Himachal Pradesh High Court
Present Employee In Dav School vs State Of Maharashtra} on 8 July, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF JULY, 2022
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
REGULAR SECOND APPEAL No. 617 OF 2014
Between :-
SMT. HIRA DEVI, DAUGHTER OF SHRI CHET
RAM, RESIDENT OF VILLAGE CHHATERA, AT
PRESENT EMPLOYEE IN DAV SCHOOL, SUNNY
SOLAN, TEHSIL AND DISTRICT SOLAN, H.P.
...APPELLANT
(BY MR. SUDHIR THAKUR, SENIOR ADVOCATE
WITH MR. KARUN NEGI, ADVOCATE)
AND
1. SHRI KIRPA RAM, SON OF SHRI DAYA
RAM, RESIDENT OF VILLAGE CHAPLA,
P.O. RAURI, VIA DHARAMPUR, TEHSIL
KASAULI, DISTRICT SOLAN, H.P.
2. SMT. KAUSHALYA, WIFE OF SHRI
KISHAN LAL, RESIDENT OF VILLAGE
JABLU, P.O. BALERA, TEHSIL ARKI,
DISTRICT SOLAN, H.P.
3. SMT. PADMA, WIFE OF SHRI NAND
LAL, RESIDENT OF VILLAGE DOHRA,
P.O. BADHALAG, TEHSIL KASAULI,
DISTRICT SOLAN, H.P.
.....RESPONDENTS
(BY MR. BHUPENDER GUPTA,
SENIOR ADVOCTE,WITH MR. VEDANT
RANTA, ADVOCATE)
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2
Whether approved for reporting ? YES
________________________________________________
.
This appeal coming on for pronouncement of
judgment this day, Hon'ble Ms. Justice Jyotsna Rewal Dua,
delivered the following :
JUDGMENT
One Bhagat Ram died on 22.02.1999. Mutation No. 75 concerning his property was entered and attested on 18.01.2002 in favour of Hira Devi as widow of Bhagat Ram. Civil suit was filed by the respondents (Kirpa Ram, Kaushalya and Padma) seeking declaration that mutation No. 75 dated 18.01.2002 was wrong, illegal and void. That Hira Devi (defendant) was not widow of Bhagat Ram. She had no right, title or interest in the estate of Bhagat Ram. That the plaintiffs had succeeded to Bhagat Ram's estate on the basis of a will dated 07.02.1999 executed by him during his lifetime. Alternatively, a prayer was made that if for any reason, the will dated 07.02.1999 was held to be illegal, in that eventuality, the plaintiffs being legal representatives of Bhagat Ram are entitled to succeed to his estate in equal shares.
Learned trial Court returned the findings that will (Ex.
PW-6/B) was shrouded with suspicious circumstances. This ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 3 factual finding has been affirmed by the learned first appellate Court. No appeal concerning validity of the will has been .
preferred by the plaintiffs. Hence, findings on this issue have become final.
Regarding Hira Devi being wife of Bhagat Ram, learned trial Court held that she was widow of Bhagat Ram and entitled to succeed to his estate. Mutation No. 75 qua Bhagat Ram's inheritance, entered and attested in her favour on 18.01.2002 was legal and valid. Learned first appellate Court reversed this finding and held that defendant Hira Devi could not prove that she had solemnized marriage with Bhagat Ram after the demise of her first husband Ram Lal. Accordingly, the appeal preferred by the plaintiffs was allowed by the learned first appellate Court. The learned appellate Court held mutation No. 75, dated 18.01.2002 sanctioned in favour of the defendant to be wrong and illegal. Plaintiff No. 1 Kirpa Ram was held entitled to succeed to the suit land alongwith other class II heirs , if any existing at the time of death of Bhagat Ram. Aggrieved, defendant Hira Devi has preferred the present regular second appeal under Sectio 100 of the Civil Procedure Code.
The parties hereinafter are being referred to according to their status before the learned trial Court.
::: Downloaded on - 08/07/2022 20:03:54 :::CIS 42. This appeal was admitted on 11.05.2015 on the following substantial questions of law :-
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1) Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available available on record the findings recorded by learned lower appellate Court are erroneous and as such the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable ?
