disturb the peaceful possession of the plaintiff. It had been further averred that when the plaintiff came to know that on the basis of names in revenue records, defendants are trying to sell away as well as trying to transfer the property illegally the suit is filed for declaration, correction in revenue record and to declare that possession of the plaintiff over the suit property and accordingly prayed to grant relief before the Learned Trial Court.
4. Heard the learned advocate for the plaintiff- appellant. He has submitted that the learned lower Courts have failed to appreciate that the respondents have withdrawn their rights on concerned lands, by executing an agreement dated 22-05-1980 in favour of the father of the Page 5 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined appellant; that the appellant is in possession of the concerned land for the last 30 years and doing agricultural work and thus, has become the owner of these lands; that the respondents are not residing at Samlod, and not doing agricultural work, and therefore, they have no right to sell or transfer his lands; that the respondents were trying to sell or transfer these concerned lands only on the basis of the revenue records. On the basis of these submissions, learned advocate for the appellant has submitted that both the Courts below have failed to appreciate the facts and the evidence on record, and have erred in passing the impugned orders, which are required to be interfered with, quashed and set aside in the present appeal.
4.1 I have heard the learned advocate for the appellant and perused the material placed on record including the judgments of the learned lower courts below. 4.2 Basically, the dispute revolves around the alleged deed of family arrangement executed amongst the parties dated 12.5.1980. It transpires that the alleged deed of family arrangement is executed on simple piece of paper. Moreover, pursuant to the said family arrangement dated 12.5.1980, a further understanding is arrived at between the parties that the parties will remain present for the execution of the Page 6 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined necessary entry in the revenue record. That happens in the year 1980 thereafter it seems that the present Regular Civil Suit is filed before the learned civil court, Bharuch in the year 2012 for declaration regarding the right in the property and also permanent injunction.
4.3 Now, in this backdrop it is necessary to discuss relevant aspects involved in the matter. The learned trial court has discussed every document in detail and also discussed ocular i.e. oral evidence of the parties in detail and thereafter, given the finding on each issue. 4.4 The material aspects regarding the position of law in context of the facts of the present case is discussed by the learned trial court and this Court finds it proper to reproduce the same verbatim, which is as follows:
"(A) Settled Legal Position Regarding Jointness of Hindu Family Property :-
(a) Now Hon'ble Supreme Court had held that "The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the co-parceners did separate himself from the other members of the joint Page 7 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the co-parceners continued to be joint. There is no presumption that the rest of the co-parceners continued to be joint. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. Whether there is a partition in a Hindu joint family is, therefore, a question of fact notwithstanding the fact one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. The finding is one of the fact. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severally.
(b) The main question of law that arose was whether a member of a joint Hindu family becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the Page 8 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined same to the knowledge of the other member of the family. In this context a reference to Hindu law texts would be appropriate, for they are the sources from which courts evolved the doctrine by a pragmatic approach to the problems that arose from time to time.
The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) the communication of it to others affected thereby.*- (13) Concept of Oral Partition :-
(a) Now concept of oral partition is not new and is very well accepted in Hindu law hence their can be oral partition. Now as per law "The process of partition, therefore, involves the transfer of joint enjoyment of the properties by all the co-parceners into an enjoyment in severalty by them of the respective properties allotted to their shares".
(b) Now here in this case it appears that enjoyment is in severally by the parties of respective properties as admitted.
(c) Now, as per law and as discussed above yet at the cost of repetition it is hereby again repeated that it is not necessary that partition has to be effected by metes and bounds yet the meaning of metes and bounds are not truly understood and as meaning of metes and bounds does not mean that person shall be put in Page 9 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the co-sharer on partition may not get any share in immovable property.
No hard and fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members to whom it is required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another."
(c) Hence as discussed it appears that partition had been affected and each party is in separate possession because as per law an agreement to separate is not required by Page 10 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined law to be in writing. Yet in present case there appears such documents. Now with settled legal position as discussed above regarding partition on perusal of the pleading and burden casted on plaintiff to prove all the issues and for that plaintiff had averred the same and had adduced oral evidence in support of pleading which would naturally be so, but looking to the settled legal position of law the same is not completely helping the plaintiff so as to grant decree in his favour in toto.
