Gujarat High Court
Vinodbhai Bhikhabhai Patel vs Shantaben Khushalbhai Patel on 23 September, 2022
C/SA/365/2019 JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 365 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/SECOND APPEAL NO. 365 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 3 of 2021
In
R/SECOND APPEAL NO. 365 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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VINODBHAI BHIKHABHAI PATEL
Versus
SHANTABEN KHUSHALBHAI PATEL
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Appearance:
MR MEHUL SHAH, SENIOR COUNSEL WITH MR NK
MAJMUDAR(430) for the Appellants
MR MIHIR THAKORE SENIOR COUNSEL WITH MS MEGHA
JANI(1028) for the Respondents
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C/SA/365/2019 JUDGMENT DATED: 23/09/2022
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 23/09/2022
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied by the impugned judgment and order dated 04.04.2019 passed by the learned Additional District Judge, Vadodara in Regular Civil Appeal No.43 of 2008 confirming the judgment and decree dated 30.09.1994 passed by the learned 4th Additional Civil Judge (S.D.), Vadodara in Special Civil Suit No.536 of 1982. The appellants herein are the original defendants and the respondents herein are the original plaintiffs.
2. The appeal is pending since 2019 for admission and no questions of law are yet to be framed and, therefore, the learned counsel appearing for the respective parties press for final hearing and disposal of the appeal. Therefore, with the consent of learned counsel appearing for the respective parties, the present appeal is taken up for final hearing.
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3. Brief facts of the present case are as under:-
3.1 That the original plaintiff - Khushalbhai Chhotabhai Patel filed Special Civil Suit No.536 of 1982 seeking division and/or partition of ancestral property and to handover the legal possession of the suit property. The plaintiff, defendant no.1 and deceased Umedbhai Chhotabhai Patel are the real brothers.
Chhotabhai Amdubhai Patel was holding various agricultural lands and property in Village: Bhayali. That after the death of Chhotabhai, one Lambha Lekh (family settlement) dated 27.03.1950 was executed between the mother - Jivaben and three brothers and the property was divided as per the Lambha Lekh. The deceased Umedbhai had executed a registered sale deed on 10.05.1961 and accordingly he became the owner and came into possession of the share, which belonged to deceased Umedbhai. In the said Lambha Lekh, the brothers and mother -
Jivaben had made arrangement for maintenance of the mother and after the death of Jivaben, the share of the mother was divided between all the brothers. The defendant no.1 filed a Page 3 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 revenue case before the Revenue Authority claiming to be the tenant of the suit property, which had come into the share of the plaintiff and deceased Umedbhai. The claim of the defendant was rejected and revenue proceedings culminated in favour of the plaintiff. The division of the agricultural property had not taken place and defendant no.1 used to raise dispute including criminal case and restrained the plaintiff in cultivating the land which had come into his share and this had caused to file the suit. The original plaintiff filed Special Civil Suit No.536 of 1982 for division / partition of the ancestral property and for permanent injunction before the Civil Court, Senior Division, Vadodara (hereinafter be referred to as the "Trial Court").
3.2 The Trial Court having regard to the pleadings of the parties framed the following issues vide Exhibit 161.
(1) Whether the plaintiff proves that after the death of Chhotabhai, the property of the Chhotabhai was divided between Jivaben, Umedbhai, plaintiff and defendant No.1 as per Lambha Lekh dated 27.03.1950 as alleged?
(2) Whether the plaintiff proves that he has got 2/3 share in the H.U.F. property as alleged?
Page 4 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022C/SA/365/2019 JUDGMENT DATED: 23/09/2022 (3) Whether the plaintiff proves that the suit is barred under law of limitation?
(4) Whether the defendants prove that they have become the owners by adverse possession?
(5) Whether the suit is bad for misjoinder of the parties? (6) Whether the plaintiff is entitled for getting the possession of the suit property as described in plaint at para 11(1)?
(7) Whether the plaintiff is entitled to claim relief as prayed?
(8) What order and decree?
3.3 The issues framed by the Trial Court referred to above came to be answered as under:-
(1) In the negative;
(2) In the affirmative:
(3) In the negative;
(4) In the negative;
(5) In the negative;
(6) In the affirmative;
(7) In the affirmative;
(8) As per final order;
3.4 The Trial Court, on appreciation of the oral as well as documentary evidence on record, decreed the suit with cost and Page 5 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 the defendants were ordered to handover the suit property as prayed in para-11 of the plaint within six months and if the defendants fail to comply with an order they will be at liberty to ask for the further relief for the appointment of the Court Commissioner regarding the compliance after the completion of six months. Further, regarding relief of mense profit, the Trial Court dismissed the same.
3.5 The Trial Court, while deciding the suit, has observed in paragraphs no.6, 7 and 8 as under:-
"6. As far as the issue no.1 is concerned, the burden of proof lies on the plaintiff to prove it that HUF property is belonging to Chhotabhai Amthabhai divided between the brothers as per Lambha Lekh dated 27.03.1950. As per the say of the plaintiff, his father was expired before long time and widow of deceased Chhotabhai Amthabhai is Jiviben who is known as Jibaben and he has divided the suit property as per Lambha Lekh dated 27.03.1950. The Lambha Lekh is produced and proved at Exh.31 and looking to the Lambha Lekh, it appears that the property is divided but the said Lambha Lekh is not registered and looking to the Lambha Lekh, it appears that the property is an agricultural land and it belongs to S.No.648, 168 and 171/1 and other are fragment land and the provisions of the Fragmentation law is applicable as agricultural land is Page 6 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 divided into various parts and the parts have gone to three brothers. Looking to the entire record of this matter, it appears to me that no doubt, the Lambha Lekh is executed but no action has taken place pertaining to the division of the property as per Lambha Lekh and has not been divided as Lambha Lekh hence issue no.1 in negative.
7. As far as issue no.2 is concerned, there is no dispute between the parties that the plaintiff and deceased Bhikhabhai was real brothers and defendant nos.2 to 5 are legal heirs of deceased Bhikhabhai and they have got the interest in the property of their father. As the plaintiff has purchased the property from Umedbhai it was purchased by the plaintiff which can be seen at Exh.84. Hence, the plaintiff has become the owner of 2/3 share of the property and his mother was expired hence by Hindu Succession right, the plaintiff is getting 1/2 share of the property of the deceased mother Jiviben. Moreover, defendant no.1 had raised some dispute pertaining to the said property which was dismissed by the Revenue Officer, regarding the contention as to a tenant. The deposition of the defendant in revenue proceedings is produced at Exh.90 wherein the defendant has admitted that the plaintiff has got 2/3 right in the suit property hence reply of issue no.2 comes in affirmative. Moreover, the suit property is belonging to the ancestral one and there is no dispute between the parties. Moreover, in the written statement also, the defendant never contended that the suit property is not an ancestral one. The defendant is examined at Exh.122 wherein the defendant has agreed that property No.171/1, 1156, 1628/2 and 1686 are belonging to Chhotabhai Amthabhai.Page 7 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Moreover, it is admitted that the house No.550 was purchased by Chhotabhai Amthabhai hence one thing is crystal clear that the entire suit property was belonging to ancestral one hence I have no hesitation in quote here that the suit property is belonging to the Hindu Undivided Property and as per the division made in the Lambha Lekh dated 27.03.1950 some property had gone in the part of the plaintiff, defendant and deceased Umedbhai and as per the sale deed as proved by the plaintiff, the plaintiff has purchased the property which has gone to Umedbhai and more particularly after the death of mother Jiba 1/2 property have gone in the favour of the plaintiff hence the plaintiff has got 2/3 part of the share of the entire suit property as described in the Lambha Lekh hence reply of issue no.2 comes in affirmative.
