Gujarat High Court
Bharatbhai Babubhai Patel vs Patel Rajnikant Maganbhai on 22 March, 2024
NEUTRAL CITATION
C/SA/295/2016 ORDER DATED: 22/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 295 of 2016
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BHARATBHAI BABUBHAI PATEL & ANR.
Versus
PATEL RAJNIKANT MAGANBHAI & ORS.
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Appearance:
MR HARSH N PAREKH(6951) for the Appellant(s) No. 1
PRIYAL M PARIKH(7593) for the Appellant(s) No. 1
MR JIGAR M PATEL(3841) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/03/2024
ORAL ORDER
1. This appeal, under Section 100 of the Code of Civil Procedure, 1908, at the hands of the the appellants - original plaintiffs, arises from the impugned judgment and decree dated 09.05.2016 passed by the learned 4 th (Ad-hoc) Additional District Judge, Anand in Regular Civil Appeal No.35 of 2012, confirming the judgment and decree dated 09.05.2012 passed by the learned 2 nd Additional Senior Civil Judge, Anand in Regular Civil Suit No.75 of 1996 dismissing the same.
2. The brief facts of the present case are as under :
2.1 The suit is filed by the plaintiffs for partition and Page 1 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined mesne profit qua the agriculture lands in question, which are the ancestral lands.
2.2 After the demise of great-grandfather - Nagarbhai in the year 1962, as per the oral partition, the lands were divided into the heirs.
2.3 The plaintiffs, who happens to be the great-
grandchildren of deceased Nagarbhai filed a suit in the year 1996 seeking partition and mesne profit in all the shares i.e. of them as well of the defendants. The defendants are the uncles of the plaintiffs.
2.4 The suit is dismissed by the learned trial Court on merits.
2.5 The appeal is preferred by the original plaintiffs, which is also dismissed and thereby confirmed the judgment and decree passed by the learned trial Court. 2.6 It is these judgments and decrees, which are challenged by the appellant - original plaintiffs, before this Court in this second appeal.
3. Heard learned advocates.
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NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined 4.1 Learned advocate Ms.Priyal M. Parikh for the appellants has submitted that the learned trial Court has failed to establish that only for the sake of convenience and on the basis of a family arrangement, revenue Survey Nos.791/1, 1482 and 36 out of the subject lands were being cultivated by the respondents and revenue Survey Nos.799/2 and 800 were being cultivated by the appellants - original plaintiffs. She has further submitted that the learned trial Court has failed to appreciate that the subject lands are the ancestral lands.
4.2 She has also submitted that the learned lower Courts have failed to appreciate that the respondents have failed to produce any evidence to show that the subject- property has been partitioned despite specifically called upon by the appellants' notice dated 25.07.1996. She has further submitted that there is no mutation entry evidencing any partition between the parties.
4.3 She has further submitted that the learned lower Courts have wrongly appreciated the appellants' cross- examination at Exh.95 as if to mean an admission that after the appellant No.1's father got married, he had separated from his uncle. She has submitted that mere separation after marriage is wrongly taken to mean that the subject landsx Page 3 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined are partitioned. She has submitted that the lower Courts have erred in inferring that the cultivation of lands through different water-channels and separate payment of cess of such subject lands mean partition between the parties. She has submitted that it was merely a 'family arrangement' for the sake of avoiding disputes in agricultural activities and not a 'partition' by any means.
4.4 She has also submitted that the lower Courts have not at all appreciated the evidence at Exh.123 by simply brushing it aside on the ground that the witness has merely come to the Court to depose in the appellants' favour. 4.5 In support of her submissions, she has relied upon the following decisions :
(i) 2019 (0) AIJEL-SC 64612 - State of Rajasthan versus Shiv Dayal
(ii) (2007) 4 SCC 163 - Chinthamani Ammal versus Nandagopal Counder
(iii) [2008 (5) Mh.L.J. 680 - Mahadu Appa Wanjole versus Laxman Veerappa Wnajole
(iv) 2011 SCC OnLine Cal. 4295 - Debendra Nath Bez versus Shrimati Kanan Bez 4.6 She has submitted this appeal may be allowed. Page 4 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024
NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined She has suggested the following substantial questions of law for determination of this Court.
(i) Whether the Hon'ble Trial Court has committed an error of law by not framing issues till after the evidence was completely led by both the parties.
(ii) Whether the Hon'ble First Appellate Court
has committed an error of law by
disregarding the difference between 'partition' and 'family arrangement'.
(iii) Whether the Hon'ble First Appellate Court has committed an error of law by disregarding the ancestral-genealogy and the fact that the appellants are entitled to 1/3 part of the ancestral property.
(iv) Whether the Hon'ble First Appellate Court has committed an error law by disregarding the existence or in-existence of mutation entries for the purpose of partition in the revenue record.