(d) In one case Honble High Court had held that "the Lower court has relied on the presumption that every Hindu Family is presumed to be joint in the absence of the division and held that the lower court has simply relied on this broad presumption without considering what is meant by division" but It is now well settled position that severance of joint status takes place by mere indications of intention. Mere indication to separate and enjoy his share in severally may amount to partition. The partition is question of individual volition. It is not necessary to divide by metes and bounds. It is not even necessary to say orally if it is acted upon mere declaration of his intention to sever need not necessarily be by word of mouth. It can equally be inferred from conduct. A clear declaration of the share of both members, followed by a division of all the properties, is, sufficient to establish the test of the disruption of the family completely now the position of law is that a Page 11 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined Hindu partition is not required to be in writing. It can be oral and where partition is not in writing or if in writing but does not declare on the face of it, subsequent conduct is to be seen, now we have ample evidence on record in the form of admission of severance of status and possession between the parties. Further"once is the partition of the inheritance made, once is a damsul given in a marriage and once does a man say "I give" these three are by good men done once for all and irrevocably." If it is held that partition or severance of joint status has already taken place then no such suit for partition lies. Here at the cost of repetition it is pertinent to note that it is settled legal position is that the plaintiff is bound to prove his own case and he cannot get the benefit from the loop-holes in the case of the defendants. Thus, once a particular plea is not believed by the Court, now simply because partition is pleaded in a particular way or on particular shares or on particular basis and not proving that method does not mean that no partition has taken place at all. If custom pleaded is not proved, it may be held that the partition was not as per that custom but the factum of partition does not go away and shares obtained do not become non-existence. Now we have to see whether partition has taken place or not and for this, there is abundant proof and there being partition as alleged by the defendants and this fact is supported by number of circumstances which show that Page 12 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined there was partition and that the partition was acted upon since long. The above narrated circumstances go to prove the factum of partition.
(e) The severance of joint status is a matter of individual volition. It may be affected by agreement. Where possession of different portion of joint family property by different coparceners has been either a formal partition by metes and bounds or tactic agreement to separate, hence it is justified in assuming that partition has been effected in one way or the other, all though. Owing to lapse of time, it is impossible to prove by definite evidence how and when it happened. And the onus of proving that the properties joint lies on the co parceners who alleges it There is no presumption that Hindu family merely because it is joint, possesses any joint properties. The burden of proving that any particular property is joint family property is therefore in the first instance upon the person who claims it is co-parcenery property. But if the possession of a nucleus of the joint family property is either admitted or prove, any acquisition made by a member of the joint family is presumed to be a joint family property.
In the case of Brijraj Singh, it has been clearly laid down if unequal shares have been allotted in partition if the same is acted upon the partition is not invalid but the same is a valid one. This privy Council's Page 13 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined case applied squarely applied to the present case and though the share allotted to the parties are held to be unequal there is a valid partition as the same is acted upon.
(f) Where the ancestral and joint family properties are partitioned between the defendant and the plaintiffs who formed the joint family, by the severance of the status the plaintiffs and the defendants become tenants in common of the property held by them. Where even after the partition the defendant continues to remain in possession of the entire properties of the family, these is no presumption that the property which is acquired by the Defendant after severance of the joint family status must, even if be no agreement in that behalf, be regarded as acquired for the family.
(14) The settled legal position regarding the joint possession in the event of partition is as under:-
(a) Now for being in joint possession "The mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body and the possession of property by such corporate body. the first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose female members of the family may be left out of consideration and the conception of a Page 14 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz. the undivided state- it forms a corporate body" but here it is not so as it is admitted that their in no family unit and when their is no family unit no question of joint possession arise and here their are decedent in female too further Hon'ble Supreme Court held that there may be presumption that there is a Hindu Joint Family but there can be no presumption that the joint family possesses joint family properties" hence here in case on hand when joint Hindu family is not proved no question of joint possession arises further Hon'ble Supreme Court held that from the statement made in the plaint it can not be definitely held that the property was co-parceners property which could be represented by a Karta. in case before Honble Supreme Court it was alleged in the plaint that after the death of the father, all the three brothers became owners of the said joint Hindu family property as If it was a co parcenery property then the son would have been co-
parceners even before the death of the father and there was no necessity to wait till the death of the father to get ownership of the property. The averments in the plaint really mean that the disputed property was the undivided property of the said three joint owners who had inherited the father's interest after his death. now even it is assumed that it was co-parcenery property Page 15 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined there was nothing on record to indicate that any one member or the eldest male member of the family was acting as a karta of the joint family. On the contrary, it appears that all the co-owners filed the said suit for injunction, which on the face of it, only indicates that all of them intend to exercise their right as co-owners of the property and they had not authorized any one of them to represent the property as a Karta of the joint Hindu family property
15) Discussion Regarding Division in Status :-
(a) Now their is a technical word called "Division in status" which means There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds".
