Mahindra Gurung And Others vs Bhagi Maya Gurung And Others

Meenakshi Madan Rai, J

Heard Learned Counsel for the Appellants on Section 100 of the Code of Civil Procedure, 1908, at length.

I have also perused the impugned Judgment of the First Appellate Court in Title Appeal No.03 of 2020, dated 30-09-2023, as also the Judgment of the Learned Trial Court in Title Suit Case No.12 of 2018, dated 24-12-2019. Both the Learned Courts below have arrived at a concurrent finding. The Learned Trial Court had decreed the Suit of the Plaintiffs, the Respondents No.1 and 2 herein, having struck the following issues for determination, viz.;

Whether the suit of the Plaintiffs are barred by law of limitation?

Whether the suit property is the self acquired property of Late Kul Bahadur Gurung which he had purchased after selling one plot of land to one Far Tshering Lepcha?

Whether the suit property was purchased by the mother of Plaintiffs, Late Nar Maya Gurung, after selling her daijo property given by Late Mangal Singh Gurung?

Whether Late Kul Bdr. Gurung had three wives during his lifetime and whether the mother of the Plaintiff, Late Nar Maya Gurung, was the third wife of Late Kul Bahadur Gurung?

Whether the Plaintiffs are the natural daughters of Late Nar Maya Gurung and Late Kul Bahadur Gurung?

Whether any other sons and daughters fathered by Late Kul Bahadur Gurung are still alive besides the Plaintiffs and D1 and D2?

Whether the suit property is the stridhan of the Plaintiffs?

Whether they are entitled to the suit property originally standing in the name of Late Nar Maya Gurung?

Whether after the death of Late Kul Bahadur Gurung and his third wife, Late Nar Maya Gurung, all the landed properties both ancestral and self-acquired have been equally mutated as respective shares among their sons and daughters?

Whether the Plaintiff No. 1 already received the share of the ancestral property and mutated in her name?

Whether the Plaintiff No. 2 got a share but the same is yet to be mutated in her name?

Whether D1 and D2 had illegally mutated the suit property in their names without the knowledge of the Plaintiffs?

Whether the D11 obtained the NOC from the Plaintiffs and whether it was issued by the Plaintiffs for the purpose of mutation of the suit property in the names of D1 and D2?

Whether the Plaintiffs raised any objection during the process of mutation of the suit land in the year 2006 in the favour of D1 and D2?

Whether the suit property is illegally mutated and transferred to the D1 and D2 and whether the deed of conveyance thereof is liable to be called up and cancelled?

Whether the Plaintiffs are entitled to be relief(s) as prayed for by them in the Plaint?

On the Learned Trial Court analysing the evidence on record, all issues were decided in favour of the Plaintiffs and it was ordered inter alia that “Their prayer that : A declaration that the Plaintiffs are the rightful owners and title holder of the suit property; an order cancelling the mutation of suit property in the names of D1 and D2; a decree directing the Registrar to have the suit property mutated in the name of the Plaintiffs; their prayer that a decree declaring that Plaintiffs are only entitled to the compensation amount lying in the office of the District Collector, Namchi, South Sikkim is granted.” The Title Suit No.12 of 2018 was disposed of accordingly.

Aggrieved, the Defendants No.1 to 10 therein, who are the Appellants before this Court, was before the First Appellate Court assailing the Judgment. The Learned First Appellate Court in Title Appeal No.03 of 2020, while considering the Appeal, examined the reasonings arrived at by the Learned Trial Court in determining the issues and after independently considered the evidence on record, concluded inter alia that; “the Ld Trial Court ………….. has considered the oral and documentary evidence, carefully and has discussed all the issues. Thus, the judgment and decree of the Ld Trial Court needs no interference.” The Appeal was thereby dismissed.

Aggrieved with the Judgment, the Appellants impugn it before this Court. It was urged by Learned Counsel for the Appellants that the Learned Courts below had arrived at their findings by ignoring the material evidence which affects the rights of the parties and therefore ought to be re-considered by this Court. The Learned Counsel for the Appellants further submitted that the following are the substantial questions of law which have been formulated in the Memorandum of Appeal and are required to be determined by this Court;

“A. Whether the suit properties are the respective shares of the Appellant No.1, 2, and 3 from the self-acquired properties of Late father of the Appellants/Defendants No.1 and 2 and step-father-in-law of the Appellant /Defendant No.3 and the father of the Plaintiffs?

B. Whether proper procedure was followed when suit property was mutated by the office of the Performa Respondent/Defendant No.3?

C. Whether the suit is barred by law of limitation for seeking cancellation of mutation of the Suit property?

D. Whether entire landed properties both ancestral and self-acquired were mutually divided among the sons and daughters of Late Kul Bahadur Gurung?

E. Whether Respondents/Plaintiffs got share from the said mutation?”

Having considered the submissions and having perused the entire records placed before me, it is apposite at this juncture to look at the decision of the Supreme Court in Sir Chunilal V. Mehta and sons Ltd vs. Century. Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 wherein it was propounded as follows;

“(6) …………………………. 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 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.”

In Hero Vinoth (Minor) vs. Seshammal (2006) 5 SCC 145 the Supreme Court observed as follows;

“19. 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 of fact are possible, the 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.

The question of law raised will not be considered as a substantial question of law, if it 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. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents 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 [(1976) 1 SCC 803] held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. (See Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722].)”

Thus, it is no more res integra that to be a ‘substantial’ question of law the above aspects have to be present and the question 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 the Court are concerned.

The questions formulated above do not reveal any ‘substantial’ questions of law and are based on facts. A second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal. [See, Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board and Others : (2010) 13 SCC 216]

I am aware that the Supreme Court has held in Hero Vinoth (supra) that inference or appreciation of facts from the recitals or contents of a document are questions of facts. However, the legal effect of the terms of a document or construction of a document involving the application of any principle of law are questions of law. This however is not the case of the Appellants nor has it been agitated as apparent from the afore-extracted questions formulated.

Thus, the questions raised by the Learned Counsel for the Appellants do not in the first instance qualify as substantial questions of law and consequently do not fall within any of the parameters discussed in the Judgments referred to hereinabove.

Accordingly, the Second Appeal is dismissed.

Copy of this Order be transmitted forthwith to the Learned Courts below.