REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6567 OF 2014
GURNAM SINGH (D) BY LRS. & ORS. …APPELLANT(S)
VERSUS
LEHNA SINGH (D) BY LRS. …RESPONDENT(S)
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 27.11.2007 passed by the High Court
of Punjab and Haryana at Chandigarh in Civil Regular Second
Appeal No.2191 of 1985 by which the High Court has allowed the
said appeal preferred by the respondent hereinoriginal plaintiff
1
(now dead and represented by LRs) and has quashed and set
aside the judgment and decree passed by the First Appellate
Court and consequently restored the judgment and decree
passed by the learned Trial Court, the original defendants have
preferred the present appeal.
2. The facts leading to present appeal in nutshell are as under:
That the respondent–original plaintiff (hereinafter referred to as
‘original plaintiff’) filed a suit in the Court of Sub Judge, First
Class, Sangrur for perpetual injunction restraining the original
defendants from dispossessing him from the suit land. It was the
case on behalf of the original plaintiff that he and his brother
Bhagwan Singh alias Nikka Singh were owners and in possession
of the suit land. Bhagwan Singh alias Nikka Singh expired
leaving behind the plaintiff to be his only successor. Bhagwan
Singh had no wife or children. The defendants who had no
concern with the suit land were out to dispossess him from the
same forcibly. Hence, therefore, he filed the aforesaid suit against
the defendants for perpetual injunction.
2.1 That the defendants appeared before the Trial Court and
resisted the suit by filling the written statement. It was denied by
2
the defendants that the plaintiff was the successor of Bhagwan
Singh, deceased. According to the defendants, Bhagwan Singh,
before his death, executed a Will in favour of Defendant Nos.2 to
6 on 17.01.1980. According to the defendants, as all the
defendants served Bhagwan Singh in his lifetime and therefore he
executed the Will in favour of Defendant nos.2 to 6 because of the
services rendered. It was the case on behalf of the defendants
that prior to it also, Bhagwan Singh alias Nikka Singh had got
executed a Will on 17.08.1979, but the same remained as
unregistered one. It was admitted that in the lifetime of Bhagwan
Singh, both the plaintiff and the Bhagwan Singh, cultivated the
suit land jointly. According to the defendants, after the death of
Bhagwan Singh, Defendant Nos.2 to 6 came into possession of
half share of Bhagwan Singh. In the alternative, the defendants
pleaded that even if it was proved that the original plaintiff was in
possession of the suit land, Defendant Nos. 2 to 6 were entitled to
joint possession of half share of the suit land which belonged to
Bhagwan Singh, deceased.
2.2 That the original plaintiff, in the replication filed, denied
having Bhagwan Singh deceased, executed the Will in favour of
3
the Defendant Nos.2 to 6 on 17.01.1980. He pleaded that
Bhagwan Singh was not in a position to make any Will. Bhagwan
Singh was actually murdered by the defendants by
administrating poison to him and that the defendants were
prosecuted for the murder of Bhagwan Singh deceased. That the
defendants forged the Will on behalf of the Bhagwan Singh and
under the umbrella of that forged document they were out to
dispossess him forcibly. It was also denied that the defendants
were in possession of the suit land with regard to the share of
Bhagwan Singh.
3. That on the basis of pleadings, the learned Trial Court
framed the following issues :
“1. Whether the plaintiff is the sole heir of Bhagwan
Singh, deceased?
2. Whether the plaintiff is in possession of the
property in dispute?
3. Whether the plaintiff is entitled to the relief prayed
for?
4. Whether Bhagwan Singh deceased made a valid
will as alleged in written statement in favour of
defendants Nos.2 to 6?
5. If issue No.2 is proved in favour of the plaintiff
whether defendant Nos.2 to 6 are entitled to joint
possession of the land in suit?
4
6 Whether the defendants are governed in matters of
marriage by the Punjab Pepsu Customary Law? If so,
its effect?
7. Relief.”
4. That pursuant to the order passed by the High Court,
the learned Trial Court framed the following additional issue:
“4. A. Whether the defendants have committed the
murder of Bhagwan Singh? If so, its effect?”
5. Both the parties led evidence on the issues framed.
That on appreciation of evidence and on considering the
submissions made by the learned advocates on behalf of the
respective parties, the Trial Court held Issue Nos.1,4,2,5,6 and
3 in favour of the plaintiff and against the defendants. The
Trial Court held the Issue No.4A in favour of the defendants
and against the plaintiff. Consequently, the learned Trial Court
held Issue No. 3 in favour of the plaintiff and against the
defendants and held that the plaintiff is entitled to the
perpetual injunction as prayed for. Consequently, the learned
Trial Court decreed the suit.
6. That in an appeal before the First Appellate Court
preferred by the defendants, the First Appellate Court reversed
5
the judgment and decree passed by the Trial court, by giving
cogent reasons which were on reappreciation of evidence. The
First Appellate Court allowed the appeal preferred by the
defendants and consequently dismissed the suit by quashing
and set aside the judgment and decree passed by the learned
Trial Court.