The burden lies upon the person who asserts that a particular property is joint family possessed. Hence the property is joint family and is in joint possession can not be presumed because as per law No presumption can be made that a joint family possesses joint property in law there is no presumption that a family because it is joint, Page 16 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined possesses joint property or any property. As It is settled principle of law as enunciated by the Apex Court on the principles laid down by the privy Council and also the different High Courts that by the go of the day when the members in the joint family are increasing day to day then the notion of jointness of the Hindu family becomes weak and disputation comes automatically by way of possession of their shares even if there is no partition by any deed or by partition as contemplated by metes and bounds. But such factum always remains to be seen from the circumstances of each case only because there is possession of the shares in the joint family separately, it should be construed that the property has been partitioned amongst the shares. But if such separate possession is found to be on the basis of definite shares then there is a presumption that the family has been disrupted.
(16) Discussion Regarding Division by Metes & Bounds :-
(a) Now it is settled law that an actual division of the properties by metes and bounds is not necessary, once it is shown that whether by and agreement between the parties or otherwise, the partition is complete after the shares are so defined the parties may divide the property by metes and bounds or they may continue to live Page 17 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined together and enjoy the property in common as before.
However, whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint and immediately the share is defined and henceforth the parties hold the property as tenants in common." and further Hon'ble Supreme Court held that "...... a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant in common irrespective of whether there is actual division of the properties reunion as understood in law. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition."
(b) Further as per law "partition is a severance of joint status, and as such, it is a matter of individual volition. all that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty the Hon'ble Supreme Court pointed out in the many cases, that there Page 18 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined should be an intimation indication or representation of such intention and that what from that manifestation should take would depend upon the circumstances of each case. It is implicit in this principle that this manifestation or declaration of intention should be to the knowledge of the persons affected." further a settled legal position of law is that "Once a member of a joint family has clearly and unequivocally intimated to the other members, his desire to sever himself from the joint family, his right to obtain and possess his share is unimpeachable, Whether or not they agree to a separation and there is an immediate severance of the joint status. The intention to separate may be evinced in different ways, either by explicit declaration or by conduct. a partition may even be effected orally." Question arise as to the date from which severance in status is deemed to have taken place. Is it the date of expression of intention by a co-parcener to sever himself from the joint family or the date when such intention is brought to the knowledge of the other coparceners? Obviously the answer would affect rights of the other parties" . Hence, as per the law "The true test of partition of property according to Hindu law is the intention of the members of the family to become separate owners. Intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the property in defined shares as Page 19 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined separate owners operates as a partition, although, there may have been no actual division of the property by metes and bounds as observed by the judicial committee in various cases . In the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although, the property itself has not been actually severed and divided.
(c) In such a case the interest of each member is divided though the property remains physically undivided. " here as per admitted properties actually is in different persons and as law require that "It is enough to constitute a partition that there should be a division of title--it is not necessary that there should be an actual division of the property." Separation and as it is question of fact had to be decided with due regard to cumulative effect of all facts and circumstance of case. Now, as per law "Hon'ble Supreme Court held that in a Hindu undivided family governed by the Mitakshara Law, no individual member of that family while it remains undivided can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. partition consists in defining the shares of the co-parceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the Page 20 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined shares are defined, whether by agreement between the parties or otherwise, partitions complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property as discussed above. And share are defined merely by having joint names in revenue record it can not be said that property is joint properties i.e. undivided because as per the Hon'ble Supreme Court held that in a suit for partition and determination of share and possession thereof, the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants and as per law "Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. Hence as per the law the question whether properties are undivided is matter of fact depending upon application of evidence.
