REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6567 OF 2014

GURNAM SINGH (D) BY LRS. & ORS. …APPELLANT(S)      

                                           VERSUS

LEHNA SINGH (D) BY LRS.                      …RESPONDENT(S)

J U D G M E N T

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 27.11.2007 passed by the High Court

of Punjab and Haryana at Chandigarh in Civil Regular Second

Appeal No.2191 of 1985 by which the High Court has allowed the

said appeal preferred by the respondent herein­original plaintiff

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(now dead and represented by LRs)  and has quashed and set

aside the judgment and  decree  passed  by the  First  Appellate

Court and consequently restored the judgment and decree

passed by the learned Trial Court, the original defendants have

preferred the present appeal.

2. The facts leading to present appeal in nutshell are as under:

That the respondent–original plaintiff (hereinafter referred to as

‘original plaintiff’) filed a suit  in the Court of Sub Judge, First

Class, Sangrur for perpetual  injunction restraining the original

defendants from dispossessing him from the suit land.  It was the

case on behalf  of  the original plaintiff  that he and his brother

Bhagwan Singh alias Nikka Singh were owners and in possession

of the suit land.   Bhagwan  Singh alias  Nikka Singh expired

leaving behind the plaintiff to be his only successor.   Bhagwan

Singh had no  wife or children. The defendants  who had no

concern with the suit land were out to dispossess him from the

same forcibly. Hence, therefore, he filed the aforesaid suit against

the defendants for perpetual injunction.

2.1 That  the  defendants  appeared before the Trial  Court  and

resisted the suit by filling the written statement. It was denied by

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the defendants that the plaintiff was the successor of Bhagwan

Singh, deceased. According to the defendants, Bhagwan Singh,

before his death, executed a Will in favour of Defendant Nos.2 to

6 on 17.01.1980. According to the defendants, as all the

defendants served Bhagwan Singh in his lifetime and therefore he

executed the Will in favour of Defendant nos.2 to 6 because of the

services rendered.   It was the case on behalf of the defendants

that prior to it also, Bhagwan Singh alias Nikka Singh had got

executed a Will on 17.08.1979, but the same remained as

unregistered one. It was admitted that in the lifetime of Bhagwan

Singh, both the plaintiff and the Bhagwan Singh, cultivated the

suit land jointly. According to the defendants, after the death of

Bhagwan Singh, Defendant Nos.2 to 6 came into possession of

half share of Bhagwan Singh.  In the alternative, the defendants

pleaded that even if it was proved that the original plaintiff was in

possession of the suit land, Defendant Nos. 2 to 6 were entitled to

joint possession of half share of the suit land which belonged to

Bhagwan Singh, deceased.

2.2 That the  original  plaintiff, in the replication  filed,  denied

having Bhagwan Singh ­ deceased, executed the Will in favour of

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the Defendant Nos.2 to 6 on 17.01.1980. He pleaded that

Bhagwan Singh was not in a position to make any Will. Bhagwan

Singh was actually murdered by the defendants by

administrating poison to him and that the defendants were

prosecuted for the murder of Bhagwan Singh deceased.  That the

defendants forged the Will on behalf of the Bhagwan Singh and

under  the umbrella  of that forged document they were out to

dispossess him forcibly.   It was also denied that the defendants

were in possession of the suit land with regard to the share of

Bhagwan Singh.

3. That on the basis of pleadings, the learned Trial Court

framed the following issues :

“1. Whether the plaintiff is the sole heir of Bhagwan Singh, deceased?  

2. Whether the plaintiff is in possession of the property in dispute?

3. Whether the plaintiff is entitled to the relief prayed for?

4.  Whether Bhagwan Singh deceased made a valid will as alleged in written statement in favour of defendants Nos.2 to 6?

5. If issue No.2  is  proved  in  favour of the plaintiff whether  defendant  Nos.2 to  6  are  entitled to joint possession of the land in suit?

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6 Whether the defendants are governed in matters of marriage by the Punjab Pepsu Customary Law? If so, its effect?

7. Relief.”

4. That pursuant to the order passed by the High Court,

the learned Trial Court framed the following additional issue:  

“4. A. Whether the defendants have committed the murder of Bhagwan Singh? If so, its effect?”

