Himachal Pradesh High Court
Kamlesh Kumar vs Milap Chand (Deceased) Through Lrs on 20 April, 2026
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 169 of 2023
Date of decision: 20.04.2026.
.
Kamlesh Kumar ...Appellant.
Versus
Milap Chand (deceased) through LRs. ...Respondents.
Coram:
The Hon'ble Mr. Justice Romesh Verma, Judge.
of
Whether approved for reporting?1
For the appellant : Mr. Arsh Rattan, Advocate.
For the respondents : Mr. N.K. Thakur, Sr. Advocate with Mr.
rt Shagun Sharma, Advocate
respondents No. 1(a) to 1(c).
for
Romesh Verma, Judge (Oral):
The present appeal arises out of the judgment and decree, dated 03.05.2023, as passed by the learned Additional District Judge, Hamirpur, H.P. in Civil Appeal No. 02 of 2018, whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree dated 05.12.2017, as passed by the learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in Civil Suit No. 217 of 2011, have been affirmed.
2. Brief facts of the case are that the present appellant/plaintiff filed a suit for possession by way of partition with respect to the land situated at Jansuh, Mouza Jassai, Tehsil Nadaun, District Hamirpur, H.P. Khata No. 47, Khatauni No. 47, Khasra Nos 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/04/2026 08:05:08 :::CIS-2-( 2026:HHC:13269 ) 39,40,68 and 70, Kitas-4, measuring 0-48-57 hetares located at Mahal Choula Kawal, Mouza Jassai, Tehsil Nadaun , District Hamipur, H.P., Khata No.4, Khatuni No.7 Khasra Kitas 23, measuring 0-80-15 .
hectares located at Mahal Jansuh, Mouza Jassai, Tehsil Nadaun, Distt. Hamirpur, H.P., Khata No. 6, Khatauni No. 9, Khasra No. 236, measuring 0-04-62 hectares located at Mahal Jansuh, Mouza Jassai, Tehsil Nadaun, Distt. Hamirpur, H.P of
3. It was averred in the plaint that the suit land is a joint Hindu Coparcenary and ancestral property of the parties alongwith rt their coparceners. The plaintiff has got 1/4th share in the suit land .
The defendant (since deceased) was a pensioner and getting pension of Rs.2000/- per month. It was further averred in the plaint that the defendant (since deceased) in connivance with other family members threatened the plaintiff to alienate or create charge over the suit property by raising loan. Further he threatened to change the nature of the suit land by raising construction thereupon though he was requested to admit the claim of the plaintiff but he refused to do so.
4. Admittedly, the plaintiff Kamlesh Kumar filed a suit against his father namely Milap Chand, the original defendant. The suit was contested by the defendant by raising various preliminary objections with regard to maintainability, cause of action and estoppel etc. On merits, it was averred that the suit land is not Joint Hindu Coparcenary and Ancestral Property. Therefore, there is no question of any share of ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-3-( 2026:HHC:13269 ) the plaintiff in the suit property. The plaintiff is residing in Mumbai for the last more than 20 years and he has no concern with the well being of the defendant. It was further stated that the second son of the .
defendant namely Naresh Kumar and his family are serving the defendant. Further it was stated that there is no question of alienating, creating charge or raising construction over the suit land. The averments as made in the plaint were refuted and all the allegations as of leveled in the same were denied.
5. On the pleadings of the parties, the learned trial court on rt 25.10.2013 framed the following issues:-
1. Whether the suit land is joint Hindu coparcenary and ancestral property of plaintiff, defendant and others, as alleged? OPP.
2. Whether the plaintiff has got 1/4th share over the suit land, as alleged? OPP.
3. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for?
OPP.
4. Whether, plaintiff is entitled for decree for possession by way of partition, as prayed for? OPP.
5. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.
6. Whether the suit is not maintainable, as alleged?
OPD.
7. Whether the plaintiff is estopped from filing the suit by his own act and conduct, as alleged? OPD.
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8. Whether the defendant is entitled for special cost U/s 35-A CPC, as alleged? OPD
9. Relief?
.
