Hariprasad Mathur And Others vs Kishore Kumar Mathur (Decd.

This is an appeal filed by the appellants/plaintiffs against the judgment and decree dated 24.1.2012 passed by learned Civil Judge, Class-I, Shajapur

and judgment dated 28.9.2018 passed by learned 1st Additional District Judge, Shajapur, whereby the suit as well as first appeal both have been

dismissed.

Facts of the case, in short, are as under :

(i) The appellants/plaintiffs filed the suit for declaration of title, partition, possession and mesne profit in respect of agricultural land of Account No.46

year 1979-80 total area 4.441 Hect. situated at Village Magariya, City Shajapur (hereinafter referred to as the “suit land†for short). The details

of the suit land are mentioned and described in Para 3 (a), (b) and (c) of the plaint.

(ii) According to the plaintiffs, the suit land was initially owned by Bherubaksh and after his death, Narayanprasad being the son of Bherubaksh

became the owner of the suit land. Prahladnarayan was the sole son of Narayanprasad. Narayanprasad died sometime in the year 1920-1921 and at

that time, Prahladnarayan was one year old and was under the guardianship of his mother Daulatbai. As per the law prevailing at that time i.e.

“Kanoon Maal†of “Gwalior State Samwat 1983†(hereinafter referred to as “Kanoon Maal†for short), after the death of

Narayanprasad, Prahladnarayan was entitled to inherit the suit land, but it was wrongly recorded in the name of his mother Daulatbai. The suit land

being the property of joint Hindu family/wadiloparjit property, the plaintiffs being the sons of Prahladnarayan got title by way of succession. Daulatbai

had no title over the suit land of Prahladnarayan. After becoming major, Prahaladnarayan started cultivation of the suit land and Daulatbai never

remained into possession of the suit land. Daulatbai died in the year 1973 and by virtue of M.P. Land Revenue Code (MPLRC) and the personal law

i.e. Hindu Succession Act. Even after the death of Daulatbai, the plaintiffs being the sons of Prahladnarayan became the co-owner of the suit land

along with defendants. Prahladnarayan got married with Dayavantibai and the plaintiffs are the sons of Dayavantibai and defendant No.1 (now dead

represented through legal heir) is brother of the plaintiff and defendants No.5 and 6 are sisters (now dead represented through legal heirs. The

plaintiffs further pleaded that Daulatbai had no issue, therefore, Narayanprasad kept Phoolbai - sister of Daulatbai who gave birth to son â€

Prahladnarayan and daughter â€" Phalkabai, therefore, Narayanprasad was natural father of Prahladnarayan. After the death of Narayanprasad,

Phoolbai left both minor son and daughter with Daulatbai and got married with Madholal. Prahladnarayan was not son of Madholal, but the son of

Narayanprasad. In his service reocrd, name of Narayanprasad was recorded as his father. Therefore, the suit land came into the share of

Prahaladnarayan and Dayavantibai by way of succession. Daulatbai never executed the lease (Ex. D/1) in favour of Dayavantibai and Daulatbai had

no right and title to execute the Will in favour of defendant No.1. Prahladnarayan was in Government service, therefore, his name was not recorded in

the revenue record and he got recorded the name of wife - Dayavantibai. Prahladnarayan died on 19.10.1992 and after his death, plaintiffs, defendant

Nos. 1, 5 and 6 and their mother Dayavantibai became joint owner of the suit land being the legal heirs of first class under the Hindu Succession Act

and after death of Dayavantibai, plaintiffs and defendants No.1, 5 and 6 became entitled to get 1/8th share in the suit land and accordingly, the

plaintiffs are having 4/7 part of the suit land defendant No.1 is having 1/7 and defendants No.5 and 6 are having 2/7 part in the suit land. They all are

in joint possession and cultivating the suit land. Hence, the plaintiffs are entitled for decree of partition, declaration and possession.

(iii) According to the plaintiffs, the cause of auction accrued in their favour on 18.2.2002 when defendant has denied the title of the plaintiffs and tried

to illegally occupy his share. He immediately obtained the certified copy of the revenue record in the month of October, 2002 then it came to his

knowledge that the entire land had been mutated in the name of Dayavanti which is not binding on them. Dayavanti was medically unfit in the year

1985 and her vision was very poor, therefore, she was unable to sign any document and she did not execute the Will dated 3.12.1988 in favour of

defendant No.1. Defendant No.1 has got registered the forged Will in his name and he is not having any exclusive right over the suit land being a joint

Hindu coparcenery property. The plaintiffs are having 4/7 share in the suit land.

