Allahabad High Court
Shakti Singh Patel And Another vs Veer Singh And 5 Others on 6 May, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 26.04.2022 Delivered on 06.05.2022 Court No. - 10 Case :- SECOND APPEAL No. - 356 of 2022 Appellant :- Shakti Singh Patel And Another Respondent :- Veer Singh And 5 Others Counsel for Appellant :- Arpit Agarwal Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Arpit Agarwal, learned counsel for the appellants.
2. This is plaintiffs' second appeal under Section 100 of Code of Civil Procedure (hereinafter called as "CPC") arising out of judgment and decree dated 13.03.2019 passed by District Judge, Pilibhit and judgment and decree dated 08.03.2022 passed by Civil Judge (Senior Division) arising out of Original Suit No.66 of 2012.
3. Facts, in brief necessary to appreciate the controversy in hand, are that the plaintiff filed an Original Suit No.66 of 2012 claiming relief of permanent injunction against the defendants-respondents for not interfering in the property mentioned in the plaint.
4. Case set up by the plaintiff was that a registered Will was executed on 08.07.1954 by one Smt. Ram Daulati in favour of late Ram Chandra Lal, father of the plaintiffs. The testator of the Will died in the year 1957 and since then the possession of late Ram Chandra Lal continued till his death and thereafter the plaintiffs are in possession. The plaintiffs had demolished the two storey building which was existing over the land in dispute for constructing a new house. It was on 10.03.2012, when the plaintiffs were trying to raise construction then the defendants objected and tried to take forcible possession. Hence, the suit for injunction was filed.
5. The plaintiffs filed a list of documents which included the electricity bill, the tax receipts etc. Despite, notice, the defendants did not turn up and the trial Court proceeded ex-parte, and on 13.03.2019 dismissed the suit on the ground that plaintiffs claimed to be the owner in possession on the basis of the Will deed dated 08.07.1954, which was not brought on record and only the receipts of the Nagar Palika Parishad regarding house tax and water tax were filed.
6. Against the said judgment, a Civil Appeal No.24 of 2019 was filed, the lower appellate Court framed the following points of determination under Order 41 Rule 31 of CPC, which are as under:-
"1. क्या विद्वान अवर न्यायालय द्वारा पारित किया गया प्रश्नगत निर्णय पत्रावली पर उपलब्ध साक्ष्य के विपरीत है?
2. क्या अपीलार्थी द्वारा प्रस्तुत की गयी पंजीकृत दिनांकित 08.07.1954 के आधार पर अपीलार्थी / वादीगण का कोई विवादित संपत्ति में पहुंचते है अथवा नहीं?"
7. During the pendency of the appeal, the plaintiffs-appellants filed copy of the Will deed under Order 41 Rule 27 of CPC, which was taken by the Court. The lower appellate Court tried both the points together and found that the alleged Will dated 08.07.1954 was not proved by the appellants as required under Section 63 (C) of the Indian Succession Act, 1925 (hereinafter called as "Act 1925") read with Section 68 of the Indian Evidence Act, 1872 (hereinafter called as "Act 1872"), and further held that Section 90 of the Act of 1872 was not applicable, which was in regard to the presumption of document being 30 years old. The lower appellate Court on 08.03.2022 dismissed the appeal, hence the present appeal.
8. Sri Arpit Agarwal, learned counsel for the appellants submitted that lower appellate Court fell into the trap by holding that the case of the appellants was not covered under Section 90 and in fact, covered under Section 90-A (2) of the Act, 1872. According to him, both the sections operate in a different field, and the Will dated 08.07.1954 was a 67 years old document, and as per Section 90, the said Will should have been presumed to have been executed by the testator in favour of late Ram Chandra Lal. According to him, the lower appellate Court wrongly held that the case would fall under sub-Section 2 of Section 90-A of the Act, 1872.