2) Whether the first appellate Court has wrongly shifted the burden to prove the alleged marriage of defendant/present appellant herein with one Ram Lal on her, whereas the same was the pleadings of the plaintiffs/present respondents herein ?
3. Contentions Whether defendant Hira Devi was lawfully married to Bhagat Ram is the central question around which learned Senior counsel for the parties advanced their submissions.
3(i) On behalf of defendant Hira Devi it was argued that it was for the plaintiffs to prove that Hira Devi was not the wife of Bhagat Ram. Plaintiffs had failed to discharge the burden placed upon them. Learned trial Court had correctly decided the issue against the plaintiffs. Learned first appellate Court had erred in law in placing the burden of proving her marriage with Bhagat Ram upon the defendant/Hira Devi. In support of such ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 5 submission, Sections 35, 50, 74, 102 and 106 of the Indian Evidence Act were pressed. Learned Senior counsel for .
defendant-appellant Hira Devi also submitted that fact of Hira Devi being wife of Bhagat Ram was proved not only by the documents placed on record but also by the oral evidence led by her. By referring to copies of electoral rolls prepared for the year 1981 and 1983 as well as copy of family register, learned Senior counsel argued that name of Hira Devi was reflected therein as wife of Bhagat Ram. Attention was also drawn to an application moved by Hira Devi under Section 125 of the Code of Criminal Procedure (Cr.P.C.) in the year 1993 claiming maintenance from Bhagat Ram as well as to the order passed thereupon by the concerned Gram Panchayat. Besides referring to the oral evidence led by Hira Devi, learned Senior counsel contended that even otherwise long cohabitation between Hira Devi and Bhagat Ram as husband and wife dispensed with the requirement of any formal proof of marriage between the two. Learned counsel prayed for acceptance of the appeal.
3(ii) Learned Senior counsel for the plaintiffs, respondents herein, contended that the appeal does not involve any substantial question of law. It only raises questions of facts.
The learned first appellate Court after appreciating the pleadings ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 6 and the evidence has exercised its jurisdiction in accordance with law and decided the case. The findings returned by the learned .
first appellate Court are not perverse. The regular second appeal preferred by defendant Hira Devi is not maintainable. It was also argued that Hira Devi in her pleadings has not denied the assertion of the plaintiff that she was married to one Ram Lal. In the pleaded facts of the case, it was for her to prove that she was lawfully married to Bhagat Ram. Therefore, no error was committed by the learned first appellate Court in holding that it was for the defendant to discharge the burden of her being lawfully married to Bhagat Ram and that she failed to discharge this burden. It was also argued that there was variation in the pleadings and the proof put forth by Hira Devi. Regarding her so called marriage with Bhagat Ram, she pleaded one thing, but tried to prove entirely a different aspect regarding mode and manner of solemnization of her marriage with Bhagat Ram. The evidence produced by her, documentary or ocular, did not corroborate her pleaded version. Learned Senior counsel for the plaintiffs/respondents prayed for dismissal of the appeal.
4. Having heard learned Senior counsel for the parties and with their assistance on going through the record, I am not ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 7 inclined to interfere with the findings recorded by the learned first appellate Court. This is for the following reasons :-
.(i) Substantial Question of Law No. 2
(i) (a) The plaintiffs/respondents in para 4 of the plaint specifically averred that :-
"Hira Devi was married to one Ram Lal of village Teli, Tehsil Kandaghat. At no point of time her marriage was solemnized with late Sh. Bhagat Ram. The defendant cannot claim the status that of a widow of late Bhagat Ram. Defendant No. 1 is not legal heir or successor of late Bhagat Ram @ Bhagat Singh and cannot succeed to his estate in any manner".
(i) (b) In reply to the above factual assertion, defendant Hira Devi in her written statement pleaded that :-
"Contents of para No. 4 of the plaint as alleged are wrong and denied. Ram Lal died long long back and after his death, the defedant's marriage was arranged by her brothers with Bhagat Singh as per custom of the village. The parties to the suit are agriculturists and Rajputs by caste and governed by the custom which is prevailing in the area till date and followed by people".