(v) Whether the Hon'ble First Appellate Court
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NEUTRAL CITATION
C/SA/295/2016 ORDER DATED: 22/03/2024
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has committed an error of law by
disregarding the factum and submissions
about the existence or in-existence of a
'Registered partition Deed' between the
parties.
(vi) Whether the Hon'ble First Appellate Court
has committed an error of law by ignoring the provisions of the Indian Registration Act vis-a-vis Transfer of Property Act which mandates registration of any deed amounting to 'transfer'.
(vii) Whether the Hon'ble First Appellate Court has committed an error of law by ignoring the provisions of the Code of Civil Procedure by not framing the points of determination as per the requirement of law, and by merely framing a vague point without meeting the true spirit of Section 103 of the Code.
(viii) Whether the Hon'ble Lower Courts have
committed an error of law in not
appreciating the documentary as well as oral Page 6 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined evidence.
(ix) Whether the Hon'ble First Appellate Court has erred by not allowing the appellant's first appeal.
5.1 Per contra, learned advocate Mr. Jigar M. Patel for respondent No.1 has submitted that both the learned Courts below have, after considering the evidence on record, rightly passed the impugned judgments. He has further submitted that after the demise of great-grandfather of the parties viz., Nagarbhai, the lands in question, which are agriculture lands, partitioned by oral agreement between the family members at the relevant point of time and since then, the lands in question are cultivating by the parties. He has submitted that no one has raised any grievance regarding the said partition.
5.2 He has also submitted that the father of the plaintiffs viz., Babubhai Maganbhai has not raised any grievance before any forum/authority during his lifetime. He has submitted that it is the plaintiffs i.e. children of Babubhai, who have raised dispute regarding partition, that too after a period of almost three decades. 5.3 He has further submitted that the plaintiff No.1 Page 7 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined himself has admitted in his cross-examination that his father got separated from the family and the lands which are in possession of the defendants, are never in possession of the plaintiffs. He has submitted that the defendants have never claimed any right, title or interest and possession over the lands which possess by the plaintiffs by way of that family arrangement.
5.4 In support of his submissions, he has relied upon the following decisions :
(i) (2003) 10 SCC 310 - D.S. Lakshmaiah versus L. Balasubramanyam
(ii) (2007) 1 SCC 546 - Gurdev Kaur versus Kaki
(iii) (2014) 4 SCC 707 - Kesharbai @ Pushpabai Eknathrao Nalawade (D) by Lrs., versus Tarabai Prabhakarrao Nalawade 5.5 He has submitted that this appeal may be dismissed.
6.1 I have heard rival submissions made at the bar. I have considered the various documents available on record. I have perused the impugned judgments and decrees passed by both the learned Courts below.
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NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined 6.2 From the record, the following undisputed facts are emerged :
The dispute is between the branches of deceased Maganbhai Nagarbhai, who died during the life time of his father - Nagarbhai. Nagarbhai has died on 28.12.1962. Who happens to be the great-grandfather of the original plaintiffs.
Deceased Maganbhai has four children viz., Babubhai, Rajnikantbhai, Dhirubhai and Dahiben. The branches of Babubhai - Bharatbhai and Maniben are the original plaintiffs, whereas the other uncles and aunt are the original defendants. The lands in question are the agriculture lands.
After the demise of great-grandfather - Nagarbhai i.e. after 28.12.1962, the ancestral lands were divided amongst the branches of deceased Maganbhai, who happens to be the grandfather of the plaintiffs and father of the defendants. There is no dispute amongst the branches of Jesingbhai before this Court.
Since the year 1962, the ancestral lands are Page 9 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined orally divided into the branches of deceased Maganbhai and are possessing by them since then. According to their oral partition after the year 1962, lands bearing Survey No.791/1, 1482 and 36 go in the share of the defendants, whereas lands bearing Survey No.799/2 and 800 go in the share of the father of the plaintiffs viz., Babubhai. Thus, from the year 1962 till 1996 i.e. from the death of their great-grandfather till the institution of the suit, there was no dispute between the parties, qua the lands in question. The father of the plaintiffs - Babubhai, who happened to be the real brother of the defendants, have not challenged the said oral partition. It is the plaintiffs who have challenged the oral partition after about more than three decades. The plaintiffs have not asked for partition for all ancestral properties.
The learned trial Court has rejected the suit, which was confirmed by the learned appellate Court below.
Hence, there are concurrent findings by both the learned Courts below.
6.3 Further, it transpires from the record that the Page 10 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined learned trial Court has observed that the lands in question got partitioned by way of oral agreement after the demise of their great-grandfather - Nagarbhai before many years.
Further, the learned trial Court has also observed that since then, the parties are cultivating the lands in question, and that the parties are paying the revenue cess separately for the lands in question, and that they are taking the profit separately since then, and that they are in possession of the lands in question separately. These facts have been admitted by the plaintiff/s in his cross-examination. Further, the neighbour, who was examined at Exh.123, clearly supports the aspect of partition of lands amongst family. Further, the village form No.6 produced at Exh.130 clearly indicates about partition.