As far as issue no.3 is concerned, the defendant has raised a contention regarding the provision of the Limitation Act, as suit is barred under law of limitation. For that purpose one thing can be seen that no doubt, that the Lambha Lekh is not registered but as per the execution of the Lambha Lekh, all the parties were having the possession of the properties regarding the averments made in the Lambha Lekh and whatever, the property had gone in favour of all brothers and mother they were enjoying the property but the dispute had raised in the year 1982. The defendant no.1 quarreled with the plaintiff and fractured was also made to the plaintiff and defendant no.1 was convicted by the Court of law and it can be seen that in the year 1982, the defendant no.1 has taken the possession of the property hence one thing is crystal clear to note that on Page 8 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 13.06.1982, the defendant no.1 had taken the possession. One another thing can be noted from Exh.37 to 42 utara which can be seen that property had gone in favour of the plaintiff and a possession has been cited separately and agricultural right is also cited in 7/12 utara. In the year 1982 the plaintiff was having the possession of the two lands in supporting their contentions they had proved and produced a revenue receipt at mark 61 to 82 which are belonging for the year 1982-83 which can be presumed that the plaintiff was cultivating the suit land. Moreover, the plaintiff was pleased to sell the cotton to the Varnama Group Society which is in the year 1982 hence one thing is crystal clear to note that the plaintiff was having the possession of the suit property till 1982. Moreover, the plaintiff has produced a tax assessment, copy of it produced at Exh.96 which year of 1981-82 the property was running in the name of the plaintiff. The plaintiff has paid which can be seen by receipt at Exh.62 & 63 hence there is no hesitation to hold that the plaintiff was having the possession of the suit property right from Lambha Lekh to 1982. While in the written statement, the defendant has raised the contention that the plaintiff has got monetary right but nothing has been proved in deposition and by the documentary evidence. Moreover, no documentary evidence is proved by the plaintiff that he has right over the suit property from 1950 hence the provision of the law of limitation proved in this case hence the suit was filed in the year 1982, in the year 1982 the plaintiff dispossessed by the defendant. Hence this issue is not proved by the defendant. Hence, issue nos.3 & 4 come in negative.Page 9 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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8. As far as issue no.5 is concerned, the defendant no.2 to 5 have been joined as a defendant they are the legal heirs of defendant no.1. To avoid the technicalities and at the time of handing over the possession of legal heirs may put some hurdles hence the plaintiff was pleased to join them as defendant hence the present suit is not bad for misjoinder of the parties. One thing is crystal clear that as far as the suit property is concerned, the present suit is not barred by law of limitation as well as adverse possession. Moreover, the provision of the Fragmentation Act is not applicable in this matter. Moreover, it is proved that the present plaintiff was having the possession over the suit property right from 1952 to 1982 hence the plaintiff is entitled to claim the relief as prayed. The plaintiff's L.A. Mr.Y. M. Pandya produced the case of Girijanandini Devi Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 wherein the provision of the Hindu law is provided that it is held that the rights of the coparceners are defined when there is partition. Partition consists in defining the share of the coparceners in the joint property actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. Mr. Pandya argued before me that Lambha Lekh is proved it is not necessary that as per the Lambha Lekh the possession was handed over. But one thing is crystal clear to note that the partition of the suit property has really taken place. As far as relief prayed at para 7, 8 are concerned, it is held that the plaintiff is entitled to get the relief."Page 10 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
C/SA/365/2019 JUDGMENT DATED: 23/09/2022 3.6 Being aggrieved and dissatisfied with the impugned judgment and decree passed by the Trial Court, the original defendants preferred Regular Civil Appeal No.43 of 2008 before the District Court, Vadodara [hereinafter referred to as the "first Appellate Court"] wherein the First Appellate Court framed the following issues at Exhibit 161.
(1) Whether the Trial Court committed error in concluding that the plaintiff / opponent has 2/3rd share in the H.U.F. property as alleged?
(2) Whether the the Trial court committed error in rejecting the plea of adverse possession raised by the appellant / defendant?
(3) Whether the Trial Court committed any error in concluding that the suit is within the period of limitation?
(4) Whether the Trial Court committed any error in passing order to the effect that the plaintiff shall be at liberty to ask for appointment of Court commissioner regarding the compliance, though Sec.54 of the Civil Procedure Code provides partition of estate or separate of share on the basis of decree shall be made by Collector or any Subordinate Officer of the Collector?
Page 11 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022C/SA/365/2019 JUDGMENT DATED: 23/09/2022 (5) Whether the judgment and decree passed by the Trial Court is erroneous, illegal and without appreciation of evidence are required any interference?
3.7 The points determined by the first Appellate Court referred to above came to be answered as under:-
(1) In negative;
(2) In negative;
(3) In negative;
(4) Partly in affirmative;
(5) In negative;
3.8 The first Appellate Court, while deciding the appeal, has
observed in paragraphs no.14.1, 14.2, 15, 16, 17, 20, 21, 23, 24, 25, 26, 27 and 28 as under:-
"14.1 The trial Court has recorded in the impugned judgment that, there is no dispute between the parties pertaining to Lambha Lekh in the year 1950. The Lambha Lekh is produced and proved vide Ex.31. The Trial Court answered issue No.1 with regard to division of suit property on the basis of Lambha Lekh dated 27.3.1950, in Negative. However the Trial Court has recorded that, the Lambha Lekh is produced and proved at Ex.31 and looking to the Lambha Lekh it appears that, the property is divided but Lambha Lekh is not registered, and land is agricultural land Page 12 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 and answers issue No.1 in negative but further records that, the Lambha Lekh is executed but no action pertaining to division of property as per Lambha Lekh has taken place.
14.2 Under these circumstances, this Court is required to consider as to whether there was execution of Lambha Lekh and whether the parties had decided to divide the share as per Lambha Lekh or not ? As per Lambha Lekh (Ex.31), all the three sons of Chhotabhai Patel i.e. Umedbhai Patel, Bhikhabhai Patel and Khushalbhai Patel decided to distribute suit property which is recorded in Lambha Lekh. It is stated that, Umedbhai will get the property as per condition No.1, Bhikhabhai will get property as per condition No.2 and Khushalbhai will get property as per condition No.3 and it is also recorded that, rest of the property remains undistributed and is kept for the maintenance of their mother and after the death of their mother, the property would be divided equally amongst the three brothers. The Lambha Lekh is signed by Umedbhai Patel, Bhikhabhai Patel and Khushalbhai Patel. The Ld. Trial Court has specifically recorded that the Lambha Lekh is proved. This Court records its concurrence with the findings of the Trial Court. The fact with regard to the execution of Lambha Lekh, each brother agreed 1/3rd share in suit property, is not only proved as recorded herein above, but also considering the subsequent proceedings which were initiated between the brothers, more particularly by defendant Bhikhabhai Chhotabhai Patel.Page 13 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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15. Ex.84 is the copy of registered sale deed executed by Umedbhai Chhotabhai Patel in favour of Khushalbhai Chhotabhai Patel (Plaintiff). Description of the property in the above registered sale deed describes the property as agricultural land bearing Survey No.172 and named "Dibatiyu", ad-measuring 5.5 Vigha, agricultural land bearing Survey No.648 and named "Ankoliyu", admeasuring 5.5 Vigha and one house in village Bhaiyali. It also appears from this sale deed that, Umedbhai had 1/3rd share as similarly recorded in Lambha Lekh dated 27.03.1950 in condition No.1 of the said Lambha Lekh. By the said registered sale deed the fact with regard to division of share i.e. 1/3rd share of each brother stands concluded from the Lambha Lekh as well as from the registered sale deed executed by Umedbhai Patel. This fact is further fortified considering the judgment and decree recorded below RCS No.67/1963, which was filed by deceased - Umedbhai Chhotabhai Patel against plaintiff - Khushalbhai Chhotabhai Patel. The suit was filed by Umedbhai Chhotabhai Patel against Khushalbhai Chhotabhai Patel seeking cancellation of sale deed dated 10.5.1961 and the said suit was dismissed. Against this Judgment and Decree, deceased - Umedbhai Chhotabhai Patel had preferred Civil Appeal No.112/1966 and the said appeal was dismissed with cost vide order dated 8.8.1967 by the 2nd Extra Assistant Judge, Baroda. The copy of Judgment and order dated 8.8.1967 recorded below Civil Appeal No.112/66 is produced vide Ex.87. Nothing is brought on record as to whether there were further challenge to the order passed in above referred appeal and the said decision has attained finality, meaning thereby to Page 14 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 believe that, the plaintiff Khushal Chhotabhai had purchased share of Umedbhai by way of registered sale deed as established from the above referred two decisions of the Civil Court as well as Appellate Court which were preferred by Deceased Umedhai Chhotabhai Patel.