(i) (c) Learned Senior counsel for defendant Hira Devi has argued that the above defence cannot be construed to be an admission on part of Hira Devi of having solemnized a marriage ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 8 with Ram Lal. It was contended that in the above defence, the only thing that is pleaded by the defendant was that her marriage .
was solemnized with Bhagat Ram by her brothers. On the basis of this factual argument, learned Senior counsel thereafter referred to the provisions of the Indian Evidence Act, in particular Sections 35, 50, 74, 102 and 106 thereof to contend that the onus to prove her marriage with Bhagat Ram was wrongly placed by the learned first appellate Court upon the defendant.
(i) (d) I am afraid, the argument raised on behalf of the defendant cannot be countenanced. The plaintiffs had specifically pleaded in para 4 of the plaint that the defendant was married to one Ram Lal. Identity of Ram Lal was also described in the plaint as resident of village Teli, Tehsil Kandaghat. The plaintiffs had also pleaded that no marriage was ever solemnized between the defendant and Bhagat Ram. It was for the defendant to emphatically refute plaintiffs' factual assertions. In her written statement to para 4 of the plaint, defendant No. 4 pleaded that Ram Lal had died long ago and after his death, her marriage was arranged by her brothers with Bhagat Ram @ Bhagat Singh as per village customs. The defendant had not denied her marriage with Ram Lal. The only logical inference that can be drawn from para 4 of her written statement is the one drawn by the learned ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 9 first appellate Court and that being she was married to Ram Lal at one point of time. Having not denied her marriage to Ram Lal, it .
was for the defendant to prove that her marriage with Bhagat Ram was solemnized after the death of Ram Lal and that solemnization of her marriage with Bhagat Ram was in accordance with law.
(i) (e) Section 106 of the Indian Evidence Act says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws light on the content and scope of this provision and reads as under :-
"(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
{Re: (2006) 10 SCC 681 titled Trimukh Maroti Kirkan Versus State of Maharashtra} In the present case, the plaintiffs specifically pleaded that the defendant had never solemnized any marriage with Bhagat Ram and that she was rather married to one Ram Lal, resident of Village Teli. Defendant in her written statement did not dispute the fact that she was at one point of time married to Ram Lal. Her defence was that after Ram Lal's death her brothers had solemnized her marriage with Bhagat Ram. Solemnization of her marriage; solemnization of her marriage with Bhagat Ram after ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 10 the death of her first husband Ram Lal and ; solemnization of her marriage as per village customs with Bhagat Ram (as pleaded by .
her) after the death of her first husband Ram Lal, were the facts in her special knowledge.
The defendant had pleaded solemnization of marriage with Bhagat Ram after Ram Lal's death as per village custom. In view of her specific pleadings in the written statement, Section 106 of the Indian Evidence Act, 1872 comes into play.
The Section provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the nature of the stand taken by the defendant, considered in the light of Section 106 of the Indian Evidence Act, the onus definitely shifted upon the defendant to prove that she had solemnized marriage with Bhagat Ram after the death of her first husband Ram Lal as pleaded by her. The defendant had also pleaded that her marriage was solemnized with Bhagat Ram as per custom of the village. These facts were required to be proved by her by leading cogent evidence. Substantial question of law No. 2 is answered accordingly against the defendant-appellant.
The evidence produced by her be now examined to answer question of law No. 1.
(ii) Substantial Question of Law No.1 ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 11 Documentary Evidence (ii) (a) The defendant placed reliance upon copies of .
Electoral rolls prepared for the year 1981 (Ex.DW-3/A) and for the year 1983 (Ex. DW-3/B) to prove that she was wife of Bhagat Ram. In these two documents tendered in evidence by DW-3 the then Election Kanungo, the defendant has been mentioned as wife of Bhagat Ram.
The Electoral rolls Ex. DW-3/A and Ex. DW-3/B will not prove that the defendant was lawfully married to Bhagat Ram.
