Sadhu vs Mst. Kishni

I.S. Tiwana, J.—The following facts have given rise to this letters patent appeal, in R.S.A. No. 896 of 1963.

Punjaba (since dead) and Sadhu appellant instituted a suit against Smt Kishni with the allegations that her husband Fateh Singh having died, she had entered into a karewa marriage with one Hari Singh of Sherpur, about 10 or 11 years prior to the institution of the suit, and on the performance of the said karewa marriage, she forfeited all her rights and title to the property left by her deceased husband, Fateh Singh. They further claimed ownership of the property. The suit was contested by Shmt Kishni and it led to the framing of the following issues :--

Whether the suit is maintainable in the present form ?

Whether the defendant performed Karewa marriage with Hari Singh ? If so, to what effect.

Whether the defendant was in possession of the suit land as widow of Shri Fateh Singh deceased at the commencement of the Hindu Succession Act, 1956 ? if so, to what effect ?

Whether the daughter and daughter''s son of Shri Fateh Singh are in existence ? If so, its effect ?

Are the plaintiffs estopped from filing this suit ?

After recording evidence, the trial Court decreed the suit on merits leaving the parties to bear their own costs. Smt. Kishni challenged this judgment and decree in appeal before the District Judge, Ambala, who on February 11, 1963 on reappraisal of the evidence, affirmed the findings of the trial court and more particularly the finding on issue No 2. Still feeling dissatisfied, Smt. Kishni filed a regular second appeal in this court which was allowed by P.C. Jain, J., on July 22, 1975.

The solitary argument new raised by Mr. H.L. Sarin, Senior Advocate for the appellants is that the learned Single Judge committed an error of law in setting aside the concurrent findings of fact recorded by the two lower courts on issue No. 2 and thus acted without jurisdiction. To us he appears to be wholly right. To appreciate his argument, a reference to certain parts of the judgment of the learned Single Judge becomes necessary.

Right in the opening part of the judgment, when the counsel for the appellants (then counsel for the respondents before the learned Single Judge) raised this very contention that the finding of the learned District Judge on issue No. 2 being a pure finding of fact, however erroneous that may be it could not be reversed in second appeal, the learned single Judge has observed as follows :--

Apparently the finding of the learned District Judge on this issue appears to be a finding of fact and is usually not disturbed in second appeal, but in order to test the correctness of the contention of the learned counsel for the appellant, (sic)with the help of the learned counsel for the parties, perused the entire oral and documentary evidence and find that the submission of Mr. Jain has considerable force. (It may be mentioned here that Mr. S.K. Jain was the counsel for the defendant-appellant before the learned Single Judge.)

This observation of the learned Single Judge itself makes it more than clear that while hearing the regular second appeal, he has gone into re-appraisal of the evidence recorded in the case and has then come to his own conclusion, upsetting the findings of the lower courts, so far as the all important issue, that is Issue No 2 is concerned. Further after referring to the oral evidence recorded in the case and more particularly the evidence of Sadhu Ram P.W. 1 ; Joti Ram P.W. 2 ; Bishna, P.W. 3 and Punjaba Plaintiff, P.W 6, he recorded the following findings,--

The evidence clearly shows that the Karewa if at all took place in the year 1937 ; but in the plaint the Karewa is alleged to have been performed 10/11 years prior to 1961. Thus the oral evidence completely belies and contradicts the allegation in the plaint and does not prove the case set up by the plaintiffs

He also disagreed with the observations of the District Judge that such a mistake with regard to the year of the Karewa marriage could be due to lapse of time.

After discussing the oral evidence in the case and before referring to the relevant documentary evidence with regard to this issue, the learned Single Judge has again observed as follows :--

It would not be out of place to mention that the learned District Judge believed the oral evidence as the same was finding support from the entries in the electoral rolls and the mutation, Exhibit D-9. From the discussion in the later part of the judgment I am going to take a view that the electoral rolls as well as the mutation too did not prove the marriage and as such even that foundation crumbles

Then the learned Single Judge discusses the documentary evidence in he form of certified copies of the electoral rolls of village Sherpur-Exhibit P. 12 for the year 1955 ; Exhibits P. 1 and 2 for the year 1958 and Exhibit P. 3 for the year 1960 and the mutation entry Exhibit D. 9. In the mutation Exhibit D. 9 the factum of Smt. Kishni''s marriage had been recorded, but since none of the concerned parties appeared before the revenue officer, the same was not attested. Then the learned Single Judge also discusses the other material record in the form of Exhibit P. 11, the certified copy from the Register of Births, showing that twins were born to Smt. Kishni, wife of Han Singh of village Sherpur on February 12, 1960. After a lengthy discussion on the documentary evidence, the learned Judge concludes the matter with the following observations :--

In this view of the matter, the finding of the leaned District Judge on Issue No. 2 is reversed and it is held that the plaintiffs have failed to prove that the defendant performed Karewa marriage with Hari Singh.

As a result of this finding, the appeal of Smt. Kishni was allowed, Thus this letters patent appeal.

A bare reading of the above mentioned parts of the judgment of the learned Single Judge would show that he has considered the entire evidence as he would do in a first appeal and after an elaborate judgment, arrived at a finding of fact to the effect that the plaintiffs had failed to prove issue No 2. Thus it would be seen that the learned Single Judge interfered with the findings of the fact given by the District Judge on issue No. 2 by taking a different view of the evidence accepted by the two lower courts.

The scope of second appeal as envisaged by section 100 of the CPC and section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this court as well as by the final court, that is, the Supreme Court of India. The learned counsel for the appellant has actually made a reference in this regard to Deity Paitabhiramaswami v. S. Hanymayya and others AIR 1959 S.C. 57. Madamanchi Ramappa and others v. Muthaluru Bajjappa AIR 1962 S.C. 1933, Bithal Dass Khanna and others v. Hafiz Abdul Hai 1969 S.C. 481, and Afsar Sheikh and Another Vs. Soleman Bibi and Others, , These pronouncements; in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of a erroneous finding of fact, however gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact.

Mr. R.S. Bindra, Senior Advocate for the respondent in an effortless effort to meet the argument of the appellant''s counsel, submits that since the evidence led by the plaintiffs was not in consonance with their plaint, the same has rightly been discarded by the learned Single Judge The variance he has pointed out is that in tile plaint they have alleged that the Karewa was performed 10 and 11 years prior to the date of filing of the suit and at that time of evidence, they tried to establish that the same had been performed only a year after death of Fateh Singh, which occurred in the year 1936 as per death entry. Exhibit D. 2. This, to my mind, is placing to literal an interpretation on the assertions made in the plaint. As explained by the counsel for the appellant, by saying this all what was meant was that Fateh Singh had died quite some time prior to the filing of the suit or, in any case, before the Hindu Succession Act came into force, or 11 may be, as has been pointed out by the lower appellate court, a mistake with regard to the year of the Karewa marriage Anyhow, even this argument does not, in any manner, bring the case of the respondent within the scope of section 100, Civil Procedure Code, as the same amounts to neither any error in law nor any procedure established by law. Ultimately it is pure appreciation of evidence on the basis of which the learned Single Judge has upset the findings of fact recorded by the two lower courts.

In view of the above discussion, we are clearly of the view that the learned Single Judge exceeded his jurisdiction in setting aside the findings of the fact on issue No. 2. The provisions of section 100 being clear and unambiguous, there was no scope for interference with those findings. We thus allow the appeal and set aside the judgment of the learned Single Judge and affirm the judgment and decree passed by the District Judge. The parties are, however loft to bear their own costs.