(17) DISCUSSION REGARDING BURDEN OF PROOF :-
(A) Now as discussed above in all issues, plaintiff is not entitled to get all reliefs as prayed for as plaintiff had Page 21 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined not proved his case in toto and discharged the burden as per the law. now let us see what as per law, the expression "Burden of proof" means :- it means two different things," It sometimes means that a party is required to prove an allegation before judgment can be given in its favour; It also means that on a contested issue one of the two contending parties has to introduce evidence and the burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail and here in this case plaintiff had failed to discharge his burden for all reliefs claimed as settled Principle of Law regarding burden of proof is, "the party on whom the burden of proof lies must, in order to succeed, establish a prima facie case. He can not on failure to do so take advantage of the weakness of his adversary's case. He must succeed by the strength of his own right and the clearness of his own proof, here plaintiff failed to adduced sufficient evidence to prove his case.
(b) Now "what is called burden of proof" is to be seen, as the pleadings should not be confused with the burden of adducing evidence which is described as shifting. The burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case in his favour is casted on the person who, when he gives such evidence as will support a prima facie case, the onus shifts on to the other party to adduce rebutting evidence to meet Page 22 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined the case made out by the person.
(c) Burden of proving that the transaction on which the alleged claim is claimed is bona fide is heavily on person who alleges the same, when circumstances surrounding the transaction are suspicious.
(d) "The phrase, burden of proof has three meanings (1) "the persuasive burden", the burden of proof as a matter of law and pleading the burden of establishing a case whether their exist preponderance of evidence is sometimes which is Also referred to as the "legal burden"
and the term persuasive burden is more preferred as being more common in use and in any event being easier to understand. (2) The Evidential burden, "The burden of proof in the sense of adducing evidence" is known as "evidential burden". (3) The burden of establishing the "admissibility of evidence". it is observed that There are at least two distinct senses in which burden of proof is used and clarity over which sense is relevant at any given time is essential. The legal burden is the burden of proof which remains constant through out a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on the analysis of issue the legal burden will not change it is the burden of establishing Page 23 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined the facts and contentions which will support a party's case, if at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose the incidence of, this burden is usually clear from the pleadings, It usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however may shift from one party burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be was adduced by either side.
(d) The section in evidence act lays down a test for ascertaining on which side the burden of proof lies as the section makes it clear that the initial onus is on the plaintiff. If he discharges that onus and makes out a case which entitles him to relief, the onus shifts on to the defendant to prove those circumstances, if any, which would dis-entitled the plaintiff to the same but here in case on hand plaintiff had failed to discharge his initial burden regarding possession and Hence looking to the pleading and evidence adduced plaintiff had failed to proved and discharge his persuasive burden, evidential burden, Legal burden as to admissibility of evidence for all reliefs claimed. Hence as per above settled principal of law plaintiff had failed to discharge his burden to prove his pleadings and all reliefs claimed and had adduced evidence on the same.
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(e) It was held by Hon'ble High Court in one case that, "Where the Plaintiff failed to discharge their burden of proving their case, it can not be said that pleading is proved on the basis of the weakness of the defendant case. "
(f) Hence Plaintiff had failed to discharge the burden of proving the pleading and documents in toto as per law.
(g) Hence as discussed above The party on whom the burden of proof lies must, in order to succeed, establish a prima facie case. He can not on failure to do so, take advantage of the weakness of his adversary's case.
moreover plaintiff must succeed by strength of his on right and the clearness of his own proof and as per law the burden of proof is on the plaintiff who asserts a right and it may be having regard to the circumstances of each case, that the onus of proof may shift to the defendant. The plaintiff must establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his case. (18) DISCUSSION REGARDING LEGAL POSITION AS TO PERMANENT INJUNCTION :-
(a) Now settled legal position of law as to grant of permanent injunction " Now for it what is law has to be seen. Now for - this law had laid down the general principals which should guide the courts in considering the question of granting or refusing perpetual injunctions Page 25 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined in appropriate cases. The Principles contained in the law are not new. They have been well settled and recognized and applied by courts in India long before they came to be incorporated in the form of the present section. They contain in simple language, the rules of equity as formulated in England and introduced in Indian as rules based on principles of justice, equity and good conscience.