9. Reliance has been placed upon the decision of Co-ordinate Bench of this Court in case of Nirmala Verma Vs. Nirmal Banerjii and others 2010 (1) AWC 978. Relevant paras 27 and 31 are extracted hereasunder:-
"27. The Court further finds that the lower appellate court has observed that the presumption under Section 90 of the Evidence Act was not available to the appellant on the ground that the documents filed was not 20 years old. The lower appellate court held that the lease-deed was executed on 21.2.1963 and that the suit was filed on 5.2.1973, i.e., approximately 10 years old on the date of the institution of the suit and therefore, the provisions of Section 90 and 90A of the Act was not applicable. In my opinion, the finding of the lower appellate court is not correct. For facility, Sections 90 and 90-A of the Evidence Act, as applicable in the State of U.P., reads as under :
90. Presumption as to documents thirty years old.-Where any document purporting or proved to be thirty years old, is produced from any custody which the signature and every other party of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
90-A. Presumption as to electronic record five years old:-- Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf."
31. In Manjoor Ali and Anr. v. Kishmat Ali and Ors. MANU/UP/0519/2004 : AIR 2004 Allahabad 395, I had the occasion to deal with the provisions of Section 90 and 90A of the Evidence Act. The Court held-
"From the aforesaid it is clear that Section 90-A(20 does not override Section 90 of the Evidence Act. Both the sections operate in different fields. A document which is registered and which is more than 20 years old could not be admitted in evidence under Section 90-A(2) if the said document is the basis of the suit or of defence. However, the presumption, if available under Section 90, can therefore be raised by the Court even after holding that the presumption is not available under Section 90-A of the Act. Thus, I hold, that the presumption under Section 90(2) of the Evidence Act is not taken away by the provisions of Section 90-A )(2) of the Act.
The question therefore, that arises in the present case is whether the presumption under Section 90(2) of the Act was available on the certified copy of the sale deed dated 16-5-1933 to the plaintiff. It is relevant to state here that Section 90 of the Act removes the strict rule of proof of private documents. Presumption of genuineness may be raised where the document is produced from a proper custody. However, in view of the provisions of Section 90 of the Act, it is the discretion of the Court to accept the presumption flowing from Section 90. In the present case, the mere production of the certified copy of the sale deed was not by itself sufficient to justify the presumption of the execution of the original under Section 90. The provisions of Section 90 has to be read along with Section 65 of the Act. Mere production of a certified copy of the said deed is not sufficient to draw a presumption under Section 90. It must be shown that the document produced was a copy admitted as secondary evidence under Section 65 of the Act.""
10. Reliance has also been placed upon decision in case of Jeevan Bahadur Samaddar Vs. Govind Charan Samaddar and others, 2013 (120) RD 717. Relevant para 18 is extracted hereasunder:-
"18. However 'presumption' under Section 90 is not obligatory on the part of the Court. The word 'may' used in both sub-sections leave it to the Court, to draw such presumption or not. Obviously, if the Court decline to raise presumption, it must be for valid reasons. The words 'may presume' has been defined in Section 4 of Act, 1872 and reads as under:
"4. "May presume"- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."
(emphasis added)"
11. Sri Agarwal then contended that father of the plaintiffs continued in possession over the property in dispute since 1954 till his death and thereafter the plaintiffs continued, but dispute arose after the existing building was demolished and construction was going to be raised. According to him, the Will which was registered in 1954 should be presumed to be a document executed by the testator and need not be proved in the present suit in view of provisions of Section 90. He then contended that Section 68 of the Act of 1872 will not be attracted in the present case as both the attesting witnesses are dead and it is only when the Will is put to execution, it was to be proved by one of the attesting witnesses. In the present case, as the document in question was 30 years old (in U.P. Amendment 20 years). The said Will was not required to be proved and it will be presumed to have been duly executed by the testator in favour of the propounder of the Will.
12. I have heard counsel for the plaintiffs-appellants and perused the record.
13. After perusal of record, this Court finds that the plaintiffs-appellants had filed a simplicitor suit for permanent injunction restraining the defendants from interfering in their peaceful possession on the basis of the Will deed said to have been executed on 08.07.1954 in favour of father of the plaintiffs. The Will deed was never put to execution either by the father of the plaintiffs or the plaintiffs who are said to be the propunder of the Will.