6. The learned trial Court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial Court vide its judgment and decree dated 05.12.2017 dismissed the suit of the plaintiff of primarily on the ground that the plaintiff has failed to show that the suit property is Joint Hindu Coparcenary and Ancestral Property between rt the parties and that the co-sharers of the suit land have not been arrayed as the party defendants and that the jurisdiction of the Civil Court is barred under the provisions of 171 of the H.P. Land Revenue Act. Further it was held by the learned trial Court that the plaintiff has failed to challenge the Will and the gift deed, which have been executed by the defendant in favour of the plaintiff, his nephew, sister-
in-law and all the coparceners have not been impleaded as a party in the partition suit.
7. Feeling dissatisfied, the plaintiff preferred an appeal before the learned Additional District Judge, Hamirpur. During the pendency of the appeal, the original defendant Milap Chand expired and his legal representatives namely, Pankaj Sharma(son), Sudesh Kumari (wife), Arpit Kaptlya(son), Naresh Kumar (son),Sushma Devi (wife of Naresh Kumar) were arrayed as party respondents. The First ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-5-( 2026:HHC:13269 ) Appellate Court vide its judgment and decree dated 03.05.2023, dismissed the appeal, as preferred by the plaintiff.
8. Still feeling aggrieved, the plaintiff has approached this .
Court by filing the present Regular Second Appeal under Section 100 of Code of Civil Procedure.
9. It is contended by Mr. Arsh Rattan, learned counsel for the appellant that judgments and decrees as passed by the Courts below of are erroneous and liable to be quashed and set-aside. He submits that since the suit property is Joint Hindu Coparcenary and Ancestral rt Property, therefore, he is entitled for 1/4th share in the suit land. He further submits that the Courts below have not taken into consideration the oral as well as documentary evidence placed on record and have not appreciated the controversy in question in its right perspective.
10. On the other hand, Mr. N.K. Thakur, learned Sr. Advocate, assisted by Mr. Shagun Sharma, Advocate, has defended the impugned judgments and decrees as passed by the Courts below. He submits that both the Courts below have rightly come to the conclusion that the suit land is not Joint Hindu Coparcenary and Ancestral Property, therefore, the suit as filed for possession by way of partition is not maintainable. He further submits that all the coparceners as reflected in the revenue record have not been arrayed as the party respondents and further the plaintiff himself is the beneficiary of the gift and his son and wife are the beneficiary of the Will. It is contended by ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-6-( 2026:HHC:13269 ) the learned Senior Counsel for the respondent that, on the one hand, he has accepted the gift deed executed by the defendant in his favour .
and the Will executed by the defendant in favour of his son and wife, and, on the other hand, he is alleging that the suit property is coparcenary and joint property.
11. I have heard the learned counsel for the parties and have of also gone through the material available on the case file. With the consent of the parties the case is finally heard at the admission stage.
rt
12. The plaintiff approached the learned trial Court for seeking the relief of possession by way of partition on the ground that the suit land is Joint Hindu Coparcenary and Ancestral Property and therefore, he is having 1/4th share in the suit land. In order to substantiate the same, the plaintiff was required to establish that the suit property had been inherited in succession over the last four generations by the plaintiff. In order to substantiate the same, the plaintiff was required to place on record the relevant revenue records including the proof of the lineage of the previous four generations of inheritance of the suit property. The plaintiff has placed on record copy of jamabandis for the year 2005-2006, 2007-2008 as Ext.P1, Ext.P2, Ext.P4 and Ext. P-6, which reflect the name of the father of the plaintiff Milap Chand as co-
sharer. As far as the earlier jamabandis for the year 1968-69, 1972-73 are concerned, these pertain to only one village they do not reflect or ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-7-( 2026:HHC:13269 ) prove the case of the plaintiff. Neither the revenue record nor corresponding mutations have been placed on record in order to establish his case that the suit property is a joint Hindu Coparcenary .
and Ancestral property , therefore, he is entitled to 1/4th share in the suit land.