7. Feeling aggrieved and dissatisfied with the judgment
and decree passed by the First Appellate Court, the plaintiff
preferred Regular Second Appeal before the High Court. By
impugned judgment and order, the High Court allowed the
same Second Appeal and has quashed and set aside the
judgment and decree passed by the learned First Appellate
Court dismissing the suit and consequently has restored the
judgment and decree passed by the Trial Court decreeing the
suit.
8. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
defendants have preferred the present appeal.
9. Ms. Mansi Jain, learned advocate has appeared on
behalf of the appellantsoriginal defendants and Mr. Amit
6
Sharma, learned advocate has appeared on behalf of the
respondent– original plaintiff.
10. Ms. Jain, learned Advocate appearing on behalf of the
original defendants has vehemently submitted that, in the
facts and circumstances of the case, the High Court has
committed a grave error in allowing the second appeal and
quashing and set aside the wellreasoned judgment and order
passed by the First Appellate Court.
10.1 It is vehemently submitted by Ms. Jain, learned
Advocate appearing on behalf of the original defendants that
the impugned judgment and order passed by the High Court is
beyond the scope and ambit of Section 100 of the Code of Civil
Procedure (CPC). It is vehemently submitted by Ms. Jain that
while allowing the Second Appeal and quashing and set aside
the judgment and decree passed by the First Appellate Court,
the High Court has reappreciated the entire evidence on
record as if the High Court was deciding the First Appeal
under Section 96 of the CPC.
10.2 It is vehemently submitted by Ms. Jain, learned
Advocate appearing on behalf of the original defendants that
7
High Court, while deciding the second appeal, has not properly
appreciated the fact that the High Court was deciding the
second appeal under Section 100 of the CPC and therefore was
bound by the limitations in exercise of the powers under
Section 100 of the CPC. It is submitted that in the second
appeal under Section 100 of the CPC, the High Court was not
required to appreciate/reappreciate the evidence and the
appellate jurisdiction of the High Court was restricted to the
substantial question of law. It is submitted that therefore
while quashing the impugned judgment and order, the High
court has exceeded in its jurisdiction under Section 100 of the
CPC and therefore the impugned judgment and order passed
by the High Court deserves to be quashed and set aside on
these grounds alone. In support of her above submissions, Ms.
Jain, learned Advocate has relied upon the decisions of this
Court in the case of Panchugopal Barua v. Umesh Chandra
Goswami, (1997) 4 SCC 713; Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v.
Sohan Lal, (2000) 1 SCC 434.
8
10.3 It is further submitted by Ms. Jain, learned advocate
appearing on behalf of the original defendants that even on
merits also, the impugned judgment and order passed by the
High Court is not sustainable. It is submitted by Ms. Jain that
the learned Trial Court while holding and not accepting the
Will executed in favour of the defendant Nos.2 to 6 framed
following suspicious circumstances:
“(i) There is no mention about the Plaintiff
being disinherited by the testator in the Will
though it was proved on record that the Plaintiff
was the real brother of the testator and was
serving him and also cultivating his land. The
factum of Plaintiff cultivating the land stood
proved from the revenue record and, therefore,
covenant in the Will that the land was being
cultivated by the Defendants was factually
incorrect.
(ii) In the Will it is mentioned that it was first
and last Will, whereas stand of the Defendants
was that earlier also there was a Will executed
by the testator.
(iii) The name of father of Gurnam Singh was
also wrongly mentioned.
(iv) As observed by the learned Trial Court, in
the Will, it has been stated that the testator had
headed and understood the Will and thumb
marked the same in the presence of witnesses
and the witnesses also attested it in his
presence. This statement is not required for
proving the Will and, therefore, the learned Trial
Court formed an opinion that such type of
convenient in the Will creates a doubt about its
9
authenticity. Thus the learned Trial Court was
pleased to hold that the Will was stagemanaged
by hatching a conspiracy and that is why DW3
alone took Nikka Singh stealthily from the
village in a car and DW4 Joginder Singh was
already present at Bhawanigarh hobnobbed
with the petitionerwriter and got the
transaction sealed.
(v) All the witnesses stated that Nikka Singh
was in good health at that time which is not
acceptable as admittedly Nikka Singh was
suffering from cancerous disease and was also a
patient of T.B.
(vi) It was also observed by the learned Trial
Court that DW1 in his deposition has stated
that before the death of Nikka Singh he
obtained his thumb impression on 45 blank
papers.
(vii) The way in which the Will was executed was
itself a suspicious circumstance taken note of
by the trial court to reject the said Will.”
10.4 It is submitted by Ms. Jain, learned Counsel appearing
for the original defendants that all the aforesaid circumstances
which were found to be suspicious circumstances by the
learned Trial Court, came to be dealt with by the First
Appellate Court which gave its own reasons on appreciation of
evidence. It is submitted that the First Appellate Court
observed and held as under :
“1. Just because Lehna Singh, natural heir of
10
Bhagwan Singh, hereinafter referred as Testator,
not mentioned in the will, does not make it
suspicious.
2. Declaring the will to be surrounded by
suspicious circumstances, mainly based on
recitals in the body of the will Ex.D2, is not well
founded, as such, will is a registered document
and has been duly proved by attesting witnesses,
DW3 and DW4.