14. Before adverting to decide the present appeal, a cursory glance of provisions of Section 63 of the Act, 1925, Sections 68, 69, 90 and 90-A of the Act of 1872 are necessary for the better appreciation, which are extracted hereasunder:-
The Indian Succession Act, 1925 "S. 63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
The Indian Evidence Act, 1872 "S. 68. Proof of execution of document required by law to be attested. -- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] S. 69. Proof where no attesting witness found. -- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
S. 90. Presumption as to documents thirty years old. -- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
S. 90A. Presumption as to electronic records five years old. -- Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the 2 [electronic signature] which purports to be the 2 [electronic signature] of any particular person was so affixed by him or any person authorised by him in this behalf.
Explanation. -- Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable."
15. Chapter III of Act 1925 is in regard to the execution of unprivileged Wills. Section 63 provides the manner in which a testator shall execute his Will :-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction,
(b) The signature or mark either of the testator, or the signature of the person signing for him, shall be placed and shall appear that it was intended to give effect to the writing as a Will,
(c) the Will has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark on the Will. Further, each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time.
16. Thus, the Act of 1925 prescribes the methodology for execution of a Will. The Act of 1872 is a procedural law and Section 68 provides for the proof of execution of a document which is required by law to be attested.
17. Proviso to the said Section requires that in case of proving a Will, the same has to be done through attesting witnesses. The legislature had prescribed the procedure for proving the execution of a Will through an attesting witness. But, in cases where the attesting witnesses are not available, as in the case of death or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite diligence search. In those cases, the Will may be proved in the manner provided in Section 69 of the Act of 1872.
18. The Supreme Court in Babu Singh and others Vs. Ram Sahai @ Ram Singh, 2008 (14) SCC 754 had the occasion to consider the effect of Sections 68 and 69 of the Act of 1872. Relevant paras 17 and 18 are extracted hereasunder:-
"17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."
19. In the case in hand, it was a specific case of the plaintiffs that Will deed was executed on 08.07.1954 and more than 67 years have elapsed and both the attesting witnesses have died, thus Section 69 comes into play and the execution of the Will deed was required to be proved according to Section 69 by at least proving that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the Will is in the handwriting of that person. But, the plaintiffs apart from filing the Will deed dated 08.07.1954 during pendency of the appeal did not take any step to prove the handwriting of either one of the attesting witness or the executor, and solely relied upon Section 90 of the Act 1872, for presuming the document to be 20 years old, which need not to be proved.
20. The Division Bench of Delhi High Court in Jagdeesh Prasad Vs. State Manu/DE/0605/2015, in a similar circumstances, held that in case of death of attesting witnesses, Section 69 of the Act comes into play and the execution of the Will deed is required to be proved by the handwriting of one of the witnesses and the executant . Relevant Paras 13, 14 and 15 are extracted hereasunder:-
"13. The legislature was conscious of the fact that a situation may arise where both attesting witnesses have taken the train to the heaven before the testator died or before the beneficiary propounds the Will. The consciousness of the legislature can be found in Section 69 of the Indian Evidence Act, 1872, which reads as under:-
69. Proof where no attesting witness found -
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
14. Section 69 of the Indian Evidence Act, 1872, while dealing with a situation where no attesting witness can be found, requires evidence to be led that the signatures on a document which law requires to be attested by one or more witnesses are that of the executant with further proof that there is attestation in his handwriting by one attesting witness.
15. Law does not envisage that if both attesting witnesses to a Will have died or for some reason are not available, that would be the end of the Will. The way forward has been guided by the legislature under Section 69 of the Indian Evidence Act, 1872."
21. A Co-ordinate Bench of this Court in Santosh Kumar Gupta Vs. Harvinder Nath Gupta and others, 1996 SCC Online All 1325 while deciding the testamentary suit held that in case, the attesting witnesses are dead or not available, the execution of the Will can be proved in accordance with mode prescribed under Section 69 of the Act, then Court should not raise presumption under Section 90 of the Act and admit the document in evidence, but direct the party to prove the document by leading evidence. Relevant Para 15 is extracted hereasunder:-
"15. As already discussed above, plaintiff in this case has failed to prove by cogent evidence that both the attesting witnesses are dead. The plaintiff has also failed to prove the hand writing and the signature of said attesting witnesses under Section 69 of the Evidence Act. He has not produced any relation or any such person who would depose that the attesting witnesses were dead. On the contrary, the plaintiff had tried to prove the same by his evidence and has failed to establish the said fact before this Curt. In such a situation, in my opinion, the presumption under Section 90 of the Evidence Act is not available to the plaintiff. I consequently do not find any force in the submission of Shri J. Nagar regarding the presumption about due and valid execution and attestation of the document on the ground that is is over 30 years old. In view of the aforesaid discussion I am of this opinion that the plaintiff has failed to prove the due and valid execution and attestation of the Will (A-5). Issues 1 and 2 are decided accordingly against the plaintiff."