5. Both  the  parties led  evidence  on  the issues framed.

That on appreciation of evidence and on considering the

submissions made by the learned advocates on behalf of the

respective parties, the Trial Court held Issue Nos.1,4,2,5,6 and

3  in  favour of the plaintiff  and against the defendants.  The

Trial Court held the Issue No.4A in favour of the defendants

and against the plaintiff. Consequently, the learned Trial Court

held Issue  No.  3 in favour  of the  plaintiff and  against the

defendants and held that the plaintiff is entitled to the

perpetual injunction as prayed for. Consequently, the learned

Trial Court decreed the suit.

6. That in an appeal before the First Appellate Court

preferred by the defendants, the First Appellate Court reversed

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the judgment and decree passed by the Trial court, by giving

cogent reasons which were on re­appreciation of evidence. The

First Appellate Court allowed the appeal preferred by the

defendants and consequently dismissed the suit by quashing

and set aside the judgment and decree passed by the learned

Trial Court.  

7. Feeling aggrieved and dissatisfied with  the  judgment

and decree passed by the First Appellate Court, the plaintiff

preferred Regular Second Appeal before the High Court.   By

impugned judgment  and  order, the  High  Court  allowed  the

same Second Appeal and has quashed and set aside the

judgment  and decree  passed  by the learned  First  Appellate

Court dismissing the suit and consequently has restored the

judgment and decree passed by the Trial Court decreeing the

suit.

8. Feeling aggrieved and dissatisfied with the impugned

judgment and order  passed by  the High Court, the original

defendants have preferred the present appeal.

9. Ms.  Mansi Jain, learned advocate  has appeared on

behalf of the appellants­original defendants and Mr. Amit

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Sharma, learned advocate has appeared on behalf of the

respondent– original plaintiff.

10. Ms. Jain, learned Advocate appearing on behalf of the

original defendants has vehemently submitted that, in the

facts and circumstances of the case, the High Court has

committed a grave  error in  allowing  the second appeal  and

quashing and set aside the well­reasoned judgment and order

passed by the First Appellate Court.

10.1 It is vehemently submitted by Ms. Jain, learned

Advocate appearing on behalf of the original defendants that

the impugned judgment and order passed by the High Court is

beyond the scope and ambit of Section 100 of the Code of Civil

Procedure (CPC). It is vehemently submitted by Ms. Jain that

while allowing the Second Appeal and quashing and set aside

the judgment and decree passed by the First Appellate Court,

the High Court has re­appreciated the entire evidence on

record as if the  High  Court  was  deciding the  First  Appeal

under Section 96 of the CPC.

10.2 It is vehemently submitted by Ms. Jain, learned

Advocate appearing on behalf of the original defendants that

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High Court, while deciding the second appeal, has not properly

appreciated the fact that the  High  Court  was  deciding the

second appeal under Section 100 of the CPC and therefore was

bound by the limitations in exercise of the powers under

Section 100 of the  CPC.  It is  submitted  that in the second

appeal under Section 100 of the CPC, the High Court was not

required to appreciate/re­appreciate the evidence and the

appellate jurisdiction of the High Court was restricted to the

substantial question  of law.   It is submitted that therefore

while quashing the impugned judgment and order, the High

court has exceeded in its jurisdiction under Section 100 of the

CPC and therefore the impugned judgment and order passed

by the High Court deserves to be quashed and set aside on

these grounds alone. In support of her above submissions, Ms.

Jain, learned Advocate has relied upon the decisions of this

Court  in  the case of  Panchugopal  Barua  v.  Umesh Chandra

Goswami,  (1997) 4 SCC 713;  Kondiba Dagadu Kadam  v.

Savitribai Sopan Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v.

Sohan Lal, (2000) 1 SCC 434.

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10.3 It is further submitted by Ms. Jain, learned advocate

appearing on behalf  of the original  defendants that even on

merits also, the impugned judgment and order passed by the

High Court is not sustainable. It is submitted by Ms. Jain that

the  learned Trial Court while holding and not accepting the

Will  executed  in  favour of the defendant  Nos.2  to 6  framed

following suspicious circumstances:

 “(i) There is no  mention about the Plaintiff being disinherited by the testator in the  Will though it was proved on record that the Plaintiff was the real brother of the testator and  was serving him and also cultivating his land. The factum of Plaintiff cultivating the land stood proved from the revenue record and, therefore, covenant in the  Will that the land was  being cultivated by the Defendants was factually incorrect.