DW-3, Election Kanungo, during his cross examination, stated that the entries in Electoral rolls are made on the basis of oral information supplied by any adult member of the family. There was no specific evidence on record to show at whose instance these entries were made. The entries though have been made by the public servant in discharge of the public duty and are relevant in terms of Section 35 of the Indian Evidence Act, but these entries which might have been recorded on the basis of oral information supplied by any family member including the defendant herself will not prove that the defendant had solemnized a lawful marriage with Bhagat Ram after the death of her previous husband Ram Lal.
::: Downloaded on - 08/07/2022 20:03:54 :::CIS 12(ii) (b) The defendant has also placed reliance upon Ex.
DW-1/A i.e. copy of family register (Parivar register). It appears .
that in this register, initially name of the defendant was mentioned as wife of Bhagat Ram, but the same thereafter was crossed and smeared. Pushpa-the Panchayat Secretary, who appeared as PW-3, PW-4 and also as DW-1, expressed her lack of knowledge as to how and under what circumstances, the name of defendant was entered, crossed and smeared. Even this document would not advance defendant's claim of solemnizing lawful marriage with Bhagat Ram after the demise of her first husband Ram Lal.
(ii) (c) The last documentary evidence referred to on behalf of the defendant is a petition preferred by her on 02.12.1993 claiming maintenance amount of Rs. 5,000/- per month from Bhagat Ram. This petition (Ex. PW-4/A) bearing No. 78/4 of 1993 was instituted under Section 125 of the Criminal Procedure Code.
Learned Senior counsel for the defendant submitted that this was the document presented by the defendant at the time when there was no dispute between her and Bhagat Ram regarding her capacity as his wife and proves that the defendant was Bhagat Ram's wife.
The document Ex. PW-4/A i.e. the petition filed by defendant under Section 125 of the Criminal Procedure Code ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 13 claiming maintenance from Bhagat Ram leads her case nowhere insofar as the present controversy is concerned. The reply filed .
by Bhagat Ram to the petition under Section 125 of the Criminal Procedure Code is also on record as Ex. PW-4/B. This is the only document available on record which is executed by Bhagat Ram himself. In this reply, Bhagat Ram denied performing any marriage with Hira Devi. It will be appropriate to extract in verbatim his factual assertion made in para 1 of the reply on merits :- r "neither legal marriage was performed nor any marriage according to the custom in area was performed as alleged. Since there is no custom prevailed in the area regarding marriage hence the question of cohabitation does not arise. However, the respondent has parental house and a small piece of land at village Chapala. It is pertinent to mention here that the petitioner has resided at the house of the mother of the respondent for two, or three years as a domestic servant. Moreover, the petitioner is a legally married woman, which marriage took place about 26 years ago. The petitioner was married with Sh. Ram Lal, son of not known, resident of Village Sulani, Tehsil Kandaghat, Distt. Solan, H.P. about 26 years ago."
The maintenance claim case of defendant Hira Devi was decided by Gram Panchayat Dharamasan on 24.12.1999. The Panchayat in this decision ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 14 (Ex. PW-4/L) concluded that Bhagat Ram was never married with Hira Devi. She was not entitled to any maintenance from Bhagat .
Ram. She was further not held entitled to the property of Bhagat Ram. In the face of the reply filed by Bhagat Ram to the maintenance claim of defendant Hira Devi, it cannot be concluded that the defendant has been able to prove that she was lawfully married to Bhagat Ram.
Ocular evidence
(ii) (d) Learned Senior counsel for the defendant next contended that defendant has been able to prove having solemnized lawful marriage with Bhagat Ram by leading oral evidence. Reference in this regard was made to the statement of defendant as DW-4 and to that of one Ram Singh who appeared as DW-5.
The defendant had pleaded solemnizing marriage with Bhagat Ram as per village customs. There is no presumption in favour of custom. In each case, existence of custom must be proved. {Re: AIR 1917 Privy Council 181 titled Abdul Hussein Khan Vs. Mst. Bibi Sona Dero and another}.