6.4 Further, it also transpires from the record that the learned appellate Court below has also observed that the revenue records have a presumptive value only and it can be rebut by leading evidence and therefore, the revenue record does not support the case of the plaintiffs. Further, the learned appellate Court below has observed that the parties cultivate the lands separately since the year 1972. The learned appellate Court below have also observed that since the parties are cultivating the lands separately, received crop and profit separately, paying revenue cess separately and Page 11 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined these are the admitted facts, which clearly established that the partition for the suit lands is taken place between the parties around the year 1972 and the respondents have successfully rebutted the evidence of revenue records. 6.5 The learned appellate Court below has observed that the plaintiffs have suppressed the material facts about their lands which have come in their share i.e. Survey No.279 during this family arrangement. 6.6 The learned appellate Court below has confirmed the judgment passed by the learned trial Court, on merit, after considering the various evidence on record.
7. Though it is not in dispute that the revenue record does not reflect any partition, but it is a matter of fact that on the basis of the family arrangement, the lands in question got partitioned since long and the parties are in possession of the respective lands, and they have not raised any dispute qua the partition for many years. Further, the partition is already done between the parties way back in and around the year 1972.
8. At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Kesharbai @ Pushpabai Eknathrao Nalawade (D) by Lrs., versus Tarabai Page 12 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined Prabhakarrao Nalawade reported in (2014) 4 SCC 707, more particularly paras : 21 & 22 thereof, which read as under :
" 21. In our opinion, the aforesaid presumption is wrong in law in view of the fact that the High Court has affirmed the findings of the trial court that in 1985, there was a complete partition and the parties had acted on the same. It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this court in a number of cases. We may notice here the judgment of this Court in Bhagwati Prasad Sah & Ors. V/s. Dulhin Rameshwari Kuer & Anr., Page 13 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined [1951] 2 SCR 603, wherein it was inter alia observed as under:
"8. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon Page 14 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief."
This principle has been reiterated by this Court in Addagada Raghavamma & Anr. V/s. Addagada Chenchamma & Anr., AIR 1964 SC 136.
22. In this case, the trial court as well as the High Court has held that there was a complete partition in the year 1985. Therefore, the presumption would be that there was complete partition of all the properties. Consequently, the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property. Therefore, in our opinion, the High Court clearly committed an error in placing the burden of proof on the petitioners, who were Page 15 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined defendants in the suit to prove that the Nageshwarwadi property at Aurangabad was a self-acquired property of Eknathrao."
9. It is also fruitful to refer to the decision of the Hon'ble Apex Court in the case of D.S. Lakshmaiah versus L.Balasubramanyam reported in (2003) 10 SCC 310, more particularly paras : 7 and 18 thereof, which read as under :
" 7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove Page 16 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined that he purchased the property with his own funds and not out of joint family nucleus that was available."
10. It is further fruitful to refer to the decision of the Hon'ble Apex Court in the case of Gurdev Kaur versus Kaki reported in (2007) 1 SCC 546, more particularly paras : 47, 48, 50 and 51 thereof, which read as under :
" 47. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference u/s. 100 of the Code of Civil Procedure by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts.
48. Now, after 1976 Amendment, the scope of Sec. 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering u/s. 100 of the Code of Civil Procedure only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the Page 17 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was :
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;Page 18 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024
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(iv) Another part of the Section is that the appeal shall be heard only on that question.
50. When Sec. 100 of the Code of Civil Procedure is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
51. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Sec. 100."
11. At this stage, it would also be fruitful to refer to the provisions of Section 100 of the Code of Civil Procedure, 1908, which reads as under:
"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code Page 19 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."Page 20 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024
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12. It is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Online SC 875, more particularly paragraphs 7, 14 and 15 thereof, which read as under :
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section
100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta Page 21 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC 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 Page 22 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined 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. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law"
as it was employed in the last clause of the then existing Section 100 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. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v.Page 23 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024
NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 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 [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], 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 Page 24 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined 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.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has Page 25 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of Page 26 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024 NEUTRAL CITATION C/SA/295/2016 ORDER DATED: 22/03/2024 undefined the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."
13. Looking to the undisputed facts and the circumstances of the case as well as from the bare perusal of the impugned judgments and decrees passed by both the learned Courts below and the ratio laid down by the Hon'ble Apex Court as noted above, no any question much less any substantial question of law is involved in the present second appeal. Further, this Court does not find any perversity or illegality committed by both the learned Courts below in the impugned judgments. This appeal therefore needs to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) M.H. DAVE Page 27 of 27 Downloaded on : Wed Mar 27 20:36:01 IST 2024