(ii) In the Will it is mentioned that it was first and last Will, whereas stand of the Defendants was that earlier also there was a Will executed by the testator.

(iii)  The name of father of  Gurnam Singh was also wrongly mentioned.

(iv) As observed by the learned Trial Court,  in the Will, it has been stated that the testator had headed and understood the  Will and thumb marked the same in the presence of witnesses and the witnesses also attested it in his presence. This statement is not required for proving the Will and, therefore, the learned Trial Court formed an opinion that such type of convenient in the Will creates a doubt about its

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authenticity. Thus the learned Trial Court was pleased to hold that the Will was stage­managed by hatching a conspiracy and that is why DW­3 alone took Nikka Singh stealthily from the village in a car and DW­4 Joginder Singh was already present at Bhawanigarh hobnobbed with the petitioner­writer and got the transaction sealed.

(v) All the  witnesses stated that  Nikka  Singh was  in good health at that time which  is  not acceptable as admittedly Nikka Singh was suffering from cancerous disease and was also a patient of T.B.

(vi) It  was  also  observed  by the learned  Trial Court that  DW­1  in his  deposition has stated that before the death of Nikka Singh he obtained  his thumb  impression on  4­5 blank papers.

(vii) The way in which the Will was executed was itself  a suspicious circumstance taken note of by the trial court to reject the said Will.”

10.4 It is submitted by Ms. Jain, learned Counsel appearing

for the original defendants that all the aforesaid circumstances

which were found to be suspicious circumstances by the

learned Trial Court, came to be dealt with by the First

Appellate Court which gave its own reasons on appreciation of

evidence. It is submitted that the First Appellate Court

observed and held as under :

“1.  Just  because  Lehna  Singh,  natural  heir of

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Bhagwan Singh, hereinafter referred as Testator, not mentioned in the will, does not make it suspicious.

2. Declaring the will to be surrounded by suspicious circumstances, mainly based on recitals in the body of the will Ex.D2, is  not well founded, as such, will is a registered document and has been duly proved by attesting witnesses, DW3 and DW4.

3. Testator would cancel Schedule will by a registered document are not recitals  in the will which would mean as suspicious circumstances surrounding the will.

4. Father’s name of Gurnam Singh described as Dewa Singh, instead of  Mehar Singh, are not such recitals in the will which would means as suspicious circumstances surrounding the will.

5.  The perusal  of the will reveals that the will when it was scribed, it was thumb marked at two places, when the will as a whole was scribed and when it was read over to Testator, in the presence of attesting witnesses.

6. Just because Testator was suffering from an illness does not mean his testamentary capacity can be questioned.

7. Nothing has been brought on file by the Respondent to show that DW3 and DW4 were in any way inimical towards him, the sworn testimony of these witnesses remains unimpeached and unshattered.

DW3 and DW4, who are respectable independent witnesses and not inimical toward Respondent.”

10.5 It is submitted by Ms. Jain, learned Advocate

appearing for the original defendants that therefore when the

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First Appellate Court recorded its own findings and reasoning

on appreciation of evidence, which was permissible as the First

Appellate Court being an appeal under Section 96 of the CPC,

the same was not required to be set aside by the High Court in

a second appeal under Section 100 of the CPC. It is submitted

that re­appreciation of the evidence while deciding the second

appeal is wholly impermissible.   Making the above

submissions, it is prayed to allow the present appeal and

quash and set aside the impugned judgment and order passed

by the High Court and restore the judgment and decree passed

by the learned First Appellate Court and consequently dismiss

the suit.

11. Mr. Amit Sharma, learned advocate appearing on

behalf of the respondent–original plaintiff while opposing the

present appeal has vehemently submitted that in the facts and

circumstances of the case and on appreciation of evidence and

having found that the findings recorded by the First Appellate

Court are perverse, the High Court has rightly interfered with

the judgment and decree passed by the First Appellate Court

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and has rightly restored the judgment and decree passed by

the learned Trial Court.

11.1 It  is further submitted by Mr. Amit Sharma,  learned

Advocate that  cogent reasons were given by  the Trial  Court

holding the Will dated 17.01.1980 as suspicious and finding

recorded by the learned Trial Court were on appreciation of the

evidence, as rightly observed by the  High  Court, the First

Appellate Court was not justified in interfering with such

findings which were recorded on appreciation of evidence.

