Dismissed

Prem Swaroop v. Ram Narayan

Rajasthan HC16 Nov 2022CSA/33/2012

Case brief

AI extract

What is this about?

In this second appeal regarding a civil suit for declaration of a will, the High Court dismissed the appeal. Finding no substantial question of law, the Court held that the lower courts did not err in rejecting the plaintiff's claims due to lack of evidence establishing the will as forged.

What did the court decide?

The second appeal filed under Section 100 CPC is dismissed as there is no substantial question of law involved.

Prem Swaroop Vs Ram Narayan — Succession and Inheritance | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 33/2012

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Prem Swaroop S/o Shri Khem Chand, aged 75 years, R/o Lala Ghat, Koli Pada, Ladpura, Kota

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----Appellant/Plaintiff

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Versus

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Ram Narayan S/o Shri Khem Chand, R/o Lala Ghat, Koli Pada, Ladpura, Kota

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----Respondent/Defendant For Appellant(s) : Mr. Amit Jindal For Respondent(s) :

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgment

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16/11/2022

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Appellant-plaintiff has preferred this second appeal under Section 100 of the Code of Civil Procedure, feeling aggrieved by the judgment and decree dated 17.10.2011 passed in Civil Regular Appeal No.42/2006 by the Court of Additional District Judge No.1, Kota, affirming the judgment and decree dated 14.07.2006 passed in Civil Suit No.19/2002 by the Court of Additional Civil Judge (Junior Division) No.5 (North), Kota, whereby and whereunder his civil suit for declaration in respect of the will in question has been dismissed on merits.

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Heard counsel for appellant and perused the impugned judgments.

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It is not in dispute that plaintiff and defendant both are brothers and plaintiff instituted present civil suit, seeking declaration of the will dated 20.06.1980 alleged to be executed by

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(2 of 4)

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[CSA-33/2012]

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the father Khem Chand in favour of defendant Ram Narayan and will in respect of one room and one kitchen which is undisputedly in possession of defendant.

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Both courts have observed that plaintiff could not adduce sufficient evidence to show that the will in question is a forged and fabricated document. It has been observed that plaintiff admits in his evidence that even before the execution of the alleged will, the properties under the will, that is room and kitchen, were constructed by defendant himself and he was in possession thereof.

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As far as signature of father Khem Chand on the will in question is concerned, the same has been found genuine and no concrete evidence was adduced by plaintiff to show that signatures of father either do not match with his admitted signatures or forged. Needless to say that as per Section 101 of the Evidence Act, the burden to prove heavily lies upon the plaintiff when he has instituted suit challenging the will to be prepared as forged or fabricated document. Per contra, the defendant has produced one witness of the will to prove signature of executant and execution of will as required under Section 68 of the Evidence Act.

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This Court is of opinion that due to lack of evidence of plaintiff, both courts have not committed any illegality in dismissing the plaintiff’s suit. The fact findings of courts below have been recorded after due appreciation/re-appreciation of evidence on record and the same may not been said to be suffered from any perversity, or without jurisdiction or dehors to the pleadings of parties, or against the settled proposition of law.

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(3 of 4)

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[CSA-33/2012]

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In this view of matter such findings do not give rise to any substantial question of law.

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It is settled proposition of law that High Court while exercising its jurisdiction under Section 100 of CPC is not required to re-appreciate the entire evidence on record afresh and to draw its own finding other than the fact finding recorded by courts below, unless the fact findings of two courts below are suffer from misreading/non-reading of evidence. The fact finding, even if, is incorrect is not required to be interfered with in second appeal. The substantial questions of law as suggested in the memo of appeal are essentially questions of facts, which require reappreciation of evidence. The record of present appeal goes to show that appellant has not taken steps to serve notices upon respondent as many as for ten years.

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The Hon’ble Supreme Court in case of State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637] , has held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

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“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the

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(4 of 4)

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[CSA-33/2012]

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Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]”

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The Hon’ble Supreme Court in case C. Doddanarayan

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Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659] , has observed that where two courts have reached a finding which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC.

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It is a trite law that involvement/formulation of substantial question of law is sine quo non to entertain the second appeal and since there is no substantial question of law involved in the present second appeal, hence the same is bereft of merits. As a result, the present second appeal is hereby dismissed. There is no order as to costs.

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All other pending application(s), if any, stand(s) disposed of.

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(SUDESH BANSAL),J

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SACHIN/94

Prem Swaroop v. Ram Narayan

Case brief

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Prem Swaroop v. Ram Narayan

Case brief

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