22. Dealing with the similar situation for the execution and proving of a Will under Section 63 of the Act 1925 and Section 69 read with Section 90 of the Act 1872, the Apex Court in Bharpur Singh and others Vs. Shamsher Singh, 2009 (3) SCC 687, held that in case, the provisions of Section 68 of the Act 1872 could not be complied with, then the other provisions contained therein, namely, Section 69 and 70 would be attracted. Relevant Paras 18 and 19 are extracted hereasunder:-
"18. Respondent was a mortgagee of the lands belonging to the testatrix. He is also said to be the tenant in respect of some of the properties of the testatrix. It has not been shown that she was an educated lady. She had put her left thumb impression. In the aforementioned situation, the question, 15 which should have been posed, was as to whether she could have an independent advice in the matter. For the purpose of proof of will, it would be necessary to consider what was the fact situation prevailing in the year 1962. Even assuming the subsequent event, viz., the appellants had not been looking after their mother as has been inferred from the fact that they received the news of her death only six days after her death took place, is true, the same, in our opinion, would be of not much significance.
19. The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence."
23. It is no doubt correct that a Will executed under Section 63 of the Act, 1925 has to be proved that it was executed, at least by one of the attesting witnesses under Section 68, the requirement of Section 63 of Act, 1925 read with Section 68 of Act, 1872 has already been considered and upheld by the Apex Court in case of B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and others, 2006 (13) SCC 449.
24. It is only in case where plaintiffs come up with a case that the attesting witnesses of the Will have died or not available to prove the execution of the Will as required under Section 68, then the alleged Will deed is required to be proved by the handwriting of one of the witnesses of attesting witnesses and the executant under Section 69.
25. Argument raised at bar that there was no requirement to prove the execution of Will under Section 68, as presumption in favour of the execution of Will is there, under Section 90 is a fallacy and has no merit.
26. As regards, a Will which has been executed under Section 63 of the Act 1925, the mandatory provision has been provided under Section 68 for proving its execution in case of non-compliance of Section 68, Section 69 is attracted. Reliance placed upon the decision by appellants on the decision of Nirmala Verma (Supra) is distinguishable in the present case and the same is not applicable.
27. Moreover, in that case, provisions of Section 69 of the Act 1872 were not considered. Further the relief sought in the suit is only for the permanent injunction claiming on the basis of the Will deed executed in favour of the father of the appellants. No declaratory relief has been sought by the plaintiffs for declaring their ownership/title on the basis of the Will dated 08.07.1954. The Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and others 2008 (4) SCC 594 had cleared the air in regard to the principle as to when a suit for permanent injunction will lie. Relevant Paras 13 and 21 are extracted hereasunder:-
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
28. Thus, the position, which culls out is that the permanent injunction was sought on the basis of a Will without seeking a declaratory relief by the plaintiffs nor any effort was made to prove the execution of the Will from where the plaintiffs sought to derive their title. The suit filed by the plaintiffs for permanent injunction was defective as declaratory relief was not sought and the title was under cloud, which could have been proved only by adhering to the provisions of Section 69 of the Act of 1872.
29. Thus, considering the facts and circumstances of the case, I find that no case for interference has been made out by the plaintiffs-appellants before this Court. More so, the argument that Will deed dated 08.07.1954 was to be presumed to have been executed in view of Section 90 has no merit as the plaintiffs were required to prove the execution of the Will by adverting to provisions of Section 69 of the Act 1872 by proving through the handwriting of one of the witnesses of the Will and the executant which he failed and thus, not entitled to any relief.
30. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
31. Both the Courts below had rightly dismissed the suit of the plaintiffs-appellants, which needs no interference by this Court. No substantial question of law is made out.
32. Second appeal fails and is, hereby, dismissed.
Order Date:- 06.05.2022 SK Goswami [Rohit Ranjan Agarwal, J.]