11.2 It is further submitted by Mr. Sharma, learned Advocate

appearing on behalf of the original plaintiff that the testator, at

the time of execution of the alleged Will, was not in a position

to execute the Will as he was suffering from cancerous disease

and was also a patient of TB.

11.3 It is further submitted by Mr. Sharma, learned

Advocate appearing on behalf of the original plaintiff that even

the DW1, in his deposition, admitted that before the death of

Nikka Singh, he obtained his thumb impression on 4­5 blank

papers. It is submitted that there are  number of discrepancies

in the alleged Will, viz., though in the Will it was stated that

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land was being cultivated by the defendants, actually the

plaintiff was cultivating the land; that in the  Will it was

mentioned that  it  was the first and last Will,  whereas, even

according to the defendants, earlier also there was a  Will

executed by the testator and the name of the father of Gurnam

Singh was also wrongly mentioned. It is submitted that

therefore, as rightly observed by the learned Trial Court, the

Will was executed in suspicious circumstances and therefore

the learned  Trial  Court rightly rejected the  same Will. It is

submitted that despite the above glaring suspicious

circumstances, the First Appellate Court held the Will genuine

and therefore the High Court has rightly  interfered with the

judgment and decree passed by the First Appellate Court.

11.4 It is further submitted by Mr. Sharma, learned

Advocate appearing on behalf of the original plaintiff that the

learned  Trial  Court  was justified in  holding the  Will to be

surrounded by suspicious circumstances due to ill­health of

the testator. It is submitted that the testator was admittedly

suffering from cancerous disease and T.B. and therefore, the

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evidence of the attesting witnesses that he was in good state of

mind, was rightly ignored by the Trial Court.  

11.5 Making the above submissions, it is prayed to dismiss

the present appeal.

12. Heard the learned advocates appearing on behalf of the

original plaintiff and defendants at length. We have considered

in detail the judgment and decree passed by the Trial Court,

Judgment and order passed by the First Appellate Court and

impugned judgment and order passed by the High Court.

13. At the outset, it is required to be noted that the

learned Trial Court held the Will dated 17.01.1980, which was

executed in favour of original defendant Nos. 2 to 6,

surrounded by suspicious circumstances and therefore did not

believe the said Will.

13.1. The suspicious circumstances which were considered

by  the  learned Trial  Court  are  narrated/stated hereinabove.

On re­appreciation of evidence on record and after dealing with

each alleged suspicious circumstances, which were dealt with

by the learned Trial Court, the First Appellate Court by giving

cogent reasons held the Will genuine and consequently did not

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agree with the findings recorded by the learned Trial Court.

However, in Second Appeal under Section 100 of the CPC, the

High Court, by impugned judgment and order has interfered

with the Judgment and Decree passed by the First Appellate

Court. While interfering with the judgment and order passed

by the first Appellate Court, it appears that while upsetting the

judgment and decree passed by the First Appellate Court, the

High Court has again appreciated the entire evidence on

record, which in exercise of powers under Section 100 CPC is

not  permissible.  While  passing  the  impugned  judgment  and

order, it appears that High Court has not at all appreciated the

fact that the  High  Court was deciding the Second Appeal

under Section  100 of the  CPC and  not first appeal under

Section 96 of the CPC. As per the law laid down by this Court

in a catena of decisions, the jurisdiction of  High  Court to

entertain second appeal under Section 100 CPC after the 1976

Amendment, is confined only when the second appeal involves

a substantial question of law. The existence of ‘a substantial

question of law’ is a  sine qua non  for the exercise of the

jurisdiction under Section 100 of the CPC. As observed and

held  by this  Court in the case  of  Kondiba  Dagadu Kadam

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(Supra), in a second appeal under Section 100 of the CPC, the

High Court cannot substitute its own opinion for that of the

First Appellate Court, unless it finds that the conclusions

drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable

law;                               OR  

(ii) Contrary to the law as pronounced by the Apex Court; OR

(iii)  Based on in­admissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that

if First Appellate Court has exercised its discretion in a  judicial

manner, its  decision cannot  be recorded as  suffering from an

error either of law or of procedure requiring interference in

second appeal. It is further observed that the Trial Court could

have decided differently is not a question of law justifying

interference in second appeal.  