3. Testator would cancel Schedule will by a
registered document are not recitals in the will
which would mean as suspicious circumstances
surrounding the will.
4. Father’s name of Gurnam Singh described as
Dewa Singh, instead of Mehar Singh, are not
such recitals in the will which would means as
suspicious circumstances surrounding the will.
5. The perusal of the will reveals that the will
when it was scribed, it was thumb marked at two
places, when the will as a whole was scribed and
when it was read over to Testator, in the
presence of attesting witnesses.
6. Just because Testator was suffering from an
illness does not mean his testamentary capacity
can be questioned.
7. Nothing has been brought on file by the
Respondent to show that DW3 and DW4 were in
any way inimical towards him, the sworn
testimony of these witnesses remains
unimpeached and unshattered.
DW3 and DW4, who are respectable independent
witnesses and not inimical toward Respondent.”
10.5 It is submitted by Ms. Jain, learned Advocate
appearing for the original defendants that therefore when the
11
First Appellate Court recorded its own findings and reasoning
on appreciation of evidence, which was permissible as the First
Appellate Court being an appeal under Section 96 of the CPC,
the same was not required to be set aside by the High Court in
a second appeal under Section 100 of the CPC. It is submitted
that reappreciation of the evidence while deciding the second
appeal is wholly impermissible. Making the above
submissions, it is prayed to allow the present appeal and
quash and set aside the impugned judgment and order passed
by the High Court and restore the judgment and decree passed
by the learned First Appellate Court and consequently dismiss
the suit.
11. Mr. Amit Sharma, learned advocate appearing on
behalf of the respondent–original plaintiff while opposing the
present appeal has vehemently submitted that in the facts and
circumstances of the case and on appreciation of evidence and
having found that the findings recorded by the First Appellate
Court are perverse, the High Court has rightly interfered with
the judgment and decree passed by the First Appellate Court
12
and has rightly restored the judgment and decree passed by
the learned Trial Court.
11.1 It is further submitted by Mr. Amit Sharma, learned
Advocate that cogent reasons were given by the Trial Court
holding the Will dated 17.01.1980 as suspicious and finding
recorded by the learned Trial Court were on appreciation of the
evidence, as rightly observed by the High Court, the First
Appellate Court was not justified in interfering with such
findings which were recorded on appreciation of evidence.
11.2 It is further submitted by Mr. Sharma, learned Advocate
appearing on behalf of the original plaintiff that the testator, at
the time of execution of the alleged Will, was not in a position
to execute the Will as he was suffering from cancerous disease
and was also a patient of TB.
11.3 It is further submitted by Mr. Sharma, learned
Advocate appearing on behalf of the original plaintiff that even
the DW1, in his deposition, admitted that before the death of
Nikka Singh, he obtained his thumb impression on 45 blank
papers. It is submitted that there are number of discrepancies
in the alleged Will, viz., though in the Will it was stated that
13
land was being cultivated by the defendants, actually the
plaintiff was cultivating the land; that in the Will it was
mentioned that it was the first and last Will, whereas, even
according to the defendants, earlier also there was a Will
executed by the testator and the name of the father of Gurnam
Singh was also wrongly mentioned. It is submitted that
therefore, as rightly observed by the learned Trial Court, the
Will was executed in suspicious circumstances and therefore
the learned Trial Court rightly rejected the same Will. It is
submitted that despite the above glaring suspicious
circumstances, the First Appellate Court held the Will genuine
and therefore the High Court has rightly interfered with the
judgment and decree passed by the First Appellate Court.
11.4 It is further submitted by Mr. Sharma, learned
Advocate appearing on behalf of the original plaintiff that the
learned Trial Court was justified in holding the Will to be
surrounded by suspicious circumstances due to illhealth of
the testator. It is submitted that the testator was admittedly
suffering from cancerous disease and T.B. and therefore, the
14
evidence of the attesting witnesses that he was in good state of
mind, was rightly ignored by the Trial Court.
11.5 Making the above submissions, it is prayed to dismiss
the present appeal.
12. Heard the learned advocates appearing on behalf of the
original plaintiff and defendants at length. We have considered
in detail the judgment and decree passed by the Trial Court,
Judgment and order passed by the First Appellate Court and
impugned judgment and order passed by the High Court.
13. At the outset, it is required to be noted that the
learned Trial Court held the Will dated 17.01.1980, which was
executed in favour of original defendant Nos. 2 to 6,
surrounded by suspicious circumstances and therefore did not
believe the said Will.
13.1. The suspicious circumstances which were considered
by the learned Trial Court are narrated/stated hereinabove.
On reappreciation of evidence on record and after dealing with
each alleged suspicious circumstances, which were dealt with
by the learned Trial Court, the First Appellate Court by giving
cogent reasons held the Will genuine and consequently did not
15
agree with the findings recorded by the learned Trial Court.