(iv) Defendants No.1 to 4 appeared and filed the written statement denying the family tree described in Schedule-A appended to the plaint. According

to them, the name of mother of Prahladnarayan was Phoolbai and name of father was Madholal. Daulatbai was sister of Phoolbai and Narayanprasad

was her husband. The plaintiffs have wrongly described the name of Prahladnarayan as their father. The plaintiffs have no share and title in the suit

land. Narayanprasad died on 16.2.1915 and after his death, the suit land was mutated in the name of Daulatbai on 14.2.1918 who executed

“Mourushi Patta†in the name of Dayavanti w/o. Prahladnarayan on 4.6.1942 and which was recorded in the revenue record by order of the

Tehsildar. Thereafter, Dayavanti transferred the suit land in favour of defendants by way of Will dated 12.3.1988. The plaintiffs submitted an

application before the Tehsildar for mutation which has been rejected vide order dated 23.8.2004. By virtue of lease, Dayavanti became the absolute

owner of the suit land and Daulatbai had no title over it. Dayavanti submitted an application on 25.7.1951 before the Tehsildar and after verification,

the lease in her name was recorded. The original lease was produced before the Tehsildar on 4.8.2007 and accordingly, the plaintiffs have no

relationship with Prahladnarayan and they never remain in joint possession with the defendants No.1 to 4. At the time of execution of Will, the health

condition of Dayavanti was sound. Therefore, the suit is liable to be dismissed. Defendants No.5 & 6 did not file any written statement.

(v) Learned trial Court framed 11 issues for adjudication. The plaintiffs examined Ashok Kumar as P.W.1; Dinesh Sharma as P.W.2; Premnarayan

as P.W.3; and Sureshchandra Tiwari as P.W.4 and got exhibited 12 documents as Ex. P/1 to P/12. The defendants examined Kishore Kumar as

D.W.1; Laxman Gavli as D.W.2; Gajanand Jaltare as D.W.3; Nandkishore Patil as D.W.4; and Vijay Kumar as D.W.4 and got exhibited 13

documents as Ex. D/1 to D/13. After appreciating the evidence came on record, learned Civil Judge has held that Daulatbai had executed the lease of

the suit land in favour of Dayavantibai vide Ex. D/1. The plaintiffs themselves have admitted that the suit land was recorded in the name of

Dayavantibai by virtue of Ex. D/1 and not by way of succession. The plaintiffs themselves have pleaded that the suit land was recorded in the name

of Dayavantibai, therefore, they are estopped from their statement and from the documents also, it is proved that Dayavantibai got the exclusive title

and she remained into the possession of the suit land. While answering the Issue Nos. 3, 5, 6 and 7, learned trial Court has held that it is undisputed

that the plaintiffs and defendants No.1, 5 and 6 are legal heirs of Prahladnarayan and Dayavantibai and the plaintiffs have only challenged the Will

(Ex. D/6) of Dayavantibai. Learned trial Court has discarded the family partition deed dated 14.4.1987 (Ex. D/6) and held that the defendants are not

entitled to get the benefit of it. Thereafter, learned trial Court has considered the validity of Will dated 12.3.1998 (Ex. D/8). At the time of execution of

the Will, Dayavantibai was of 76 years of age. Learned trial Court has held that the plaintiffs have failed to prove that Dayavantibai was medically not

well and she was not capable to execute the Will and found that the Will (Ex. D/9) proved in favour of the defendants. Hence, the plaintiffs have

failed to prove their 4/7 share in the suit land and accordingly vide judgment and decree dated 24.1.2012 dismissed the suit.

(vi) Being aggrieved by the aforesaid judgment and decree, the plaintiffs filed first appeal before the Additional District Judge. Vide judgment dated

28.9.2018, the first appeal has also been dismissed. Learned Additional District Judge has held that the plaintiffs have failed to prove that the suit land

is co-parcenery property and never recorded in the name of Narayanprasad as “Bhoomi Swamiâ€. Even if the lease (Ex. D/1) is disbelieved, the

plaintiffs have failed to prove that the suit land was ever recorded in the name of Bherubaksh or Narayanprasad. Learned first appellate Court has

gone ahead to hold that the suit land was self earned property of Dayavantibai and during her lifetime, she had exclusive right to execute Ex. D/1 and

D/9 and accordingly dismissed the appeal. Hence, the present second appeal before this Court.