14. When a substantial question of law can be said to have

arisen, has been dealt with and considered by this Court in the

case of  Ishwar Dass Jain (Supra). In the aforesaid decision, this

Court has specifically observed and held :

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“Under Section 100 CPC, after the 1976 amendment, it is essential for the  High  Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible  evidence  which  if it  was  omitted,  an opposite  conclusion was possible. In either  of the above situations, a substantial question of law can arise.”

15. Applying the law laid down by this Court in the

aforesaid decisions to the facts of the case on hand, we are of the

opinion that the  High  Court has erred in re­appreciating the

evidence on record in the second appeal under Section 100 of the

CPC. The High Court has materially erred in interfering with the

findings recorded by the First Appellate Court, which were on re­

appreciation of evidence,  which  was permissible by the First

Appellate  Court  in exercise of  powers under Section 96 of the

CPC. Cogent reasons, on appreciation of the evidence, were given

by the First Appellate Court. First Appellate Court dealt with, in

detail, the so­called suspicious circumstance which weighed with

the learned Trial Court and thereafter it came to the conclusion

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that the Will, which as such was a registered Will, was genuine

and do not suffer from any suspicious circumstances. The

findings recorded  by the  First  Appellate  Court  are reproduced

hereinabove. Therefore,  while  passing the impugned judgment

and order, the High Court has exceeded in its jurisdiction while

deciding the second appeal under Section 100 CPC.

15.1 As observed hereinabove and as held by this Court in a

catena of decisions and even as per Section 100 CPC, the

jurisdiction  of the  High  Court to entertain the second  appeal

under Section 100 CPC is confined only to such appeals which

involve a substantial question of law.  On going through the

substantial questions of law framed by the High Court, we are of

the opinion that the question of law framed by the High Court

while deciding the second appeal, cannot be said to be

substantial questions of law at all. The substantial questions of

law framed by the High Court are as under :

“(i)  Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?

(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?”

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The aforesaid cannot be said to be substantial questions of law at

all. In the circumstances, the impugned judgment and order

passed by the  High Court  cannot  be  sustained and  the  same

deserves to be quashed and set aside. At this stage, decision of

this  Court in the  case  of  Madamanchi  Ramappa  v.  Muthaluru

Bojappa, AIR 1963 SC 1633, is required to be referred to.  

In the aforesaid decision, this Court has observed and held as

under:  

“Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It   may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which

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is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.”

16. Therefore, we are of  the opinion that this  is a  fit  case to

interfere with the impugned judgment and order passed by the

High  Court,  as,  as  observed  hereinabove, the  High  Court  has

exceeded in its jurisdiction,  while allowing the second  appeal

under Section 100 of the CPC.

17. In view of the above and for the reasons stated above, we

allow this appeal, set aside the impugned Judgment and Order

passed by the High Court dated 27.11.2007 passed in Civil

Regular Second Appeal No.2191 of 1985 and restore the

Judgment and Order passed by the learned District Judge,

Sangrur dated 06.06.1985   passed in Civil Appeal No.27 of

29.02.1983 and consequently dismiss the suit preferred by the

respondent herein–original plaintiff. No costs.

18. Before parting with the present  judgment,  we remind the

High Courts that the jurisdiction of the High Court, in an appeal

under Section 100 of  the CPC,  is strictly confined to the case

involving substantial question of law and  while deciding the

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second appeal under Section 100 of the CPC, it is not permissible

for the High Court to re­appreciate the evidence on record and

interfere with the findings recorded by the Courts below and/or

the First  Appellate  Court  and  if the  First  Appellate  Court  has

exercised its discretion in a judicial manner, its decision cannot

be recorded as suffering from an error either of law or of

procedure requiring interference in Second Appeal. We have

noticed and even as repeatedly observed by this Court and even

in the case of Narayanan Rajendran v. Lekshmy Sarojini,  (2009)

5 SCC 264, despite the catena of decisions of this Court and even

the  mandate  under  Section 100 of the  CPC, the  High  Courts

under Section 100 CPC are disturbing the concurrent findings of

facts and/or even the  findings recorded by  the First Appellate

Court, either without formulating the substantial question of law

or on framing erroneous substantial question of law.  

Therefore, we are constrained to observe as above and

remind the High Courts the limitations under Section 100 of the

CPC and again hope that High Courts would keep in mind the

legal position before interfering in Second Appeal under Section

100 of the Code of Civil Procedure.

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……………………………………J. (L. NAGESWARA RAO)

……………………………………J. (M. R SHAH)

New Delhi; March 13, 2019.

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