The right to an injunction depends in India upon statute and is governed by the provisions of the Specific Relief Act Sec.38 prescribes the conditions when perpetual injunction can be granted by the Court. It Lays down the conditions under which the defendants may be permanently injuncted from invading, or threatening to invade the plaintiffs' right to or enjoyment of the property. The law has detailed the four categories of cases specified in sub-clauses (a) to (d) of sub-section (3) of Section 38.
(b) The present Sections 38 to 41 deal with various aspects of injunctions. They have to be read, construed and interpreted together, each provision supplementing the other; The section defines the circumstances under which perpetual injunctions may be granted, and new Sec. 41 details the circumstances when the injunction must not, be granted. Existence of legal right which is either threatened to be violated or is actually violated, and the existence of a legal right in favour in favour of one person contemplates the existence of the Page 26 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined corresponding legal duty in relation to the legal right in the other wrongful act as discussed above.
(c) Now it is settled principle that Injunction will not be granted as a matter of course" the Court has to consider in each case on merits and not merely whether the plaintiff's legal right has been infringed but also whether under all the circumstance of the case he ought to be granted an injunction as the proper and appropriate remedy for such infringement and here as discussed above legal right of plaintiff has not been infringed as it is plea that defendant is harassing and trying to dispossess the plaintiff by claiming ownership and possession but looking to the findings and issues discussed above the relief of injunction cannot be granted to the plaintiff.
(d) Under Section 38 of the Specific Relief Act, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Now When here defendant is invading or is threatening to invade the plaintiff's right to, or enjoyment of property is not proved hence grant of a perpetual injunction in this case is not justifiable as discussed above hence plaintiff's right is not invaded.
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NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined
(e) As per the law in order to obtain a perpetual injunction the plaintiff must establish that there is a breach of obligation or infringement of legal right and that there is likelihood of the wrongful act being repeated and there is nothing to prevent him from getting such a relief. When the plaintiff files a suit to restrain the violation of a right and the defendant denies the said right, and the plaintiff must establish his right to get the injunction in his favour, here as discussed in above issues plaintiff had failed to do so.
(f) As per the law declaratory decrees can be passed by the Court on the basis of Section 34 of the Specific Relief Act, which reads as under:-
"Sec.34 - Discretion of Court as to declaration of status or right -
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief;
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than Page 28 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined a mere declaration of title, omits to do so. Explanation - A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence and for whom, if in existence, he would be a trustee. "
Now looking to the above provision the power given to the Court is discretionary and it is left to the Court whether the Court will exercise its jurisdiction or not but discretion is always to be use legally and not capriciously considering the peculiar facts and circumstances of each particular case. The object and scope of this section 34 of Specific Relief Act is that the declaration by way of decree confirms no new right, it only clear ups the mists that has been gathering around the plaintiff's status. Hence, looking to the scope of Section 34 of Specific Relief Act and pleadings and evidence adduced by the plaintiff there do not appear any legality in granting such type of relief as prayed for.