15.1 The fact with regard to each brother had 1/3rd suit property is not only proved from above referred discussion, but is further emerging from the very proceedings initiated by Bhikhabhai Chhotabhai Patel (Appellant/ Defendant). Ex.89 is a copy of order dated 8.10.1976 passed by the Mamlatdar and ALT, Vadodara, in Case No.1781/1975 wherein Bhikhabhai had claimed that he holds possession of his 1/3rd share and the opponent Khushal and Umedbhai holds 2/3rd Share and Bhikhabhai had claimed relief to declare him as tenant of the 2/3rd share which belonged to Khushalbhai and Umedbhai. The claim of Bhikhabhai with regard to tenancy is rejected by the Mamlatdar's Order dated 8.10.1976 (Ex.89).
16. Ex.90 is the copy of deposition of Bhikhabhai Chhotabhai Patel recorded in proceedings U/s.70B of the Tenancy Act. On reading deposition of the Bhikhabhai Chhotabhai Patel, he has stated that, opponents are his real brothers and he is cultivating 2/3rd share which belongs to his two brothers. Thus admission on the part of Bhikhabhai makes it clear and prove that, there were three brothers having equal share i.e. 1/3rd share in the said property. He has also stated that, the property is divided and shares are divided separately amongst three brothers. He has admitted that, the names of his brothers are Page 15 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 recorded in the Revenue Records. He has also admitted that, 1/3rd share is recorded in his name and 2/3rd share is recorded in the name of opponent No.1 i.e. in the name of plaintiff Khushalbhai. This deposition is recorded on 3.2.1976 in proceedings before the additional Mamlatdar under the Tenancy Act.
17. Ex.91 is the copy of RCS No.1780/1981, which was preferred by Bhikhabhai Chhotabhai Patel (Appellant / Defendant) against Khushalbhai C. Patel (Plaintiff/ Opponent), wherein the Additional Mamlatdar has recorded that, the opponent i.e. Khushalbhai is cultivating the land in question and rejected the claim of Bhikhabhai Chhotabhai Patel and further ordered to record the name in Revenue Records in Survey No.7/1B, 168, 171/1, 648,1156/2, 1628/2 and 1686. The above order was also challenged by appellant/ defendant Bhikhabhai Chhotabhai Patel by way of RTS Appeal No.34/1981, which was also rejected and order passed by the Mamlatdar was confirmed by Dy. Collector vide order dated 25.11.1983. The documentary evidence produced in the nature of tax assessment, Revenue Records makes it clear that, the property was in the possession and was recorded in the name of the Plaintiff - Khushalbhai Chhotabhai Patel.
20. One of the contention raised by the appellant is to the effect that, the Trial Court did not consider that, the appellant/ defendant had become owner of the suit property by adverse possession. To deal with the above contention with regard to adverse possession, it would be relevant to note that, the appellant/ defendant is claiming Page 16 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 adverse possession with the co-owners who are real brothers. It is settled position of law that, there could be no adverse possession between coowners, unless there has been a denial of title and an ouster to the knowledge of the other.
21. In the present case as recorded herein above, on one hand it is admitted by the appellant/ defendant before the Revenue Authorities that all the brothers were having equal shares and even it was his specific contention before the Revenue Authority under the tenancy proceedings that, he is holding his 1/3rd share and is in possession of 2/3rd share of his two brothers i.e. 1/3rd share of Khushalbhai and 1/3rd share of deceased Umedbhai. The appellant / original defendant Bhikhabhai claimed adverse possession of 2/3rd share, however, there 18 Regular Civil Appeal No.43/2008 is no evidence to prove the plea of adverse possession. To deal with the contention of adverse possession, it would be relevant to refer case law on this issue.
21.1 The Hon'ble Apex Court in recent decision in case of Nanjegowda @ Gowda (dead) by legal heirs Vs. Ramegowda, 2018(1), SCC 574, in the said case the suit was for declaration of title over part of family property. Defendant admitting oral partition in the family and its implementation. The defendant failed to independently establish his case by leading cogent evidence and decree was passed in the favour of plaintiff and the said decree was upheld by the Hon'ble Apex Court. In the said case, claim of adverse possession was also raised and the Page 17 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Hon'ble Apex Court has held that, there cannot be adverse possession amongst members of one family for want of animus among them for land belonging to their family."
21.2 The three Judges Bench of the Hon'ble Apex Court in case of P. Lakshmi Reddy Vs. R. Lakshmi Reddy, while examining the necessary conditions for applicability of doctrine of ouster to the share of co-owners held that, "The ordinary classical requirement of adverse possession is that, it should be nec vi nec clam nec precario. [See Secretary of State for India Vs. Debendra Lal Khan, AIR 1934, SC 23), 82]."
The possession required must be adequate, in continuity, in publicity and in extent to show that, it is possession adverse to the competitor. But it is well settled that, in order to establish adverse possession of one co-heir against another it is not enough to show that, one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of that non-possession co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret, hostile, animus on his own part in derogation of other co- heirs title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, Page 18 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 coupled with exclusive possession and enjoyment by one of them to the knowledge of the other, so as to constitute ouster. The above referred observation are made and referred by the Hon'ble Apex Court in case of Nagabhusha Nammal (D) by legal heirs Vs. C. Chandikeswara Lingam, AIR 2016 SC 1134. In view of the above principle with regard to adverse possession,there being no evidence to support the contention, this Court do not finds any merits in the contentions raised by the appellant/ defendant and accordingly point No.2 is answered in negative.
23. The plaintiff in his plaint has stated that, the cause to file the suit aroused when the Mamlatdar did not accept the division of suit property as per Lambha Lekh. The cause aroused on 23.8.1982 as the Mamlatdar did not accept division and there were continuous disputes between the brothers and therefore he filed suit in the year 1982. The defendant / appellant has raised the issue of limitation in his written statement by stating that, the suit is filed beyond period of limitation of period of 12 years. On going through the evidence which is produced by the respective parties, it appears that, each brother was holding 1/3rd share in the said property and all the brothers were enjoying the 20 Regular Civil Appeal No.43/2008 property and were in the possession of the suit property as per their share. The dispute is said to have arise in the year 1982 and this gave the cause of filing the suit. The Revenue Records also discloses that, the plaintiff was in possession of his share as well as share of deceased
- Umedbhai which plaintiff had purchased by way of registered sale deed and defendant was in possession of Page 19 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 his 1/3rd share. The appellant / defendant - Bikhabhai Chhotahai Patel had initiated various proceedings before the Revenue authority, Mamlatdar claiming 2/3rd share as tenant which belong to plaintiff - Khushalbhai and Umedbhai which is not tilted in favour of the appellant/defendant.
24. Ex.27 to Ex.42 are the extracts of Revenue records which establish that, the property had come in favour of the plaintiff and even possession is recorded separately in 7/12 extract. It also appears from the revenue receipt produced under Mark-61 to Mark-82 that, plaintiff was in possession of the two lands. The other documentary evidence in the form of Tax Assessment copy (Ex.96), Receipt (Ex.62 and 63) discloses that, the plaintiff/ opponent - Khushalbhai was in possession of the suit property upto year 1982. The defendant on the other hand except raising contentions that, suit is barred by limitation has not been able to prove that, how suit is barred by limitation. In view of the above, discussion this Court, do not find any error or illegality in the findings of the Trial Court that, the suit is not barred by limitation.
25. The appellant/defendant has raised issue in this appeal that to the Trial Court while passing impugned judgment has ignored provisions of Sec.54 and Order-20 Rule-18(2) and though the competent authority would be the Collector or any Gazetted Officer or Subordinate of Collector, who will partition or separate the share in case of decree of partition of undivided estate. It is stated that, the trial Court committed error in ordering to comply with the order Page 20 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 passed in the judgment and it would be open for the plaintiff to seek further relief for appointment of Court Commissioner regarding the compliance after completion of six months.
26. Sec.54 of CPC deals with the partition of estate or separation of share. It provides that, where ever the decree is for partition of undivided estate, access to payment or separation of share the same shall be made by the Collector or any Gazetted Officer Subordinate Officer to the Collector.