However, in Second Appeal under Section 100 of the CPC, the
High Court, by impugned judgment and order has interfered
with the Judgment and Decree passed by the First Appellate
Court. While interfering with the judgment and order passed
by the first Appellate Court, it appears that while upsetting the
judgment and decree passed by the First Appellate Court, the
High Court has again appreciated the entire evidence on
record, which in exercise of powers under Section 100 CPC is
not permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated the
fact that the High Court was deciding the Second Appeal
under Section 100 of the CPC and not first appeal under
Section 96 of the CPC. As per the law laid down by this Court
in a catena of decisions, the jurisdiction of High Court to
entertain second appeal under Section 100 CPC after the 1976
Amendment, is confined only when the second appeal involves
a substantial question of law. The existence of ‘a substantial
question of law’ is a sine qua non for the exercise of the
jurisdiction under Section 100 of the CPC. As observed and
held by this Court in the case of Kondiba Dagadu Kadam
16
(Supra), in a second appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the
First Appellate Court, unless it finds that the conclusions
drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable
law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that
if First Appellate Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an
error either of law or of procedure requiring interference in
second appeal. It is further observed that the Trial Court could
have decided differently is not a question of law justifying
interference in second appeal.
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 :
17
“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 reappreciating the
evidence on record in the second appeal 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 reappreciation 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 socalled suspicious circumstance which weighed with
the learned Trial Court and thereafter it came to the conclusion
18
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.
15.1 As observed hereinabove and as held by this Court in a
catena of decisions and even as per Section 100 CPC, the
jurisdiction of the High Court to entertain the second appeal
under Section 100 CPC is confined only to such appeals which
involve a substantial question of law. On going through the
substantial questions of law framed by the High Court, we are of
the opinion that the question of law framed by the High Court
while deciding the second appeal, cannot be said to be
substantial questions of law at all. The substantial questions of
law framed by the High Court are as under :
“(i) Whether the Appellate Court can reverse
the findings recorded by the learned trial
court without adverting to the specific
finding of the trial Court?
(ii) Whether the judgment passed by the
learned lower Appellate Court is perverse and
outcome of misreading of evidence?”
19
The aforesaid cannot be said to be substantial questions of law at
all. In the circumstances, the impugned judgment and order
passed by the High Court cannot be sustained and the same
deserves to be quashed and set aside. At this stage, decision of
this Court in the case of Madamanchi Ramappa v. Muthaluru
Bojappa, AIR 1963 SC 1633, is required to be referred to.
In the aforesaid decision, this Court has observed and held as
under:
“Whenever this Court is satisfied that in dealing
with a second appeal, the High Court has, either
unwittingly and in a casual manner, or
deliberately as in this case, contravened the
limits prescribed by S.100, it becomes the duty
of this Court to intervene and give effect to the
said provisions. It may be that in some cases,
the High Court dealing with the second appeal
is inclined to take the view that what it regards
to be justice or equity of the case has not been
served by the findings of fact recorded by Courts
of fact; but on such occasions it is necessary to
remember that what is administered in Courts
is justice according to law and considerations of
fair play and equity however important they
may be, must yield to clear and express
provisions of the law. If in reaching its decisions
in second appeals, the High Court contravenes
the express provisions of S.100, it would
inevitably introduce in such decisions an
element of disconcerting unpredictability which
20
is usually associated with gambling; and that is
a reproach which judicial process must
constantly and scrupulously endeavour to
avoid.”
16. Therefore, we are of the opinion that this is a fit case to
interfere with the impugned judgment and order passed by the
High Court, as, as observed hereinabove, the High Court has
exceeded in its jurisdiction, while allowing the second appeal
under Section 100 of the CPC.
17. In view of the above and for the reasons stated above, we
allow this appeal, set aside the impugned Judgment and Order
passed by the High Court dated 27.11.2007 passed in Civil
Regular Second Appeal No.2191 of 1985 and restore the
Judgment and Order passed by the learned District Judge,
Sangrur dated 06.06.1985 passed in Civil Appeal No.27 of
29.02.1983 and consequently dismiss the suit preferred by the
respondent herein–original plaintiff. No costs.
18. Before parting with the present judgment, we remind the
High Courts that the jurisdiction of the High Court, in an appeal
under Section 100 of the CPC, is strictly confined to the case
involving substantial question of law and while deciding the
21
second appeal under Section 100 of the CPC, it is not permissible
for the High Court to reappreciate the evidence on record and
interfere with the findings recorded by the Courts below and/or
the First Appellate Court and if the First Appellate Court has
exercised its discretion in a judicial manner, its decision cannot
be recorded as suffering from an error either of law or of
procedure requiring interference in Second Appeal. We have
noticed and even as repeatedly observed by this Court and even
in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009)
5 SCC 264, despite the catena of decisions of this Court and even
the mandate under Section 100 of the CPC, the High Courts
under Section 100 CPC are disturbing the concurrent findings of
facts and/or even the findings recorded by the First Appellate
Court, either without formulating the substantial question of law
or on framing erroneous substantial question of law.
Therefore, we are constrained to observe as above and
remind the High Courts the limitations under Section 100 of the
CPC and again hope that High Courts would keep in mind the
legal position before interfering in Second Appeal under Section
100 of the Code of Civil Procedure.
22
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
March 13, 2019.