(19) DISCUSSION REGARDING THE SETTLED LEGAL POSITION AS TO PUBLIC DOCUMENTS :-
The detail discussion separately had been made regarding each of the documents but so far as the revenue record in form of public document is produced, the settled legal position regarding the same so as to believe the same document is as under :-
Now, so far the documents produced are concerned Page 29 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined looking to the all documents are public documents and settled legal position regarding admissibility of public documents is concerned when admitted need not be proved, documents produced as per the law because as per law the documentary evidence produced by plaintiff as discussed above has to be proved as per law for that the settled position of law is to be understood and to prove it as per law, let us see what documentary evidence which are produced whether are public documents and considered to be proved and produced in manner prescribed by law. As per Law "Documentary evidence" means all documents produced for the inspection of the Court (Section 3) Evidence Act for that :- Documents are of two kinds: Public and Private as per the Law. The contents of documents must be proved either by the production of the document which is called primary evidence, or by copies or oral accounts of the contents, which are called secondary evidence. The section lays down that the contents of documents may be proved either by primary or secondary evidence; this means that there is no other method allowed by law for proving the contents of documents. Plaintiff had produced all primary documentary evidence to prove his case and hence plaintiff had produced Primary evidence as per law i.e. evidence which is required to be given by law first. Further when the document is produced from proper custody, It can be held that the document was properly Page 30 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined proved. Here all document produced are from proper custody and are public documents. Now there are several exceptions to the rule which requires primary evidence to be given. The most important and conspicuous exception, however is with respect to the proof of records and other public documents of general concern; the objection to producing which rests on the ground of moral, not physical inconvenience. They are, comparatively speaking, not liable to correction, alteration or misrepresentation the whole community being interested in their preservation and in most instances, entitled to inspect them; while private writings on the contrary, are the objects of interest but to few whose property they are and the inspection of them can only be obtained, if at all, by application to a Court of justice. The number of persons interested in public documents also renders them much more only would great inconvenience result from the same documents being wanted in different places at the same time, but the continuous change of place would expose them to be lost, and the handling from frequent use would soon ensure their destruction. For these and other reasons the law deems it better to allow their contents to be proved by derivative evidence and to run the chance, whatever that may be of erros arising from inaccurate transcription, either intentional or casual. But true to its great principle of exacting the best evidence that the nature of the matter affords, the law requires Page 31 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined this derivative evidence to be of a very trustworthy kind and has defined, with much precision the forms of it which may be resorted to in proof of the different sorts of public writings. and here as discussed the public documents produced are admissible in evidence and as per sec-79 of evidence Act the presumption is made which is verbatim reproduced :- "Section 79 of evidence Act, "The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the state of Jammu and Kashmir who is duly authorized there to by the Central Government: provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper." Hence as per the law under section 79 of Evidence Act a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. The expression shall presume to be genuine implies raising of a presumption of genuineness from the certified Page 32 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined copy as to the correctness of the record, and also as to the genuineness of such copy. Hence it can be said that Unless contrary is proved, the Government records produced in evidence shall be presumed under section 79 of the Evidence to be correct and genuine. Where a document bearing a seal and signature of the officer mentioned that the officer named in it had authority to certify the copy, it was held that the document must be presumed to be duly certified and It is held by Honorable Apex court that, "A certified copy of a document can be admitted without any formal proof discussed above the Certified copy of a revenue record raises a presumption of its genuineness. Now the documents which are produced by the plaintiff in support of pleadings and oral evidence are either original or certified copies of public documents and for public document as per sec-74 of evidence act it is very settled position that, "A public document is presumed to be prepared by a public servant in the discharge of his official duties unless disproved. All the public documents have this characteristic that they are kept in some special custody and are provable by means of a copy without production of original. and The law had created a legal presumption in favor of the genuineness of a document. Now further for proof such public document it is held by Honorable High court that, "If any document is a public document, the contents of the document or Page 33 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined part of the document can be proved by production of a certified copy of the same." The Principal underlying this section is to obviate the production of original public document for evidentiary purpose. Further, Honorable Supreme Court held that certified copies of public documents are admissible in evidence without being proved by calling witness." It also held by Honorable Supreme Court that how proof of public documents can been done and is held that for certified copies of public documents are admissible in evidence without being proved by calling witness." so by producing and proving the above certified copies of public documents sufficient documentary evidence in his favor as per law to prove his pleadings regarding the suit property not only that the public documents produced is from custody of government employees in deposition i.e evidence given in court on oath hence as per the pleadings and evidence adduced on the record it is proved that defendant had sufficient documentary evidence to prove his case hence considering above settled regarding the public document and factual aspects of the case that when plaintiff are not denying the same neither raising any defense any against it not producing any evidence contrary to it that either the same had been challenged before any competent authority etc. in that case and in absence of anything contrary on record regarding documents produced.
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NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined (20) Settled legal position of law regarding Oral Evidence:
(a) Now for that evaluation of the oral and documentary evidence adduced by plaintiff to prove his burden in manner discussed above is necessary for that oral evidence is adduced as mentioned above hence not repeated and same had been proved as per the law as for that settled principal of law is, "Oral evidence has been defined by the Act to be all statements which the Court permits or requires to be made before it by witness in relation to matters of fact under inquiry and Oral evidence, if worthy of credit, is sufficient without documentary evidence, to prove a fact or title. However, documentary evidence will prevail over oral evidence. Herein the case defendant had produced both oral and documentary evidence to prove his pleadings, as it is a cardinal rule of evidence that where written documents exist, they must be produced as being the best evidence of their own contents, here in case on hand defendant had produced sufficient evidence to prove only his title and not possession.