27. Order-20, Rule-18 deals with the procedure in case of decree in suit for partition of property or separate possession of a share. Rule-18 also provides separation or partition to be made by the Collector or Gazetted Officer Subordinate of the Collector deputed by him in his behalf in consonance with the provisions of Sec.54. To this extent this Court finds that, the Trial Court could not have granted liberty to apply for Court Commissioner, when Sec.54 and Order-20 Rule-18 provides specific provisions in connection with partition. Even Learned Advocate Mr. Pandya for the Opponent has stated that, he have no objection if the decree of the trial court is effected as per the provision of Section 54 and Order-20 Rule-18 of the CPC. To this extent the operative order which grants liberty to apply for Court Commissioner requires to be interfered considering the provisions of Sec.54 and Order-20 Rule-18 and it is modified to the extent that, the decree shall be effected as per the provisions of Sec.54 and Order-20 Rule-18 of Civil Procedure Code.
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28. In view of the above discussion and re-appreciation of evidence recorded before the Trial Court, this Court do not finds any error, illegality in the Judgment and records its concurrence with the findings and Judgment of the Trial Court, except with modification as discussed in point No.4. The points raised in this appeal i.e. point Nos.1, 2 and 3 are answered in negative, point No.4 is answered partly in affirmative and the appeal being devoid of merits, point No.5 is also answered in negative. Resultantly, the appeal fails and following order is passed :
:: O R D E R ::
1. This Appeal is ordered to be dismissed with cost.
2. The Judgment dated 30.9.1994 recorded below Special Civil Suit No.536/1982 is hereby confirmed except with the modification as recorded in point No.4.
3. The appellant shall pay the cost of this Appeal to the opponents and shall bear his own costs.
4. Decree be drawn accordingly.
5. Record & Proceedings be transmitted to the Trial Court along with the copy of this Judgment.
Pronounced in the Open Court today on this 4th Day of the month of April, 2019.
Page 22 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Date : 04/04/2019 (Kamal Mohanlal Sojitra) Vadodara. Additional District Judge, Vadodara. Code No.GJ01494 4. Being aggrieved and dissatisfied by the impugned
judgment and orders of both the Courts below, the present appeal is filed.
5. Heard Mr.Mehul Shah, learned senior counsel for Mr.N. K. Majmudar, learned counsel for the appellants - original defendants and Mr.Mihir Thakore, learned senior counsel for Ms.Megha Jani, learned counsel for the respondents - original plaintiffs.
6. Mr.Shah, learned senior counsel for Mr.Majmudar, learned counsel for the appellants submitted that the Courts below have committed an error in interpreting the Lambha Lekh, which never established the partition amongst the family members and signed by the members of Hindu Undivided Family. He submitted that the contention of the original plaintiff itself was contrary to the evidence and the averment made in the plaint vis-a-vis Page 23 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 documentary evidence / sale deed produced and relied upon by him for accepting the rights regarding survey no.171/1 as the documents produced by the plaintiff in the nature of sale deed of 1961 is in respect of survey no.172 and the said survey number was not owned and occupied by the plaintiff / defendant and their predecessor-in-title. He submitted that the Courts below believed survey no.171/1 as part of the Joint Family Property, though the same was self-acquired property of Bhikhabhai Chhotabhai at his own sale consideration in the name of Umedbhai Chhotabhai. He has submitted that the Courts below committed error in interpreting the documentary evidence as house no.815 (new no.990) city survey no.113, 815/1 - Vada Land having panchayat no.991 (new number) city survey no.1102 was purchased by Umedbhai Patel. He submitted that in view of the above facts, the appeal deserves allowed.
6.1. Learned counsel appearing on behalf of the appellants submitted that Special Civil Suit No.536 of 1982 came to be filed by Khushalbhai Chhotabhai Patel, against Bhikhabhai Chhotabhai, Vinodbhai Bhikhabhai Patel, Thakorbhai Bhikhabhai Page 24 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Patel and Bharatbhai Bhikhabhai Patel. He submitted that the original plaintiff, original defendant no.1 and Umedbhai Chhotabhai Patel were the real brothers and after the death of Chhotabhai Amthabhai Patel i.e. father of original plaintiff -
Khushalbhai, a Lambha Lekh dated 27.03.1950 came to be executed and the plaintiff had preferred the suit on the basis of the Lambha Lekh which came to be executed for arrangement of various properties amongst the legal heirs and representatives of deceased Chhotabhai. He submitted that the plaintiff filed the suit on the basis of the fact that if Lambha Lekh was not being considered or accepted or believed by the Court, then the properties mentioned in the plaint as well as Lambha Lekh be partitioned amongst the plaintiff and defendants. While referring to the paper-book, he submitted that the suit was filed seeking partition of the properties and the cause of action arisen for seeking partition by metes and bounds through the revenue department, as at the relevant point of time, on passing of the preliminary decrees, on declaration of the respective shares of the concerned plaintiff - defendant, the actual physical possession and actual demarcation of respective portion of Page 25 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 shares was to be done through the revenue department. He also referred to para-11, 11(2), 11(3) and 11(6) of the prayers clause and submitted that the said prayers are in respect of seeking partition of the properties as mentioned in the suit. It is submitted that even the Lambha Lekh at Exhibit 31 is an unregistered document. He further submitted that original defendants have filed written statement to the plaint and counter affidavit to the interim injunction application denying all the averments and contentions and contended that no partition had ever taken place. He submitted that the judgment and decree passed by the Trial Court provided that division of ancestral properties and/or partition of the said properties and permanent injunction and thus, the nature of the suit itself was considered as a suit for division of ancestral properties and partition of the properties.
6.2 It is submitted that the Trial Court has observed in para-6 of the judgment and decree that no doubt, the Lambha Lekh was executed but no action has taken place pertaining to the division of the properties as per the Lambha Lekh and has not been Page 26 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 divided as per the Lambha Lekh. He submitted that the findings of the Trial Court have become final and after giving the reasoning, the suit came to be decreed and possession is ordered to be handed over to the concerned plaintiffs and, thus, the reasons assigned by the Trial Court are contradictory to law.
He submitted that the defendants stated that no Lambha Lekh was executed and no partition had taken place on the basis of the said document and the same is not a document which provides for division of properties amongst the coparcener of the Hindu Undivided Family. He submitted that the deposition of the plaintiff at Exhibit 30 is required to be considered and the deposition of the defendant in respect of Section 70(b) of the Tenancy Act is very much relevant. It is submitted that in view of the statutory provisions of Section 17 of the Indian Registration Act, the Lambha Lekh could not be considered as a document, which declares the division of the respective shares in their respective properties amongst the coparcener of Hindu Undivided Family. He submitted that neither there is any challenge made to the findings of the Trial Court nor any cross-
objections have been filed by the original plaintiff as it ought to Page 27 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 have been done under Order XXXIX Rule 22 of the Civil Procedure Code. He submitted that in view of the findings on issue No.1 and issue no.2, the decree could not have been passed and the suit could not have been allowed and, therefore, the judgment and decree of the Trial Court which came to be confirmed by the first Appellate Court deserves to be quashed and set aside. He submitted that the plaintiff failed to make out any averments in the plaint and to lead oral as well as documentary evidence as to what had happened to the properties which had gone into the share of Jibaben @ Jiviben. He submitted that as per the settled proposition of law, in a suit for decree of partition, the Trial Court ought to have passed the preliminary decree by which the respective shares in the properties ought to have been declared and, thereafter, the further orders ought to have been passed for actual physical division of the share of the concerned coparcener and, thereafter, the final decree for physical division be metes and bounds was required to be passed. He also submitted that the preliminary decree and final decree have been passed simultaneously which is serious error cropped-up by both the Page 28 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Courts below. While referring to the deposition of the defendants at page no.105 and page-93, he submitted that it is clearly established that the defendant stated that the defendants are in possession of the entire lands since 1951-1952 and no partition could be said to have effected, however, the said aspects have not been considered by both the Courts below. He has submitted that various civil proceedings had taken place between the two other brothers, however, the defendants were not parties to the suit and sale transaction which had taken place was without the consent of the defendants and, therefore, the sale transactions was null and void and, therefore, the judgment and decree passed in earlier suit would not be binding to the present appellants - original defendants. He further submitted that the plaintiff approached before the revenue authority on 02.09.1976 and considering the averments made in para-7, para-14 and Lambha Lekh, it appears that the suit was barred by law of limitation as the limitation was started from 27.03.1950 and the same had continued to remain in force and the suit was filed on 30.12.1982, which came to be barred by law of limitation. He has submitted that considering Article 113 of the Limitation Act, the Page 29 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 suit for partition ought to have been filed within a period of three years and the suit for possession ought to have been filed within the period of three years from the date of the so-called Lambha Lekh. He has submitted that survey no.171/1 was never sold by one of the brother - Umedbhai to the plaintiff, however, the decree provides the same and, therefore, there is serious error cropped-up while passing the decree. He has submitted that the provisions of Section 103 of the Civil Procedure Code, this Court can interfere with the findings of facts in a given case if finding of question of law is erroneous and if Trial Court's decree is perverse or without considering the pleadings and relevant evidence or on erroneous approaches or requires constructions of documents. He lastly submitted that in view of the facts and circumstances of the case, the appeal deserves to be allowed.