23
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6567 OF 2014
GURNAM SINGH (D) BY LRS. & ORS. …APPELLANT(S)
VERSUS
LEHNA SINGH (D) BY LRS. …RESPONDENT(S)
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 27.11.2007 passed by the High Court
of Punjab and Haryana at Chandigarh in Civil Regular Second
Appeal No.2191 of 1985 by which the High Court has allowed the
said appeal preferred by the respondent hereinoriginal plaintiff
1
(now dead and represented by LRs) and has quashed and set
aside the judgment and decree passed by the First Appellate
Court and consequently restored the judgment and decree
passed by the learned Trial Court, the original defendants have
preferred the present appeal.
2. The facts leading to present appeal in nutshell are as under:
That the respondent–original plaintiff (hereinafter referred to as
‘original plaintiff’) filed a suit in the Court of Sub Judge, First
Class, Sangrur for perpetual injunction restraining the original
defendants from dispossessing him from the suit land. It was the
case on behalf of the original plaintiff that he and his brother
Bhagwan Singh alias Nikka Singh were owners and in possession
of the suit land. Bhagwan Singh alias Nikka Singh expired
leaving behind the plaintiff to be his only successor. Bhagwan
Singh had no wife or children. The defendants who had no
concern with the suit land were out to dispossess him from the
same forcibly. Hence, therefore, he filed the aforesaid suit against
the defendants for perpetual injunction.
2.1 That the defendants appeared before the Trial Court and
resisted the suit by filling the written statement. It was denied by
2
the defendants that the plaintiff was the successor of Bhagwan
Singh, deceased. According to the defendants, Bhagwan Singh,
before his death, executed a Will in favour of Defendant Nos.2 to
6 on 17.01.1980. According to the defendants, as all the
defendants served Bhagwan Singh in his lifetime and therefore he
executed the Will in favour of Defendant nos.2 to 6 because of the
services rendered. It was the case on behalf of the defendants
that prior to it also, Bhagwan Singh alias Nikka Singh had got
executed a Will on 17.08.1979, but the same remained as
unregistered one. It was admitted that in the lifetime of Bhagwan
Singh, both the plaintiff and the Bhagwan Singh, cultivated the
suit land jointly. According to the defendants, after the death of
Bhagwan Singh, Defendant Nos.2 to 6 came into possession of
half share of Bhagwan Singh. In the alternative, the defendants
pleaded that even if it was proved that the original plaintiff was in
possession of the suit land, Defendant Nos. 2 to 6 were entitled to
joint possession of half share of the suit land which belonged to
Bhagwan Singh, deceased.
2.2 That the original plaintiff, in the replication filed, denied
having Bhagwan Singh deceased, executed the Will in favour of
3
the Defendant Nos.2 to 6 on 17.01.1980. He pleaded that
Bhagwan Singh was not in a position to make any Will. Bhagwan
Singh was actually murdered by the defendants by
administrating poison to him and that the defendants were
prosecuted for the murder of Bhagwan Singh deceased. That the
defendants forged the Will on behalf of the Bhagwan Singh and
under the umbrella of that forged document they were out to
dispossess him forcibly. It was also denied that the defendants
were in possession of the suit land with regard to the share of
Bhagwan Singh.
3. That on the basis of pleadings, the learned Trial Court
framed the following issues :
“1. Whether the plaintiff is the sole heir of Bhagwan
Singh, deceased?
2. Whether the plaintiff is in possession of the
property in dispute?
3. Whether the plaintiff is entitled to the relief prayed
for?
4. Whether Bhagwan Singh deceased made a valid
will as alleged in written statement in favour of
defendants Nos.2 to 6?
5. If issue No.2 is proved in favour of the plaintiff
whether defendant Nos.2 to 6 are entitled to joint
possession of the land in suit?
4
6 Whether the defendants are governed in matters of
marriage by the Punjab Pepsu Customary Law? If so,
its effect?
7. Relief.”
4. That pursuant to the order passed by the High Court,
the learned Trial Court framed the following additional issue:
“4. A. Whether the defendants have committed the
murder of Bhagwan Singh? If so, its effect?”
5. Both the parties led evidence on the issues framed.
That on appreciation of evidence and on considering the
submissions made by the learned advocates on behalf of the
respective parties, the Trial Court held Issue Nos.1,4,2,5,6 and
3 in favour of the plaintiff and against the defendants. The
Trial Court held the Issue No.4A in favour of the defendants
and against the plaintiff. Consequently, the learned Trial Court
held Issue No. 3 in favour of the plaintiff and against the
defendants and held that the plaintiff is entitled to the
perpetual injunction as prayed for. Consequently, the learned
Trial Court decreed the suit.
6. That in an appeal before the First Appellate Court
preferred by the defendants, the First Appellate Court reversed
5
the judgment and decree passed by the Trial court, by giving
cogent reasons which were on reappreciation of evidence. The
First Appellate Court allowed the appeal preferred by the
defendants and consequently dismissed the suit by quashing
and set aside the judgment and decree passed by the learned
Trial Court.