Custom is a fact which if pleaded has to be proved in accordance with law by authoritative pronouncements or by ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 15 instances in which it had been followed or by some other clear and cogent evidence. The onus to prove a certain, invariable and .
legally binding custom lies upon a party setting up the plea of custom. {Re: 1997 (2) Sim L.C. 145, titled Smt. Lachhmi Vs. Bali Ram and others}.
(ii) (e) The oral evidence produced by the defendant nowhere proves her pleaded case of marrying Bhagat Ram in accordance with prevailing custom of the village. Rather in her affidavit, exhibited as Ex. DW-4/A, the defendant has sworn that she was married to Bhagat Ram in accordance with Hindu rights and customs. This claim was at variance with her pleaded case of solemnizing marriage with Bhagat Ram in accordance with village customs. While appearing as DW-4 during cross examination, she has stated that her marriage with Bhagat Ram was solemnized in accordance with usual customs about 30/35 years ago. She has further feigned her ignorance about the place of her residence after her so called marriage with Bhagat Ram.
She also stated that she remained with Bhagat Ram and resided with him throughout till his death. She has also stated that she always had cordial relations with Bhagat Ram. This statement of hers is in sharp contradiction to the statement of her own witness Ram Singh as DW-5. Ram Singh (DW-5) during his cross ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 16 examination stated that defendant had been living in her matrimonial home for the last 25/30 years. This witness has also .
stated that Bhagat Ram was living with plaintiff Kirpra Ram. That it was plaintiff Kirpa Ram who was taking care of Bhagat Ram.
That it was plaintiff Kirpa Ram who had performed the last rights of Bhagat Ram. In fact, conduct of the defendant is such that in her cross examination she even denied her signatures on the maintenance petition preferred by her under Section 125 of the Criminal Procedure Code in the year 1993.
In view of oral and the documentary evidence on record considered in light of the pleadings of the parties, the defendant could not establish that she had solemnized marriage with Bhagat Ram after the death of her previous husband Ram Lal.
Long Cohabitation
(iii) Learned counsel for the defendant/appellant also raised an argument that long cohabitation between a man and a woman living as husband and wife strongly raises the presumption in favour of the wedlock. Citing AIR 1978 SC 1557 titled Badri Prasad Vs. Dy. Director of Consolidation and others and AIR 1996 SC 1290 titled Ranganath Parmeshwar Panditrao Mali and another Vs. Eknath Gajanan Kulkarni and ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 17 another, it was argued that in such circumstances, proof to the factum of marriage by examining priest and other witnesses is not .
necessary.
The above line of argument does not fit in the facts of the case in hand. Long cohabitation between the defendant and Bhagat Ram much less as husband and wife is not established from the record. Defendant's oral testimony of living with Bhagat Ram as his wife till Bhagat Ram's death is falsified by her own witness DW-5 Sh. Ram Lal. DW-5 stated that (i) defendant had been living in her matrimonial home around 30 years prior to Bhagat Ram's death (ii) Bhagat Ram had been living with plaintiff No. 1 - Kirpa Ram prior to his death. Bhagat Ram had been living with Kirpa Ram even at the time of his death (iii) His last rites were performed by Kirpa Ram. The fact that defendant and Bhagat Ram had not been living together as husband and wife is amplified by Ex. PW-4/A the application moved by defendant on 02.12.1993 under Section 125 of Criminal Procedure Code seeking maintenance from Bhagat Ram wherein she had submitted that she lived with Bhagat Ram only for 5 years. Her material averments concerning this aspect are as under :-
"1. That marriage between the petitioner and respondent was performed according to the customs of the area and applicable to the ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 18 parties about 17-18 years back. They lived together and cohabited as husband and wife for about 5 years in Village Chapla where the respondent has parental house and landed property.
.
2. That after 5 years the respondent under the influence of his brother started maltreating, misbehaving, beating and abusing the petitioner and thus she was ousted from the house by the respondent without any reasonable cause and thus for the last 10 years the petitioner has been deserted by the petitioner and under such circumstances, she has taken shelter in the house of her brother at Chatera. The respondent has not made any provision of maintenance to the petitioner nor has paid even a single penny as maintenance to the petitioner. On the contrary, the petitioner was subjected to cruelty and was advanced threats not to come back to his house. In order to avoid dependence upon her brothers the petitioner thought to work in a factory at Solan and accordingly she joined Asian Biscuit Factory at Chambaghat where she was given wages @ 250 P.M. in the beginning and the employer of the petitioner has now closed the factory and retrenched the petitioner. Even otherwise, the petitioner is not maintaining good health and is not able to work hard any more, as a result of which she has come back to her parent's house and thus living in Village Chhatera with her brothers."