6.3 In support of his arguments, Mr.Shah, learned senior counsel relied upon the following decisions.
(1) Ramabhai Shamalbhai Patel and another Vs. Ravjibhai Motibhai Patel, 2015 (1) GLR 494;
(2) Krishna Pillai Rajasekharam Nair Vs. Padmanabha Pillai Page 30 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 and others, AIR 2004 SC 1206;
(3) Raghunath Das Vs. Gokal Chand and another, AIR 1958 SC 827;
(4) Saraswatiben Kantilal Patel and others Vs. Jivanlal Chunilal Patel and others in Special Civil Application No.12040 of 2014 dated 31.03.2015;
(5) Hasmat Ali Vs. Amina Bibi and others, 2021 14 Scale 2022;
(6) Illoth Valappil Ambunhi Vs. Kunhambu Karanavan, (2020) 18 SCC 317;
(7) Uma Pandey and another Vs. Munna Pandey and others, AIR 2018 SC 1930;
(8) Abdul Raheem Vs. Karnataka Electricity Board and others, (2007) 14 SCC 138;
(9) Patel Ramanbhai Mathurbhai Vs. Govindbhai Chhotabhai Patel and others, 2020 1 GLH 261;
(10) Bankey Bihari Vs. Surya Narain Alias Munnoo, 2004 (11) SCC 393;
(11) Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa Amabadas Bukate, AIR 1997 SC 998;
Page 31 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022C/SA/365/2019 JUDGMENT DATED: 23/09/2022 (12) Sita Ram Bhama Vs. Ramvatar Bhama, 2018 (15) SCC 130;
(13) Krishnaji Anajee Bhute Vs. Ana Dhondajee and others, ILR 1929 Bombay 4;
7. Mr.Thakore, learned senior counsel for Ms.Jani, learned counsel appearing for the respondent - original plaintiff. He submitted that Trial Courts below have not committed any error while passing the impugned orders. He submitted that Chhotabhai Amthabhai Patel died in the year 1950, Jibaben Wd/o.
Chhotabhai Patel died in the year 1961 and their legal heirs are Khushalbhai - original plaintiff and Bhikhabhai - original defendant. He submitted that the present appeal is against the concurrent findings recorded by both the Courts and when the Courts below have, after appreciating the oral as well as documentary evidence and after considering the arguments advanced by all the parties passed the orders and, therefore, this Court cannot go into the question of facts arising in the matter and interference with such findings of facts is impermissible or re-appreciation of the evidence and the present appeal is not required to be entertained and called for any interference. He Page 32 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 submitted that Lambha Lekh is not a document effecting partition, but is a document merely recording the oral partition which had taken place between the parties; the law in this issue is well settled only a document effecting partition is mandatorily registerable under Section 17 of the Registration Act 1908 and since Lambha Lekh is not mandatorily registerable, the bar under Section 49 of the Registration Act, 1908 would not come into play. Learned senior counsel pointed out that on existence and execution of Lambha Lekh of 1950 affected in the year 1982 and even the defendant also contended before the concerned Trial Court that when considering the adverse possession, he became the owner of the parcel of land by virtue of the adverse possession as he is cultivating the land since 1950-1952. He submitted that the defendants have not challenged the same before any of the authority and it is hit the provisions of the limitation and barred by law of limitation. He submitted that the contention with regard to the suit was barred by law of limitation, the Trial Court has rightly dealt with the said contention in issue no.3 and issue no.4. He submitted that the family settlement arrived at in 1950 and it put into force in 1982 and since the Page 33 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 defendants have forcefully dispossessed the plaintiff from the parcel of land, he filed the suit in the year 1982 and prayed for the partition taken place in the year 1950 and the Trial Court has rightly appreciated and dealt with in issue no.3 and issue no.4.
He also submitted that the first Appellate Court has, while recording the concurrent findings in with the judgment and decree of the Trial Court, rightly dealt with the evidence in its true and proper spirit as observed in paragraph no.28 of the judgment and order and, therefore, no interference is called for.
7.1 Mr.Thakore, learned senior counsel appearing for the respondents has relied upon the following decisions:-
(1) Gurnam Singh and others Vs. Lehna Singh, (2019) 7 SCC 641;
(2) Syeda Commissioner of Income Tax Vs. Cynamid India Limited reported in (1999) 3 SCC 727;
(3) Rahimunnisa Vs. Malan BI and another, (2016) 10 SCC 315;
(4) Panchugopal Barua and others Vs. Umesh Chandra Goswami and others, (1997) 4 SCC 713;
(5) Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, (1999) 3 SCC 722;
(6) Roshan Singh and others Vs. Zile Singh and others reported in AIR 1988 SC 881;Page 34 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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8. It is worthwhile referred to the decisions relied upon by learned counsel appearing for the respective parties.
9. In the case of Ramabhai Shamalbhai Patel (supra), this Court (Coram: Hon'ble Mr.Justice N. V. Anjaria) has observed in paragraphs no.2 and 7.3 as under:-
"2. At the time of admission of this Appeal, the following substantial questions of law were formulated.
(i) Whether on the facts and circumstances of the case, Section 8 of the Limitation Act would override the provisions of Sections 6 and 7 thereof?
(ii) Whether the limitation for the plaintiff's Suit would be governed by Article 110 of the Limitation Act?
(iii) Whether on the facts and circumstances of the case, even if the Suit is otherwise time barred the reliefs sought by the plaintiff in respect of his share in the property of Ravjibhai-defendant No.1, who died pending the Appeal, would not be time barred?
7.3 The contention that there is no limitation for partition suit thus rests here being without any substance. In this case as the cause of action accrued in the year 1968, the plaintiffs' partition suit was subjected to three years period Page 35 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 of limitation under Article 113 of the Limitation Act and Section 6 read with Section 8 of the Limitation Act would apply."
10. In the case of Krishna Pillai Rajasekharam Nair (supra), the Hon'ble Supreme Court has observed in paragraph no.22 as under:-
"22. In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is - when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the right of the redeeming co- mortgagor would be to resist the claim of non-redeeming co- mortgagor by pleading his right of contribution and not to part with the property unless the non-redeeming co-mortgagor had discharged his duty to make contribution. This equitable defence taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for contribution filed by the non-redeeming co- mortgagor."
11. In the case of Raghunath Das (supra), the Apex Court Page 36 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 has observed in paragraph no.9 as under:-
"9. We are unable to accept the decision of the High Court as correct. The High Court overlooked the fact that so far as the G. P. Notes were concerned the decree upon the award only declared the rights of the parties. Under the decree Raghunath Das was entitled to have G. P. Notes of the value of Rs. 13,200 endorsed in the names of himself and Mst. Daropadi out of the G. P. Notes of the value of Rs. 26,500. The award or the decree thereon did not actually divide the G. P. Notes by specifying which particular G. P. Notes were to be endorsed in the names of Gokul Chand and Mst. Daropadi or which of them were to be endorsed in the names of Raghunath Das and his mother. Until the G. P. Notes were actually divided, either by consent of parties or by the decree of the court, neither of the brothers could claim any particular piece of G. P. Notes as his separate property or ask for delivery of any particular C. P. Notes in specie. Gokul Chand not being agreeable to come to an amicable division of the G. P. Notes, Raghunath Das had perforce to seek the assistance of the court and pray that the entire lot of C. P. Notes of the value of Rs. 26,500 be divided by or under the directions of the court into two lots and one lot making up the value of Rs. 13,200 be endorsed in favour of him (Raghunath Das) and his mother by or on behalf of Gokul Chand and then delivered to him, the plaintiff. He could not in his plaint claim that particular pieces of G. P. Notes making up the value of Rs. 13,200 be delivered to him in specie. This being the true position, as we conceive it, Raghunath Das's suit cannot possibly be Page 37 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 regarded as a suit for a " specific moveable property ".