7. Feeling aggrieved and dissatisfied with the judgment
and decree passed by the First Appellate Court, the plaintiff
preferred Regular Second Appeal before the High Court. By
impugned judgment and order, the High Court allowed the
same Second Appeal and has quashed and set aside the
judgment and decree passed by the learned First Appellate
Court dismissing the suit and consequently has restored the
judgment and decree passed by the Trial Court decreeing the
suit.
8. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
defendants have preferred the present appeal.
9. Ms. Mansi Jain, learned advocate has appeared on
behalf of the appellantsoriginal defendants and Mr. Amit
6
Sharma, learned advocate has appeared on behalf of the
respondent– original plaintiff.
10. Ms. Jain, learned Advocate appearing on behalf of the
original defendants has vehemently submitted that, in the
facts and circumstances of the case, the High Court has
committed a grave error in allowing the second appeal and
quashing and set aside the wellreasoned judgment and order
passed by the First Appellate Court.
10.1 It is vehemently submitted by Ms. Jain, learned
Advocate appearing on behalf of the original defendants that
the impugned judgment and order passed by the High Court is
beyond the scope and ambit of Section 100 of the Code of Civil
Procedure (CPC). It is vehemently submitted by Ms. Jain that
while allowing the Second Appeal and quashing and set aside
the judgment and decree passed by the First Appellate Court,
the High Court has reappreciated the entire evidence on
record as if the High Court was deciding the First Appeal
under Section 96 of the CPC.
10.2 It is vehemently submitted by Ms. Jain, learned
Advocate appearing on behalf of the original defendants that
7
High Court, while deciding the second appeal, has not properly
appreciated the fact that the High Court was deciding the
second appeal under Section 100 of the CPC and therefore was
bound by the limitations in exercise of the powers under
Section 100 of the CPC. It is submitted that in the second
appeal under Section 100 of the CPC, the High Court was not
required to appreciate/reappreciate the evidence and the
appellate jurisdiction of the High Court was restricted to the
substantial question of law. It is submitted that therefore
while quashing the impugned judgment and order, the High
court has exceeded in its jurisdiction under Section 100 of the
CPC and therefore the impugned judgment and order passed
by the High Court deserves to be quashed and set aside on
these grounds alone. In support of her above submissions, Ms.
Jain, learned Advocate has relied upon the decisions of this
Court in the case of Panchugopal Barua v. Umesh Chandra
Goswami, (1997) 4 SCC 713; Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v.
Sohan Lal, (2000) 1 SCC 434.
8
10.3 It is further submitted by Ms. Jain, learned advocate
appearing on behalf of the original defendants that even on
merits also, the impugned judgment and order passed by the
High Court is not sustainable. It is submitted by Ms. Jain that
the learned Trial Court while holding and not accepting the
Will executed in favour of the defendant Nos.2 to 6 framed
following suspicious circumstances:
“(i) There is no mention about the Plaintiff
being disinherited by the testator in the Will
though it was proved on record that the Plaintiff
was the real brother of the testator and was
serving him and also cultivating his land. The
factum of Plaintiff cultivating the land stood
proved from the revenue record and, therefore,
covenant in the Will that the land was being
cultivated by the Defendants was factually
incorrect.
(ii) In the Will it is mentioned that it was first
and last Will, whereas stand of the Defendants
was that earlier also there was a Will executed
by the testator.
(iii) The name of father of Gurnam Singh was
also wrongly mentioned.
(iv) As observed by the learned Trial Court, in
the Will, it has been stated that the testator had
headed and understood the Will and thumb
marked the same in the presence of witnesses
and the witnesses also attested it in his
presence. This statement is not required for
proving the Will and, therefore, the learned Trial
Court formed an opinion that such type of
convenient in the Will creates a doubt about its
9
authenticity. Thus the learned Trial Court was
pleased to hold that the Will was stagemanaged
by hatching a conspiracy and that is why DW3
alone took Nikka Singh stealthily from the
village in a car and DW4 Joginder Singh was
already present at Bhawanigarh hobnobbed
with the petitionerwriter and got the
transaction sealed.
(v) All the witnesses stated that Nikka Singh
was in good health at that time which is not
acceptable as admittedly Nikka Singh was
suffering from cancerous disease and was also a
patient of T.B.
(vi) It was also observed by the learned Trial
Court that DW1 in his deposition has stated
that before the death of Nikka Singh he
obtained his thumb impression on 45 blank
papers.
(vii) The way in which the Will was executed was
itself a suspicious circumstance taken note of
by the trial court to reject the said Will.”
10.4 It is submitted by Ms. Jain, learned Counsel appearing
for the original defendants that all the aforesaid circumstances
which were found to be suspicious circumstances by the
learned Trial Court, came to be dealt with by the First
Appellate Court which gave its own reasons on appreciation of
evidence. It is submitted that the First Appellate Court
observed and held as under :
“1. Just because Lehna Singh, natural heir of
10
Bhagwan Singh, hereinafter referred as Testator,
not mentioned in the will, does not make it
suspicious.
2. Declaring the will to be surrounded by
suspicious circumstances, mainly based on
recitals in the body of the will Ex.D2, is not well
founded, as such, will is a registered document
and has been duly proved by attesting witnesses,
DW3 and DW4.