(b) Now as per evidence Act Section 60 that, "Oral evidence must, in all cases whatever, be direct that is to say- if it refers to a fact which could be seen, It must be the evidence of a witness who says he saw it" as this section is based on the principles of Best Evidence as mentioned above.
It is a cardinal rule of evidence that the best available Page 35 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined evidence should be brought before the court." here plaintiff had examined himself hence had adduced his own oral evidence and defendant failed to dislodge the same in cross examination so far as possession is concerned, hence the oral evidence adduced by defendant is direct evidence as required by the law and had adduced evidence of witness is of person who said that actually he initiated proceedings further in support of oral evidence documentary evidence is produced which also corroborated by the oral evidence of plaintiff (F) DISCUSSION REGARDING RIGHT OF WOMAN & NECESSARY PARTIES :-
(a) Now, looking to Section 6 of the Hindu succession Act comes into play RCS/145/2012 85/88 JUDGMENT in which relevant portion reads as under Section 6 (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 in a joint Hindu family governed by the Mitakshara Law, the daughter of a co-parcener shall,-
(a)by birth become a co-parcener in her own right in the same manner as the son;
(b)have the same rights in the co-parcenary property as she would have had if she had been a son;
(c)be subject to the same liabilities in respect of the said co-
parcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a Page 36 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined reference to a daughter of a co-parcener; provided that nothing contained in this sub-section shall affect invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 .......... hence as per law the names shown in pedigree above would be necessary parties to determine share of each party in the suit properties.
Now as per law "The plaintiff in a partition suit should plead as defendants:
(i)the heads of all branches;
(ii)females who are entitled to a share on partition;"
The sisters are necessary parties and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly, hence here heads of all branches are not joined as parties not any that, as admitted above mentioned females have share and right in suit properties yet are not joined as parties hence are necessary parties are not joined the suit is liable to be dismissed on legal point.
(G) DISCUSSION REGARDING NECESSARY PARTIES :-
Now further as per say of plaintiff the properties are not partitioned and cause of action arose then the daughter is entitled to be impleaded as a necessary party as per the claim of partition being a recurring cause of action hence as Page 37 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined per law if plaintiff is filling suit on ground that properties are not divided then the persons named in pedigree is necessary party to the suit "Now In absence of impalement of first class heirs thus of Hindu ancestor the suit is not maintainable. It is held by Delhi High Court that for necessary parties in suit far partition the trial court was justified in coming to the conclusion that the suit in the absence of necessary party was not admissible. Here in case also persons name in pedigree who are legal heirs of parties are not impleaded." hence for the sake of argument it is believed that the suit properties is not divided. Yet in absence of all persons mentioned in above column the final share as who had got how much share can not be decided as admittedly and undisputedly the heirs as mentioned in pedigree above are not joined as parties in the suit who are necessary parties to decide the suit as Hon'ble Supreme Court had held who can be said necessary parties. Proper party is one whose presence is necessary to provide effective relief to plaintiff here if at all plaintiff can succeed on merits then or other wise effective order cannot be made in absence of persons in above mentioned in column. Herein case on hand without presence of all legal heirs as admitted if are not joined the question in the suit as to specific share cannot be completely decided.
Who can be said as "Necessary party " & "proper party" is discussed as under. A 'necessary party' is a person who Page 38 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. Hence it appears that in absence of all legal heirs no effective decree could be passed at all. Now as per discussion end findings on above Issues, the plaintiff is not entitled to claim relief because as per the pleadings and oral evidence of the plaintiff itself it appears that the suit is filed on the basis of the pleadings that there was a partition and in the relief para plaintiff claims that he wants a decree as prayed for, hence, such vacant relief without specification cannot be granted in favour of the plaintiff because the plaintiff had failed to show that there is jointness of the family property and he is entitled to a specific share. Hence, no question arise for any share. Hence, considering the facts of the case on hand oral evidence adduced and the above settled legal positions it appears that in absence of any proof regarding the legal possession it appears that defendant is having title over the suit property but is not in possession of the same. Hence, by following due process of law defendant can claim the Page 39 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined possession back over the suit property hence, the relief prayed in paragraph No.13(1) regarding the declaration of title relief prayed regarding declaration of possession in paragraph No.13(2) and relief claimed regarding perpetual injunction in paragraph No.13(3) of the plaint do not appears to be granted in favour of plaintiffs."