That expression is apt only to cover a suit wherein the plaintiff can allege that he is entitled to certain specific moveable property and/or of which he is presently entitled to possession in specie and which the defendant has wrongfully taken from him and/or is illegally withholding from him. That is not the position here. It should be remembered that the two brothers were entitled to the G. P. Notes of the value of Rs. 26,500 originally as joint coparceners and thereafter, when the decree upon the award had been passed, as tenants- in-common. Until actual partition by consent of the parties or by court Gokul Chand, who held the custody of the G. P. Notes, could not be said to have taken them wrongfully from Raghunath Das and his possession of them could not be said to be or to have become unlawful. These considerations clearly distinguish this case from the case of Gopal Chandra Bose v. Surendra Nath Dutt on which the High Court relied because in that case the defendant had no right to or interest in the G. P. Notes in question and had no right to retain possession thereof. Therefore, to the present situation the terminus a quo specified in the third column of Art. 49 can have no application. It is now well established that a suit by an heir against other heirs to recover his share of the moveable estate of a deceased person is not one for (1) (1908) XII C. W. N. 1010 specific moveable property wrongfully taken such as is contemplated by Art 49, but is governed by Art. 120. See Mohomed Riasat Ali v. Mussumat Hasin Banu (1). The only difference between the facts of that case and those of the present case is that here the rights of the parties had been Page 38 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 declared by the decree upon the award but that circumstance does not appear to us to make any material difference in the application of the principle laid down by the Judicial Committee. The substance of the plaintiff's claims in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated. In short such a suit is nothing but a suit for partition or division of the moveable properties held jointly or as tenants-in-common by the parties and there being no specific Article applicable to such a suit it must be governed by Art. 120.
12. In the case of Saraswatiben Kantilal Patel (supra), this Court (Coram: Hon'ble Ms.Justice Harsha Devani) has observed in paragraphs no.23 and 26 as under:-
"23. Thus, the Limitation Act does not prescribe any period of limitation for a suit for partition. The Supreme Court in the case of Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai (supra) was of the opinion that the suit filed in the said case being a suit for partition, the limitation for the suit would be governed by Article 120 of the Limitation Act, 1908. For a suit for partition, the starting point of limitation is - when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. Therefore, Article 110 of the Schedule to the Limitation Act, 1963 which prescribes the period of limitation in case of a suit by a person excluded from a joint family property to enforce a right to share therein Page 39 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 would not be applicable to a suit for partition. In the light of the above decision of the Supreme Court, the applicable provision would be Article 113 of the Schedule to the Limitation Act, 1963 which corresponds to Article 120 of the Limitation Act, 1908 and provides for a limitation of three years from the date when the right to sue accrues. Accordingly, in the case at hand, the limitation would start running from the date of the plaintiffs' knowledge of denial of entitlement to partition.
26. 26. As discussed hereinabove, the limitation in the present case for instituting a suit for partition would be three years from the date of knowledge of the plaintiffs of denial of their entitlement to partition, which may be taken to be the date of filing of the present suit. As noticed earlier, the suit was instituted in the year 2008 whereas the application under rule 17 of Order VI of the Code was filed on or about 28th July, 2014, that is, after a period of more than five years. Testing the facts of the present case in the light of the law laid down by the Supreme Court in Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai (supra), the amendment application which has been filed after a period of more than five years from the date of the plaintiffs' knowledge of the denial of their entitlement to partition, is clearly barred by limitation. In Revejeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84, the Supreme Court has inter alia held that as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by the limitation on the date of application."Page 40 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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13. In the case of Illoth Valappil Ambunhi (supra), the Apex Court has observed in paragraphs no.14, 21 to 27 as under:-
"14. It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 CPC.
"21. The High Court further held: (Chuzhali raman Karnavan v. Illoth Valappil Ambunhi, 2009 SCC Online Ker 6802 para 8)
8. In the decisions relied on by the learned counsel for the respondent it has been held that there cannot be a presumption regarding acceptance of the gift, be it not onerous and that there must be some evidence to show that the gift was accepted during the life time of the donor but, what is stated in those decision is concerning the presumption as to the acceptance of the gift. But when the document itself recited that the possession of the property was given to the donee, then, a presumption of acceptance of gift would arise in favour of the donee.
22. The proposition of law that when the document of transfer by gift records delivery of possession, a presumption of acceptance would arise, in the absence of overt repudiation of the gift, by and/or on behalf of the donee, is unexceptionable. As held by the High Court, when the deed itself said that the possession of the property was given to the donee, the burden of proving, Page 41 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 that the said recital was not correct, lay on the party who asserted so. In our view, the law has correctly been appreciated and enunciated by the High Court.
23. The High Court took note of the recital to the effect that Karnavan (Malingan Chuzhali Ashari) acting on behalf of the Bhandaram was to enjoy the property from the date of the gift, which was strong evidence of transfer of possession.
24. The High Court rightly found that there was no direction in the gift deed which made the gift onerous as understood in Section 127 of the Transfer of Property Act. In all fairness to the appellants, this has not even been argued before the High court. The gift not being onerous, there was no reason why Malingan Chuzhali Ashari should not have accepted the gift on behalf of the Bhandaram.
25. The High Court held: (Chuzhali raman Karnavan v. Illoth Valappil Ambunhi, 2009 SCC Online Ker 6802 para 6)
6.......It is indisputable that an idol is to be treated as a minor for all legal purposes. Hence, the acceptance of the gift as per Ext. A1 could be by any person on behalf of the donee. It is not disputed that Malingan Chuzhali Ashari was the Karnavan of the Tharawad during the time of Ext.A1 and that along with Malingan Chuzhali Ashari, the donor (Raman Aithan Ashari) was also a trustee of the Bhandaram.
26. As noted by the High Court, there is no dispute that Page 42 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Malingan Chuzhali Ashari and the donor Raman were trustees of the Bhandaram (donee) at the time of execution of deed of gift. The fact that nothing was done by Raman or any other trustee of the Bhandaram to repudiate the gift in itself shows that the deed of gift was duly accepted by the Bhandaran.
27. The High Court rightly held that the Courts below had proceeded on the wrong assumption that even in spite of the recitals in Exh. A1, being the deed of gift and the admitted facts of the case, the burden of proof was on the respondents to show that the gift had been accepted. The findings of the Trial Courts and the First Appellate Court were based on a wrong assumption of law regarding the possession of an idol in the eye of law and the relevant recitals in Exh. A1 (deed of gift)."
14. In the case of Uma Pandey (supra), the Apex Court has observed in paragraph no.12 to 18 as under:-
"12. In our considered opinion, the High Court erred in dismissing the second appeal in limine on the ground that it did not involve any substantial question(s) of law.
13. In our view, the appeal did involve substantial question(s) of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') and, therefore, it should have been admitted for final hearing on the substantial question(s) of law arising in the case.Page 43 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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14. It is not in dispute that the defendants (respondents) filed one document(EX-A)-(Annexure-P-1 of SLP). This document was relied on and appreciated by the two Courts below for deciding the rights of the parties. The Trial Court decreed the suit and the First Appellate Court reversed it on appreciating the evidence including EX-A.
15. It is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the Lis constitutes a substantial question(s) of law within the meaning of Section 100 of the Code.
16. Whenever such question arises in the second appeal at the instance of the appellant, it deserves admission on framing appropriate substantial question(s) on such questions to enable the High Court to decide the appeal on merits bi-party.
17. In this case, it was all the more reason for the High Court to have admitted the appellants' second appeal because the Trial Court and the First Appellate Court had taken into consideration the document - Ex-A for deciding the Lis involved in the case.
18. In the light of the foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the High Court as, in our view, it wrongly dismissed appellants' second appeal in limine."Page 44 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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15. In the case of Abdul Raheem (supra), the Apex Court has observed in paragraphs no.10 to 12 as under:-
"10. A substantial question of law ordinarily would not arise from the finding of facts arrived at by the trial court and the first appellate court. The High Court's jurisdiction in terms of Section 100 of the Code is undoubtedly limited.
11. The question as to whether the plaintiff was ready and willing to perform its part of contract by itself may not give rise to a substantial question of law. Substantial question of law should admittedly be formulated relying on or on the basis of findings of fact arrived at by the trial court and the first appellate court.