3. Testator would cancel Schedule will by a
registered document are not recitals in the will
which would mean as suspicious circumstances
surrounding the will.
4. Father’s name of Gurnam Singh described as
Dewa Singh, instead of Mehar Singh, are not
such recitals in the will which would means as
suspicious circumstances surrounding the will.
5. The perusal of the will reveals that the will
when it was scribed, it was thumb marked at two
places, when the will as a whole was scribed and
when it was read over to Testator, in the
presence of attesting witnesses.
6. Just because Testator was suffering from an
illness does not mean his testamentary capacity
can be questioned.
7. Nothing has been brought on file by the
Respondent to show that DW3 and DW4 were in
any way inimical towards him, the sworn
testimony of these witnesses remains
unimpeached and unshattered.
DW3 and DW4, who are respectable independent
witnesses and not inimical toward Respondent.”
10.5 It is submitted by Ms. Jain, learned Advocate
appearing for the original defendants that therefore when the
11
First Appellate Court recorded its own findings and reasoning
on appreciation of evidence, which was permissible as the First
Appellate Court being an appeal under Section 96 of the CPC,
the same was not required to be set aside by the High Court in
a second appeal under Section 100 of the CPC. It is submitted
that reappreciation of the evidence while deciding the second
appeal is wholly impermissible. Making the above
submissions, it is prayed to allow the present appeal and
quash and set aside the impugned judgment and order passed
by the High Court and restore the judgment and decree passed
by the learned First Appellate Court and consequently dismiss
the suit.
11. Mr. Amit Sharma, learned advocate appearing on
behalf of the respondent–original plaintiff while opposing the
present appeal has vehemently submitted that in the facts and
circumstances of the case and on appreciation of evidence and
having found that the findings recorded by the First Appellate
Court are perverse, the High Court has rightly interfered with
the judgment and decree passed by the First Appellate Court
12
and has rightly restored the judgment and decree passed by
the learned Trial Court.
11.1 It is further submitted by Mr. Amit Sharma, learned
Advocate that cogent reasons were given by the Trial Court
holding the Will dated 17.01.1980 as suspicious and finding
recorded by the learned Trial Court were on appreciation of the
evidence, as rightly observed by the High Court, the First
Appellate Court was not justified in interfering with such
findings which were recorded on appreciation of evidence.
11.2 It is further submitted by Mr. Sharma, learned Advocate
appearing on behalf of the original plaintiff that the testator, at
the time of execution of the alleged Will, was not in a position
to execute the Will as he was suffering from cancerous disease
and was also a patient of TB.
11.3 It is further submitted by Mr. Sharma, learned
Advocate appearing on behalf of the original plaintiff that even
the DW1, in his deposition, admitted that before the death of
Nikka Singh, he obtained his thumb impression on 45 blank
papers. It is submitted that there are number of discrepancies
in the alleged Will, viz., though in the Will it was stated that
13
land was being cultivated by the defendants, actually the
plaintiff was cultivating the land; that in the Will it was
mentioned that it was the first and last Will, whereas, even
according to the defendants, earlier also there was a Will
executed by the testator and the name of the father of Gurnam
Singh was also wrongly mentioned. It is submitted that
therefore, as rightly observed by the learned Trial Court, the
Will was executed in suspicious circumstances and therefore
the learned Trial Court rightly rejected the same Will. It is
submitted that despite the above glaring suspicious
circumstances, the First Appellate Court held the Will genuine
and therefore the High Court has rightly interfered with the
judgment and decree passed by the First Appellate Court.
11.4 It is further submitted by Mr. Sharma, learned
Advocate appearing on behalf of the original plaintiff that the
learned Trial Court was justified in holding the Will to be
surrounded by suspicious circumstances due to illhealth of
the testator. It is submitted that the testator was admittedly
suffering from cancerous disease and T.B. and therefore, the
14
evidence of the attesting witnesses that he was in good state of
mind, was rightly ignored by the Trial Court.
11.5 Making the above submissions, it is prayed to dismiss
the present appeal.
12. Heard the learned advocates appearing on behalf of the
original plaintiff and defendants at length. We have considered
in detail the judgment and decree passed by the Trial Court,
Judgment and order passed by the First Appellate Court and
impugned judgment and order passed by the High Court.
13. At the outset, it is required to be noted that the
learned Trial Court held the Will dated 17.01.1980, which was
executed in favour of original defendant Nos. 2 to 6,
surrounded by suspicious circumstances and therefore did not
believe the said Will.
13.1. The suspicious circumstances which were considered
by the learned Trial Court are narrated/stated hereinabove.
On reappreciation of evidence on record and after dealing with
each alleged suspicious circumstances, which were dealt with
by the learned Trial Court, the First Appellate Court by giving
cogent reasons held the Will genuine and consequently did not
15
agree with the findings recorded by the learned Trial Court.