4.5 By giving the aforesaid findings, the learned trial Court has dismissed the suit, which was challenged by way of appeal before the learned lower appellate Court. 4.6 After going through the above discussion given by the learned trial court, the learned appellate court has found that "the burden is on the plaintiff to prove that whether the plaintiff is the only owner of the property in support of which, plaintiff has produced oral evidence and documentary evidence for being owner regarding the property given for cultivation and whether the defendants are interrupting in the possession of the plaintiff as alleged? Thereafter, the learned lower appellate court, after considering the revenue receipts regarding the payment of tax, the person in whose name the said property exists are shown as name of the defendants and not the plaintiff and as revenue record is for the fiscal purpose, at the most, possession can be believed but that too, it should be proved that such possession should Page 40 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined be legal and valid possession. As it is admitted by the defendants that they have never come up for cultivating the suit property, it can be said that they were not in possession of the suit property; but same lies with the plaintiff, on the basis of mere possession, title cannot be proved. It is evident from the record that for more than 32 years, the plaintiff sat idle and hence this creates the suspicion over the conduct of the plaintiff because a normal prudent man also acts in natural manner would immediately rush to the proper forum to end the dispute, but had failed to do so." 4.7 The learned lower appellate Court has also appreciated the fact that the "the learned trial court has rightly come to the conclusion with regard to issue no.7 in negative as the learned trial judge has properly appreciated the settled principle of law that it is not necessary that partition has to be affected by metes and bounds as it does not mean that person shall be put in separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties, then each party must necessarily be given a share in all movable and immovable Page 41 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined properties, therefore, it appears that the partition has been affected and each party was in separate possession. Hence, the plaintiff has failed to discharge the burden to prove the pleadings and documents on record as per the settled principle of law.
4.8 The learned lower appellate court has further observed that "the learned trial court has properly evaluated the definition of permanent injunction in its impugned judgment as the legal right of the plaintiff has not been infringed as it is the plea that the defendant is harassing and trying to dispossess the plaintiff by claiming ownership and possession but looking to the findings and issues discussed in the impugned judgment, relief of injunction cannot be granted to the plaintiff. Under section 38 of the Specific Relief Act, perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication." 4.9 Therefore, the learned lower appellate court has also dismissed the appeal by reappreciating the entire evidence.
5. In the backdrop of the above facts and discussion, both the learned courts below have considered the case of the plaintiff as well as appreciated the material available on the record, the documentary as well as oral evidence and pleadings of the parties. The learned trial Court has framed Page 42 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024 NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined the issues and discussed each and every document in detail for arriving at the findings of the issues. The learned lower appellate court has also reappreciated the entire evidence, framed the points for determination and gave findings for arriving at the conclusion.
6. Therefore, considering the entire material available on the record and in view of the above discussion and in view of the concurrent findings of the both the courts below I find that there is no perversity or illegality in such findings given by the learned trial court as well as the learned lower appellate court. On the contrary, the learned trial court has discussed in detail every document and all aspects involved in the matter. The learned lower appellate court has also reappreciated the entire material available on the record which is found in consonance with law and no error, much less, error of law is committed by the learned courts below.
Section 100 of CPC reads as under:
"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.
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NEUTRAL CITATION C/SA/309/2023 JUDGMENT DATED: 04/04/2024 undefined (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section 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 it is satisfied that the case involves such question."
Therefore, in view of the above and the judgment of the Hon'ble Apex Court in the cases of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others.reported in 2023 SCC Online SC 875 and Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321, this second appeal is required to be dismissed at the admission stage as no substantial questions of law is involved and is accordingly dismissed.
In view of the dismissal of the second appeal, the civil application also stands dismissed.
(SANDEEP N. BHATT,J) SRILATHA Page 44 of 44 Downloaded on : Tue Apr 09 20:36:35 IST 2024