(vii) Shri R.R. Trivedi, learned counsel appearing for the plaintiffs submitted that both the courts below have failed to appreciate that by virtue of

Kanoon Maal, after the death of Narayanprasad, the suit land ought to have been recorded in the name of Prahladnarayan. Section 253 of Kanoon

Maal specifically provides that after the death of father, sole son is entitled to succeed the suit land. The name of Daulatbai was wrongly recorded as

owner of the suit land as the widow had no right and title in the property of the husband, therefore, from the very inception, after the death of

Narayanprasad, the name of Daulatbai was wrongly recorded in the revenue record and Daulatbai had no right to execute the lease (Ex. D/1) in

favour of Dayavantibai. Since Dayavantibai had no right and title in the suit land, therefore, the Will executed by her is not binding on the plaintiffs and

the plaintiffs are entitled to 4/7 share in the suit land along with the defendants. Both the courts below ought to have decreed the suit. He has proposed

following substantial questions of law :

“(i) Whether both the Learned Court below have committed an error of law by wrongly interpreting the scope of section 253 of Qanoon Maal

Gwalior Samvat 1983?

(ii) Whether both the Learned Court below have committed an error of law in not appreciating that the law which was in force at the relevant point of

time i.e. Qanoon Maal Gwalior Samvat 1983, the suit properties could not leased out by a widow?

(iii) Whether both the Learned Court below have committed an error of law by misinterpreting the factual matrix and evidence came on record?

(iv) Whether both the Learned Court below have committed an error of law in appreciating that Dayawatibai had acquired the title in the suit

properties as per law?

(v) Whether both the Learned Court below have committed an error of law by treating the Will executed by Dayawatibai dt. 12/3/1998 in favour of

Suresh, Mahesh, Vikas, Mukesh and Neeraj?

(vi) Whether both the Learned Court below have failed to appreciate that the suit properties were ancestral properties of plaintiffs/defendants?â€​

Both the courts below have held that the plaintiffs and defendants are legal heirs of Prahladnarayan and Dayavantibai, therefore, this issue is not

liable to be examined by this Court as to whether Phoolbai was married to Madholal and gave birth to Prahladnarayan or not? The plaintiffs by way of

suit claimed partition with the defendants on the ground that since Prahladnarayan got inherited the entire properties after the death of Narayanprasad,

therefore, they are having equal share with the defendants in it. The name of Daulatbai was wrongly recorded as owner of the suit land after the

death of Narayanprasad because at time, Prahladnarayan was only one year old and as per Kanoon Maal, Prahladnarayan became absolute owner of

the suit land. Dayavantibai had no right to execute the lease in favour of the defendants, therefore, the lease executed in favour of Dayavantibai is

illegal. Both the courts below on appreciating the evidence came on record held that there is nothing on record to establish that the suit land was

originally owned by Bherubaksh and after his death, Narayanprasad inherited the same. In the revenue record, the entire property was recorded in the

name of Dayavantibai. The plaintiffs have failed to establish that how it came into the name of Dayavantibai. Ex. D/1 is dated 4.6.1942 and on the

basis of which, the name of Dayavantibai was recorded. Vide Ex. D/4 dated 5.6.1942, Daulatbai W/o. Narayanprasad submitted an application before

the Tehsildar for executing the lease in favour of Dayavantibai and requested for recording of her name. On the basis of the said application, name of

Dayavantibai was mutated in the revenue record. Therefore, learned courts below have rightly accepted the aforesaid documents which are more

than 30 years old. Both the courts below by way of concurrent finding have found the Will executed by Dayavantibai as valid and the plaintiffs have

not suggested any question of law in respect of perversity of the findings recorded by the courts below. Both the courts below have rightly held that

the plaintiffs have failed to prove that the suit land is a co-parcenery property of Bherubaksh and Narayanprasad for which they are entitled for 4/7

share by way of partition. Since the co-parcenery property has been disbelieved, therefore, the plaintiffs cannot claim the benefit of Section 256 of

Kanoon Maal in favour of Prahladnarayan.

Even otherwise, the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but

even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the

appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn

by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot

substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were

erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court,

or was based upon inadmissible evidence or arrived at without evidence.

If the question of law termed as a substantial ques-tion stands already decided by a larger Bench of the High Court concerned or by the Privy

Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial

question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant

should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary

evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found

that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a

substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an

error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR

1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the Apex court has held as under:

Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established

their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was

no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A

schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’

right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the

findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by

the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their

case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law

much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also

not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though

concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court.

In view of the above, this appeal does not involve any question of law much less substantial question of law and the same deserves to be and is

hereby dismissed.

No order as to costs.