12. However, there cannot be any doubt whatsoever that consideration of irrelevant fact and non-consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the first appellate court ignoring vital documents may also lead to a substantial question of law. In vidhyadhar v. Manikrao, (1999) 3 SCC 573 this court held: 9SCC p.586, para 23) "23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."Page 45 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
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16. In the case of Patel Ramanbhai Mathurbhai (supra), the Apex Court has observed in paragraphs no.27 to 37 as under:-
"27. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law.
28. In State Bank of India & Ors. v. S. N. Goyal, 2008 Air (SC) 2594, the Supreme Court explained the terms "substantial question of law" and observed as under:
"The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ....... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case"
Similarly, in Sir Chunilal V. Mehta & Sons Ltd. V. Century Spinning and Manufacturing Co. Ltd., 1962 AIR (SC) 1314, Page 46 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 this Court for the purpose of determining the issue held:
"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties.."
29. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, 2011 1 SCC 673, this Court held that, a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all state and impelling necessity of avoiding prolongation in the life of any lis." (See also:
Rajeshwari v. Puran Indoria, 2005 7 SCC 60).
30. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial Page 47 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law". Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:"
"A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. As answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide: Salmond, on Jurisprudence, 12th Edn. Page 69, cited in Gadakh Yashwantrao Kankarao v. E. V. Alias balasaheb Vikhe Patil & ors., 1994 AIR (SC) 678)."
31. In Smt. Bibhabati Devi v. Ramendra Narayan Roy & Ors. [AIR 1947 PC 19], the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing as under:
".....that miscarriage of justice means such a departure Page 48 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word 'judicial procedure' at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law.
'That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The question of the value of evidence is not sufficient reason for departure from the practice......"
32. In Suwalal Chhogalal v. Commissioner of Income Tax [(1949) 17 ITR 269], the Supreme Court held as under:
" A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient evidence."
33. In Oriental Investment Company Ltd. v. Commissioner of Income Tax, Bombay [AIR 1957 SC 852], the Supreme Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras [AIR 1957 SC 49], and held that where the question of decision is whether Page 49 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a "mixed question of law and fact" and that a finding of fact without evidence to support it or if based on relevant or irrelevant matters, is not unassailable.
34. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740).
35. In Jai Singh v. Shakuntala [AIR 2002 SC 1428], the Supreme Court held that it is permissible to interfere even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can thus Page 50 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection." Similar view has been taken in the case of Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749.
36. Declaration of relief is always discretionary. If the discretion is not exercised by the lower court "in the spirit of the statute or fairly or honestly or according to the rules of reason and justice", the order passed by the lower court can be reversed by the superior court. (See: Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747).
37. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the Page 51 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 appeal.
17. In the case of Gurnam Singh (supra), the Apex Court has observed in paragraphs no.14 an 15 as under:-
"14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :
Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.
15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re appreciating the evidence on record in the second appeal Page 52 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re-appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC.
Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC."
18. In the case of Syeda Rahimunnisa (supra), the Apex Court has observed in paragraphs no.25 to 28 as under:-
"25. A three-judge Bench of this Court in the case of Santosh Hazari v. Purushottam Tiwari speaking through R.C. Lahoti, J. (as his Lordship then was) examined the scope of Section 100 CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under:
(SCC pp.185-88) "9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and Page 53 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v.
Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722)
10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second Page 54 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.
12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC
172), the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC Page 55 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 1314) the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad 969): (Chunilal V. Mehta case, AIR p. 1318 para 5)
5....when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."
And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (AIR p. 1318, para 6)
6....The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be Page 56 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis".
26. Again in the case of Thiagarajan And Others vs. Sri Venugopalaswamy B. Koil And Others reported in 2004 (5) SCC 762, a two Judge Bench of this Court in paragraphs 17, Page 57 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 24, 25 and 26 observed as under:
"17. Sub-section (5) of Section 100 CPC says that 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 a question. The proviso states 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. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law.
24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under Page 58 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 the limited scope of jurisdiction of a second appeal under Section 100 CPC.
25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.
26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible". (emphasis in original)
27. Reverting to the facts of the case at hand and keeping in view the aforesaid principles of law in mind, we find that the High Court while admitting the second appeal had formulated the following questions:
1. Whether the finding of the Court below, that the suit site on O.S.No.53/93 in S.No.35/5, Ex.C.I AI and the leased site, surrendered by P.W.6 in S.No.35/5 CI A 19 arc one and the same, is vitiated by its failure to consider the Page 59 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 admissions of D.W.I and the relevant documentary evidence, which establish that there was a sub-division of S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a Government poramboke land and the site of the defendant classified as a "Darga Burial Ground Mosque", each distinct and different from the other? Admissions of D.W. 1:
2 Whether the Court below have failed to see that Ex.A.2 (Gift deed being a thirty year old document, the presumption under Section 90 of Evidence Act applies, both with regard to execution and attestation, and as such the opinion of the trial Court that it is suspicious document, is untenable and unsustainable in law?
3. Whether the lower appellate Court erred in law in not framing proper points for consideration, on the validity of Ex.A.2 gift deed and the sub- division of suit property S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C.
and as such the Judgment of the lower appellate Court as a final Court of fact is vitiated by errors of law?
4. Whether the lower appellate Court has erred in law, in holding that Ex.A2 gift deed is invalid, because the property gifted is poramboke, when the Government itself (second defendant) has not disputed either the long possession or possessory title of the plaintiff of the suit property?
5. Whether the lower appellate Court has erred in law on the question of title, merely by adverting to Ex.A.3, Ex.A.4, Ex.A.5 - tax receipts, and the entire reasoning is Page 60 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 based on mere guess work ignoring the relevant and clinching documentary evidence?
6. Whether the finding of the lower appellate Court that P.W.6 (plaintiff's son) did not vacate the site even after the lease period of the site S.No.35/5 C1A19 of D.I is not based on any evidence except the word of D.W.2 (no witnesses wee examined) and the conclusion reached by it that the suit site in O.S.No.53/93 and the leased site are the same, is contrary to the evidence on record?
7. Whether the lower appellate Court has erred in law in its failure to consider the admission of D.W.2 himself that his father encroached into the plaintiff's site and was issued B-Memos and paid the penalty, which conclusively establishes that the two sites are different and not one and the same?
8. Whether the very approach of the lower appellate Court is essentially erroneous and its findings are liable to be set aside (Jagdish Singh v. Natthu Singh AIR 1992 S.C., 1604)?
28. In our considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court Page 61 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 for remanding of the case to the trial court for de novo trial in all the civil suits. This we say for following reasons.
19. In the case of Panchugopal Barua (supra), the Apex Court has observed in paragraphs no.7 and 8 as under:-
"7. A bare look at Section 100. Code of Civil Procedure shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the Section shows that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. The proviso presupposes that the Court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a "substantial question of law" is thus, the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100, C. P. C.
8. Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one ), not supported by the pleadings or evidence on the record and unless the appeal Page 62 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 inovles a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions. In the present case, no such question of law was formulated in the memorandum of appeal in the High Court and grounds (6) and (7) in the memorandum of the second appeal on which reliance is placed did not formulate any substantial question of law. The learned single Judge of the High Court also, as it transpires from a perusal of the Judgement under appeal, did not formulate any substantial question of law in the appeal and dealt with the second appeal, not on any substantial question of law, but treating it as if it was a first appeal, as of right, against the Judgement and decree of the subordinate Court. The intendment of the legislature in amending Section 100, Code of Civil Procedure was, thus, respected in its breach. Both the trial Court and the lower Appellate Court had decided the case only on questions of fact, on the basis of the pleadings and the evidence led by the parties before the trial Court. No pure question of law nor even a mixed question of law and fact was urged before the trial Court or the First Appellate Court by the respondent. The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor canvassed in the subordinate Courts and that too by overlooking the changes brought about in Section 100, Code of Civil Procedure by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal. To say the least, the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not to frustrate Page 63 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 it by ignoring the same.
20. In the case of Kondiba Dagadu Kadam (supra), the Apex Court has observed in paragraphs no.3 to 7 as under:-
"3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence.
4. It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed u/s. 100, Code of Civil Procedure. It has further been found in a Page 64 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314 held that :-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and Page 65 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial Page 66 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V/s. Ramakrishna Govind Morey, AIR 1976 SC 830 :
(1976 Lab IC 575) held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference."
