Jamnabai vs Dhapubai

The present Second Appeal is arising out of judgment dated 30/04/2016 passed in Civil Suit No. 06A/2014 by Second Civil Judge, Class II, Biaora, Dist. Rajgarh. The trial Court has dismissed the suit. The Second Appeal is also against the judgment dated 3/10/2018 passed by the Second Additional District Judge, Biaora, Dist. Rajgarh in Regular Civil Appeal No. 10A/2017. The appellate Court has dismissed the appeal of the plaintiff, meaning thereby, both the Courts below have decided against the plaintiff.

Facts of the case reveal that the plaintiff Jamnabai has filed a Civil Suit for declaration of title, grant of permanent injunction and for declaration of a gift deed dated 22/06/1974 as null and void. Plaintiff's father Raghunath was having two daughters namely; Dhapubai and Jamnabai. Raghunath during his lifetime has executed a gift-deed on 22/06/1974 in favour of Dhapubai -defendant No. 1.

The plaintiff, as stated in the plaint, got married fifty years back from the date of filing of the Civil Suit and she went to the house of her in-laws. It was further stated that after the death of her father, after about 15-20 years, she came to her father's village and started cultivating the suit land. On 08/11/2011 she submitted an application for obtaining copies of the revenue record and on 10/01/2011 she came to know that the defendant No. 1 got the entire land mutated in her name and in those circumstances she preferred a civil suit claiming half share in the suit property and also sought a declaration for declaring the gift deed dated 22/06/1974 as null and void.

The defendant No. 1 did file a written statement and she has stated that her father expired 35 years back, her father has executed a gift deed which was duly registered on 22/06/1974, she has even received compensation in respect of part of land which came under submergence and a prayer was made for dismissal of the civil suit.

Plaintiff Jamnabai (PW1) has produced document revenue record right from 1962 to 2011 and in the revenue record the name of the Raghunath was in existence and later on, on account of gift deed Dhapubai's name is in existence. The Plaintiff has also produced the certified copy of the Will dated 22/6/1974 and the defendant was examined as DW1, Raghu DW2 and Arjun Singh DW3. Before the trial Court it was established that on account of the registered gift deed the land was transferred in the name of defendant and no evidence was brought on record to establish that the gift deed was executed under coercion or was a forged document. On the contrary, the trial Court taking into account Section 90 of the Indian Evidence Act and also placing reliance upon the judgment delivered in the case of Ram Rati Sharma Vs. Sheela Sharma and others reported in 2007 (3) MPLJ 589 has rightly arrived at a conclusion that the burden to prove that the Will was a forged document, was upon the plaintiff. The trial Court based upon the documentary evidence and the evidence adduced by the parties has arrived at a conclusion that the land was transferred by the father of the plaintiff on the basis of gift deed dated 22/06/1974 and the suit was filed only in the year 2014 claiming title. On the basis of the findings arrived at by the trial Court, the civil suit has been dismissed. The findings of the fact arrived at by the trial Court have been affirmed by the first appellate Court, meaning thereby, there are concurrent findings of fact.

This Court is of the considered opinion that the father of the plaintiff, as it was his property was certainly within his powers to execute the gift deed in favour of his daughter Dhapubai and it is certainly not a forged and fabricated document as has not been proved before the trial Court.

Resultantly, the findings of the trial Court which have been affirmed by the first appellate Court, does not warrant any interference by this Court in second appeal under Section 100 of the Code of Civil Procedure,1908.

The Apex Court in the case of Gurudev Kumar and Others Vs. Kaki and Others, reported in (2007) 1 SCC 546 in paragraphs 45, 49, 51, 70 and 72 has held as under :-

The Amendment Act of 1976 has intro-duced drastic changes in the scope and ambit of Section 100 C.P.C. A second appeal under Section 100 C.P.C. is now confined to cases where a ques-tion of law is involved and such question must be a substantial one. Section 100, as amended, reads as under:

"100. Second appeal. (1) Save as otherwise ex-pressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memoran-dum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a sub-stantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case in-volves such question."

A mere look at the said provision shows that the High Court can exercise its jurisdiction un-der Section 100 C.P.C. only on the basis of sub-stantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.

Again in Santosh Hazari v. Purushottam Ti-wari (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge Bench of this Court correctly delineat-ed the scope of Section 100 C.P.C.. The Court ob-served that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further men-tioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word sub-stantial, 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 impor-tance" as has been done in many other provisions such as Section 109 of the Code of Article 133(1) (a) of the Constitution.

Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention.

It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to for-mulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question.

When Section 100 C.P.C. is critically exam-ined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law."

This Court is of the considered opinion that as the judgment of the trial Court is based upon purely findings of fact and the findings of fact have been affirmed by the first appellate Court and as no substantial question of law is involved, the question of interference by this court does not arise and the Second Appeal is dismissed.