However, in Second Appeal under Section 100 of the CPC, the
High Court, by impugned judgment and order has interfered
with the Judgment and Decree passed by the First Appellate
Court. While interfering with the judgment and order passed
by the first Appellate Court, it appears that while upsetting the
judgment and decree passed by the First Appellate Court, the
High Court has again appreciated the entire evidence on
record, which in exercise of powers under Section 100 CPC is
not permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated the
fact that the High Court was deciding the Second Appeal
under Section 100 of the CPC and not first appeal under
Section 96 of the CPC. As per the law laid down by this Court
in a catena of decisions, the jurisdiction of High Court to
entertain second appeal under Section 100 CPC after the 1976
Amendment, is confined only when the second appeal involves
a substantial question of law. The existence of ‘a substantial
question of law’ is a sine qua non for the exercise of the
jurisdiction under Section 100 of the CPC. As observed and
held by this Court in the case of Kondiba Dagadu Kadam
16
(Supra), in a second appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the
First Appellate Court, unless it finds that the conclusions
drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable
law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that
if First Appellate Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an
error either of law or of procedure requiring interference in
second appeal. It is further observed that the Trial Court could
have decided differently is not a question of law justifying
interference in second appeal.
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 :
17
“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 reappreciating the
evidence on record in the second appeal 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 reappreciation 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 socalled suspicious circumstance which weighed with
the learned Trial Court and thereafter it came to the conclusion
18
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.
15.1 As observed hereinabove and as held by this Court in a
catena of decisions and even as per Section 100 CPC, the
jurisdiction of the High Court to entertain the second appeal
under Section 100 CPC is confined only to such appeals which
involve a substantial question of law. On going through the
substantial questions of law framed by the High Court, we are of
the opinion that the question of law framed by the High Court
while deciding the second appeal, cannot be said to be
substantial questions of law at all. The substantial questions of
law framed by the High Court are as under :
“(i) Whether the Appellate Court can reverse
the findings recorded by the learned trial
court without adverting to the specific
finding of the trial Court?
(ii) Whether the judgment passed by the
learned lower Appellate Court is perverse and
outcome of misreading of evidence?”
19
The aforesaid cannot be said to be substantial questions of law at
all. In the circumstances, the impugned judgment and order
passed by the High Court cannot be sustained and the same
deserves to be quashed and set aside. At this stage, decision of
this Court in the case of Madamanchi Ramappa v. Muthaluru
Bojappa, AIR 1963 SC 1633, is required to be referred to.
In the aforesaid decision, this Court has observed and held as
under:
“Whenever this Court is satisfied that in dealing
with a second appeal, the High Court has, either
unwittingly and in a casual manner, or
deliberately as in this case, contravened the
limits prescribed by S.100, it becomes the duty
of this Court to intervene and give effect to the
said provisions. It may be that in some cases,
the High Court dealing with the second appeal
is inclined to take the view that what it regards
to be justice or equity of the case has not been
served by the findings of fact recorded by Courts
of fact; but on such occasions it is necessary to
remember that what is administered in Courts
is justice according to law and considerations of
fair play and equity however important they
may be, must yield to clear and express
provisions of the law. If in reaching its decisions
in second appeals, the High Court contravenes
the express provisions of S.100, it would
inevitably introduce in such decisions an
element of disconcerting unpredictability which
20
is usually associated with gambling; and that is
a reproach which judicial process must
constantly and scrupulously endeavour to
avoid.”
16. Therefore, we are of the opinion that this is a fit case to
interfere with the impugned judgment and order passed by the
High Court, as, as observed hereinabove, the High Court has
exceeded in its jurisdiction, while allowing the second appeal
under Section 100 of the CPC.
17. In view of the above and for the reasons stated above, we
allow this appeal, set aside the impugned Judgment and Order
passed by the High Court dated 27.11.2007 passed in Civil
Regular Second Appeal No.2191 of 1985 and restore the
Judgment and Order passed by the learned District Judge,
Sangrur dated 06.06.1985 passed in Civil Appeal No.27 of
29.02.1983 and consequently dismiss the suit preferred by the
respondent herein–original plaintiff. No costs.
18. Before parting with the present judgment, we remind the
High Courts that the jurisdiction of the High Court, in an appeal
under Section 100 of the CPC, is strictly confined to the case
involving substantial question of law and while deciding the
21
second appeal under Section 100 of the CPC, it is not permissible
for the High Court to reappreciate the evidence on record and
interfere with the findings recorded by the Courts below and/or
the First Appellate Court and if the First Appellate Court has
exercised its discretion in a judicial manner, its decision cannot
be recorded as suffering from an error either of law or of
procedure requiring interference in Second Appeal. We have
noticed and even as repeatedly observed by this Court and even
in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009)
5 SCC 264, despite the catena of decisions of this Court and even
the mandate under Section 100 of the CPC, the High Courts
under Section 100 CPC are disturbing the concurrent findings of
facts and/or even the findings recorded by the First Appellate
Court, either without formulating the substantial question of law
or on framing erroneous substantial question of law.
Therefore, we are constrained to observe as above and
remind the High Courts the limitations under Section 100 of the
CPC and again hope that High Courts would keep in mind the
legal position before interfering in Second Appeal under Section
100 of the Code of Civil Procedure.
22
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
March 13, 2019.
23