The reply filed by Bhagat Ram to the above application denying solemnization of any marriage between him and Hira Devi and decision of the application, have already been referred to in para 4(ii)(c) supra.
The plaintiffs have strongly come out with their plea that defendant was never married to Bhagat Ram. Bhagat Ram in his reply filed to the application had not only denied solemnizing any marriage with the defendant but also denied living together with her much less as husband and wife.
::: Downloaded on - 08/07/2022 20:03:54 :::CIS 19The evidence on record does not substantiate the plea that there was long habitation between the defendant and .
Bhagat Ram as husband and wife which dispenses putting forth formal proofs of marriage between the two.
(iv) Section 100 C.P.C.
In (1999) 3 SCC 722 titled Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, Hon'ble Supreme Court held that 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........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.......unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of applicable law or contrary to the law as pronounced by the apex Court or was based upon inadmissible evidence or arrived at without evidence.
The above was reiterated in (2019) 6 SCC 46 titled S. Subramanian Vs. S. Ramasamy and others wherein it was inter-alia held that High Court is not required to re-appreciate the entire evidence on record and to come to its own finding when the findings recorded by the Courts below, more particularly the first ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 20 appellate Court are on appreciation of evidence. In 2012 (2) Shim. LC 869, titled Maro (dead) through L.R. Paramjeet Kaur .
(Smt.) wife of Shri Om Prakash Vs. Khillo wife of Tirath Ram, following circumstances were held not sufficient for interfering with findings of first appellate Court :-
"20.The Apex Court has held that the High Court cannot set aside findings of the first Appellate Court in the following circumstances;
(i) No point of law pleaded before the Courts below {V. Pechimuthu vs. Gowrammal,(2001) 7 SCC 617, Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545};
(ii) to arrive at a different conclusion on reappraisal of evidence, to adjudge the adequacy or sufficiency of evidence to sustain the conclusion of facts, {Ramanuja Naidu (supra)},
(iii) mere equitable consideration, {Kondiba Dagadu Kadam (supra)};
(iv) the first Appellate Court did not advert to all the reasons given by the trial Court, {Arumugham (dead) by LRs & Ors. vs. Sundarambal & Anr. (1999) 4 SCC 350};
(v) where two inferences are possible, the one drawn by the lower Appellate Court is binding on the High Court, {Kondiba Dagadu Kadam (supra), Karnataka Board of Wakf vs. Anjuman-E-Esmail Madris-Un-Niswan, (1999) 6 SCC 343 and Hero Vinoth (supra)};
(vi) Another view is possible on re-appreciation of the same evidence, {Navaneethammal vs. Arjuna Chetty (1996) 6 SCC
166)}."
In 2020(10) Scale 168, titled Nazir Mohamed Vs. Kamala and ors., Hon'ble Supreme Court reiterated the principles relating to Section 100 CPC as under:-
::: Downloaded on - 08/07/2022 20:03:54 :::CIS 21"37. The principles relating to Section 100 CPC relevant for this case may be summarised 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.
(iii) 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 5 AIR 1963 SC 302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised 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. 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."
In the instant case, learned first appellate Court after correct appreciation of evidence led by the parties, both documentary and ocular, in light of pleadings of the parties arrived at the just conclusion. Findings arrived at by the learned first appellate Court cannot be held as perverse.
For all the aforesaid reasons, I find no reason to interfere with the findings recorded by the first appellate ::: Downloaded on - 08/07/2022 20:03:54 :::CIS 22 Court. The appeal is accordingly dismissed. All pending application)s, if any, stand disposed of.
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8th July, 2022 (K) Jyotsna Rewal Dua
Judge
r to
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