Jethu Lall Dhoba and Others vs Gopal Chandra Tiwary

Hon''ble Mrs. Justice Poonam Srivastav

Heard learned Counsel for the appellants as well as Counsel appearing on behalf of plaintiff-respondent. The suit was preferred for declaration in respect of 63 decimals of land of Khata No. 216 village Batinor.

The appellants'' case is that the land in question belong to one Sabitry Bala Debya and she was the owner till her death on 25th March, 1982. She died issueless. While she was alive, a Will was executed in favour of the plaintiff which was a registered Will and the same was probated in Probate Case No. 08 of 1982 in the Court of District Judge, Dhanbad. The basis of the claim of the plaintiff was that this probate was disputed by the defendant-appellant. However, the admitted position is that the order of the probate was not challenged. The Trial Court framed a number of issues. The plaintiff had examined six witnesses as well as adduced documentary evidence such as rent receipts Ext. 1 to 1/3; certified photo copy of Vakalatnama of Will Probate Case No. 08 of 1982 bearing signature of Satish Chandra Pathak. Original sale deed No. 3383 dated 3rd March, 1955 Ext. 2; Grant of Probate of Will in Will Probate Case No. 08 of 1982 Ext. 3; dated 18th April, 1984 certified copy of order in C.N.T. Case dated 5th February, 1991 Ext. 4; certified copy of the order dated 26th August, 1983 in Probate Case No. 8182 Ext. 5; certified copy of order of Sri R.N. Das, Executive Magistrate Ext. 6. All the evidences is discussed in paragraph 10 of the Trial Court judgment.

After taking into consideration, the evidence adduced and also the defence witnesses, the Trial Court decreed the suit. While decreeing the suit, it was specifically recorded that neither Satish Chandra Pathak nor the defendants preferred any appeal against the grant of Probate. The Counsel has tried to lay emphasis on the fact that the probate order was brought on record as evidence but the original Will was not brought on record. However, he could not dispute the fact that there was an order which was exhibited during the suit proceeding. The order of the Trial Court has been affirmed in appeal preferred by the defendant-appellant. The Appellate Court has also framed two points for decision firstly whether the suit property was self acquired by Sabitry Bala Debya and whether she was an absolute owner of the property and could will the property and second question was whether the plaintiff acquired right, title or interest and possession over the suit property by virtue of the Will.

Both the questions were decided in favour of the plaintiff-respondent and since these questions relates to a positive finding of fact arrived at after appraisal of evidence, it cannot be gone into in a second appeal.

I have perused the question of law raised in this appeal, which appears on the face of it only formal in nature and the questions also relate to findings of fact which cannot be interfered in exercise of jurisdiction u/s 100 C.P.C.

Reliance has been placed by the Counsel appearing on behalf of respondents in the case of "Gurdev Kaur & Ors. Vrs. Kaki & Others", reported in 2006 AIR SCW 2404. This case also relates to a Will which was probated and the Apex Court while placing reliance on the Will passed the judgment in favour of the beneficiary. The Apex Court declined to interfere in the judgment of the High Court which was conformation of the judgment of the court below. Section 100 C.P.C. has limited scope and findings of fact however wrong and grossly wrong appreciation of evidence are not liable to be interfered. The Apex Court considered that even prior to amendment the consistent view was that the Courts are not to interfere with concurrent finding of fact and after the amendment of CPC in the year 1976, the scope of Section 100 is considerably narrowed. In view of the settled principle of law, there is no good ground for interference. The Second Appeal is, accordingly, dismissed.