13. The learned trial Court has rightly came to the conclusion that as per the revenue record, there are other coparceners reflected of in the record of the rights. However, the said persons have not been arrayed as the party respondents. Since all the coparceners have not rt been arrayed as party defendants/respondents in the proceedings, therefore, findings of the learned trial Court that suit is bad for non-
joinder of the necessary parties are legal and sustainable. Further, the case file reveals that the plaintiff has not been able to establish from corresponding record that the suit land is joint Hindu Coparcenary and ancestral property in the hand of the defendant in the attending facts and circumstances of the case.
14. As rightly pointed out by the learned Senior counsel Mr. N.K. Thakur that the plea as raised by the plaintiff /appellant is mutually contradictory because on the one hand, the plea of the plaintiff is that the suit land is joint Hindu Coparcenary and ancestral property and on the other hand he has accepted the gift deed executed in his favour by his father defendant Milap Chand. Similarly, the defendant had executed a Will in favour of the son of the plaintiff ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-8-( 2026:HHC:13269 ) and his wife, and the said document has not been challenged by the plaintiff. In the absence of laying challenge to the Will and the gift, the plaintiff cannot seek possession by way of partition in the present .
proceedings. It has come on the case file that the plaintiff is residing in Mumbai for the last more than 30 years and and has not served the defendant, his father.
15. The Courts below have concurrently come to the of conclusion that the plaintiff could not establish the suit property to be the joint Hindu Coparcenary and ancestral property, therefore, the suit rt of the plaintiff has rightly been ordered to be dismissed and the said findings have rightly been affirmed by the learned District Judge. Both the Courts below have returned the findings of the fact which do not call for any interference by this Court.
16. The Hon'ble Supreme Court while dealing with scope of interference under Section 100 in Civil Appeal Nos. 2843/2844/2010, titled Nazir Mohamed Vs. J. Kamala & ors decided on 27.08.2020, held that a second appeal only lies on a substantial question of law. It is not open to re-agitate facts or to call upon the High Court to re-
analyze or re-appreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to those cases, where a substantial question of law is involved. Relevant paras of the aforesaid judgment read as under:-
"25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-9-( 2026:HHC:13269 ) question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.
.
26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC."
17. A question of law must arise from the pleadings. It of becomes substantial question of law, if it is debatable, not previously settled by law of land or any binding precedent, must have a material rt bearing on the decision of the case. A pure finding of fact is not open to challenge in second appeal even if appreciation of evidence is palpably erroneous & finding of fact incorrect.
"29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1 , where this Court held:-
"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 12 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."
30. In Hero Vinoth v. Seshammal 2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) 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.
31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-
::: Downloaded on - 25/04/2026 08:05:08 :::CIS-10-( 2026:HHC:13269 ) "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 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 of 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 [(1927-28) 5I5 IA rt 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 Sir Chunilal case [1962 Supp (3) SCR 549 : AIR1962 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 [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) "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 fact of the case it would not be a substantial question of law."
32. 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 ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-11-( 2026:HHC:13269 ) on the decision of the case and/or the rights of the parties before it, if answered either way.
33. To be a question of law "involved 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 Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami.
35. Whether a question of law is a substantial one and of whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling rt necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari .
36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam .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.
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 ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-12-( 2026:HHC:13269 ) 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 14 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 material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere of 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 rt 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."
18. In Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545, the Hon'ble Supreme Court has held as under:
"18. 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 under Section 100 of the CPC. 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 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 ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-13-( 2026:HHC:13269 ) 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. 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 23 determining the question are well settled and there is a of mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
19. It is not within the domain of the High Court to rt 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 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.
20. to 22 xx xx xx xx
23. 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 24 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 ::: Downloaded on - 25/04/2026 08:05:08 :::CIS
-14-( 2026:HHC:13269 ) 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."
19. No other point urged by the learned counsel for the parties.
of
20. No question of law much less the substantial question of law arises in the present appeal. The Courts below have rightly rt determined the point in controversy and there is no infirmity or illegality in the judgments as passed by the learned Courts below.
Therefore, the present appeal being devoid of any merit, deserves to be dismissed. Ordered accordingly.
Pending miscellaneous application (s), if any, shall also stand disposed off.
(Romesh Verma) Judge April 20, 2026.
(veena) ::: Downloaded on - 25/04/2026 08:05:08 :::CIS