21. In the case of Roshan Singh (supra), the Apex Court has observed in paragraph no.12 as under:-
"12. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality and therefore if parties actually divide their estate and agree to hold in severally, there is an end of the matter."Page 67 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022
C/SA/365/2019 JUDGMENT DATED: 23/09/2022
22. Let me give a fair idea about the family pedigree:
Chhotabhai Amthabhai Patel Jibaben Chhotabhai Patel (Date of Death 1950)-----------------------(Date of Death 31.01.1961) | | | | | Khushalbhai Bhikhabhai Umedbhai (Ori. Plaintiff / (Ori. Defendant Respondent herein) Appellant herein)
23. I have considered the submissions canvassed by the learned counsel appearing for the respective parties and after thoughtful consideration, first of all, the present second appeal is filed under Section 100 of the Civil Procedure Code. The requirement of Section 100 is that the memorandum of appeal shall precisely state the substantial question or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section 100. Meaning thereby unless there is substantial question involved in the present appeal or it is framed by the Page 68 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Court, the appeal cannot be entertained or heard by the High Court.
24. Considering the proviso of Section 100 is to the effect 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. It is abundantly clear that when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law. In the present appeal, learned counsel has suggested the following questions of law:
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1. Whether the Lambha Khat in question is admissible in evidence without the same being registered as required under law?
2. Whether the Courts below have materially erred in construing the documents on record, more particularly the Lambha Khat in question?
3. Whether the reliefs as granted by the Courts below could have been granted in view of the frame of the suit and the documents on record?
4. Whether the decree as passed by the Courts below without firstly adjudicating the exact shares of parties and exactly demarcating the properties in question, is in violation of the provisions of law?
5. Whether the alleged sale deed, Exh.84 is valid under law and binding to the Appellants?
6. Whether the suit of the Plaintiff is barred by law of limitation?
7. Whether the Courts below have materially erred in recording various findings on the basis of the proceedings before the Revenue authorities, without independently appreciating the evidences tendered on record?
8. Whether the Appellant can be considered to have perfected their title by adverse possession against the Respondents?
25. It is profitable to referred to the decision of the Apex Court in the case of K.Arumuga Velaiah Vs. P. R. Ramasamy and another, reported in (2022) 3 SCC 757 wherein the Apex Page 70 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 Court, while referring to its earlier decision in the case of Kale Vs. Director of Consolidation reported in (1976) 3 SCC 119, has observed in paragraphs no.33, 34, 35, 36, 44, 46 and 48 as under:-
"33. Kale and Ors. v. Deputy Director of Consolidation, is a case which had a checkered history in which a discussion on the effect and value of family arrangements entered into between the parties with a view to resolve disputes once and for all, came up for consideration. It was observed that in the case of a family settlement, usually there would be an agreement which is implied from a long course of dealing, but such an agreement would be embodied or effectuated in a deed to which the term family arrangement is applied. Such a family arrangement is not applicable to dealings between strangers but is in the context of maintaining the interest and peace of the members of the family.
34. In paragraph 10 of the said judgment, this Court has adumbrated on the essentials of a family settlement which could be usefully extracted as under: (Kale case, SCC pp. 126-27) "10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to Page 71 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) [sic (Section 17(1)(b)?] of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;
Page 72 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022C/SA/365/2019 JUDGMENT DATED: 23/09/2022 (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. (emphasis in original)
35. After reviewing several judgments of this Court, the Privy Council and other High Courts, this Court in paragraph 20 indicated the following propositions: (Kale case, SCC p. 130) "20....We would, therefore return the reference with a statement of the following general propositions:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
(3) If though it could have been made orally, it was in fact reduced to the form of a "document" registration (when the value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a document" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though Page 73 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.
36. Ultimately, this Court held that the family arrangement in the nature of a compromise which was considered in that case did not require registration. It was further held that since the existence of the family arrangement was admitted in that case, the same was binding on the principle of estoppel. Also, even if the family arrangement could not be registered it could be used for collateral purpose, i.e. to show the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties, who, having taken benefit under the settlement for seven years, later tried to resile from the settlement.
44. For a better understanding of the same it would be useful to refer to section 17 (1) (e) and 17 (2) (v) as under:
17. Documents of which registration is compulsory. (l) The following documents shall be registered, if the property to Page 74 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
* * *
(b) other non testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
* * *
(2) Nothing in clauses (b) and (c) of sub section (l)
applies to:
(v) any document other than the documents specified in
sub section (1-A) not itself creating,
declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest."
46. In the instant case exhibit B 13 award is more in the Page 75 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 nature of a memorandum of understanding, a mere agreement of the steps to be taken in future for the division of the properties. Hence, the said document did not require registration under Section 17 (1) (b) of the Act as under the said document no creation of rights in any specific joint family property was effected. Hence the second limb of the contention of the appellant is accordingly answered.
48. In our view, Ext. B-13 did not require registration.
26. It is profitable to referred to the decision of the Apex Court in the case Kashmir Singh Vs. Harnam Singh reported in (2008) 12 SCC 786 wherein the Apex Court has observed in paragraphs no.9, 10, 11, 12, 13 and 15 as under:-
"9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed u/s. 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section Page 76 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 held that :
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
10. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not Page 77 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
11. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V/s. Ramkrishna Govind Morey, 1976 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.(See: Kondiba Dogadu Kadam V/s. Savitribai Sopan Gujar and Others, 1999 3 SCC
722).
12. The phrase "substantial question of law", as occurring in the amended Sec. 100 is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important Page 78 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Art. 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta V/s. T. Ram Ditta, AIR 1928 PC 172, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Sec. 100 (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao V/s. Noony Veeraju, AIR 1951 Mad 969:
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."
13. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial as quoted in Sir Chunilal's case (supra).
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15. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari V/s. Purushottam Tiwari (deceased) by Lrs., 2001 3 SCC 179).
27. Considering the questions suggested by the learned counsel appearing for the appellants, it does not require any further hearing or re-determination. The question is practically covered by the decision of the highest court and/or there is no further determination of any of the questions suggested by the learned counsel is required. Considering the test which is enumerated by the Hon'ble Apex Court in Sir Chunilal's case Page 80 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 (supra) for determining whether a question of law raised in a given case is substantial question. The substantial question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
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28. The principles relating to Section 100 relevant for this case may be summarized thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a Page 82 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 material question, violates the settled position of law.
29. Therefore, in the general rule, High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
30. In view of the aforesaid settled principles, it appears that the both the Courts below have not committed any error either on facts or on law. As per the decision of the Apex Court in the case of Gurnam Singh (supra), framing of substantial question of law is a sine qua non for the exercise of the jurisdiction under Section 100 of the Code. Considering the issue involved in the present appeal and the contentions raised on the basis of the Page 83 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 factual aspects of the matter, this Court not thought it fit to enter into the factual aspects which does not involved any substantial question of law. It is also relevant to note here that the re-
appreciation of the evidence is impermissible by this court while exercising the jurisdiction under Section 100 of the Code.
31. Considering all the contentions raised in the appeal, this Court has no hesitation to show that in the present appeal no substantial question is involved as the question suggested by the appellants with regard to more or less re-appreciation of the evidence recorded by the Trial Court which is permissible under the jurisdiction of Section 100 of the Code.
32. Considering the facts and circumstances of the case, submissions canvassed by the learned counsel for the respective parties and the decisions cited at the Bar, I find no reason to entertain the present appeal.
33. For the foregoing reasons, the appeal fails and it is accordingly dismissed. The Trial Court shall direct to implement the impugned judgment and decree in its true spirit and hand Page 84 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022 C/SA/365/2019 JUDGMENT DATED: 23/09/2022 over the possession to the original plaintiffs within three months from the date of receipt of the copy of the order, if it is not handed over by the defendants by metes and bounds.
34. In view of the disposal of the main appeal, connected civil applications shall stand disposed of. Interim relief, if any, granted earlier shall stand vacated forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) FURTHER ORDER After pronouncement of the judgment, the learned counsel appearing for the appellants has requested to stay the implementation and operation of the judgment. However, it seems that the stay is operating since 1982 and they are fighting for the cause and, therefore, the request made by learned counsel appearing for the appellants is not just and proper.
Hence, the request is not accepted.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 85 of 85 Downloaded on : Fri Sep 30 20:01:03 IST 2022