Court No. - 42
Case :- SECOND APPEAL No. - 165 of 1997 Appellant :- Kapil Deo Singh & Others Respondent :- Rajendra & Others Counsel for Appellant :- V.D. Ojha
Hon'ble Ved Prakash Vaish,J.
1. Sri Pranav Ojha, learned counsel for the appellants is present.
2. This is plaintiffs' Second Appeal under section 100 of Code of Civil Procedure (in short, 'C.P.C.). The appellants/plaintiffs instituted an original suit bearing no. 238 of 1990 against the respondents for cancellation of Will dated 7.2.1966 executed by Sri Surya Nath Singh (deceased) in favour of the respondents. The suit was contested by the respondents (defendants) by filing written statement. The defendants took a plea that the appellant has no right to file the suit. It was stated by the defendants that the deceased Surya Nath Singh was married with Smt. Karampati and respondents/defendants were born from the said wedlock and appellants/plaintiffs forged the Will dated 29.10.1928. On the pleadings of the parties, learned trial court framed the following six issues :-
1- D;k olh;rukek nLrkost fnukad 7-2-66 fujLr gksus ;ksX; gS\ 2& D;k nkokgkt fooU/ku ds fl)kUr ls ckf/kr gS\ 3& D;k nkok gktk dkyckf/kr gS\ 4& D;k nkok gktk nQk 34 fo-v-vf/k- ls ckf/kr gS\ 5& D;k okn dk ewY;kadu de fd;k x;k gS vkSj iznRr U;k; 'kqYd vi;kZIr gS\ 6& vU; vuqrks"k\
3. The evidence of both the parties were recorded by the learned trial court. After considering the pleadings of the parties and evidence adduced by the parties, the suit was dismissed by the learned Munsif, Mau vide judgment and decree dated 10.12.1991.
4. Aggrieved by the said judgment, the appellants filed a Civil Appeal No. 2 of 1992, which was dismissed by Ist Additional District Judge, Mau vide judgment dated 8.11.1996.
5. Feeling aggrieved by the said judgment, the appellants/plaintiffs preferred the present appeal.
6. Learned counsel for the appellants urges that the courts below have not looked into the evidence and erred in holding that the respondents are sons of late Surya Nath Singh alias Sarju. He also submits that subsequent Will dated 7.2.1966 executed by Surya Nath Singh is not a valid Will because the respondents failed to disclose the names of their grand-father and maternal uncle. Counsel for the appellants further submits that the marriage of Surya Nath Singh with Karanpati can not be held to be valid in the absence of any proof.
7. I have given my thorough consideration to the submissions made by learned counsel for the appellants and also carefully perused the material available on record.
8. The submission of learned counsel for the appellants appear to be fallacious and deserves to be rejected. On the specific query made, learned counsel for the appellants could not point out as to why the Will dated 7.2.1966 is not valid. The onus was on the appellant to prove that the will dated 7.2.1966 is not valid or illegal.
9. Similarly, learned counsel for the appellants could not point out as to why the marriage of the deceased Surya Nath Singh with Karampati is not valid. Moreover, the validity of marriage between the deceased Surya Nath Singh and Karampati was not the subject matter of suit. Merely because the respondents have failed to disclose the names of grand-father and maternal uncle, it can not be said that the respondents are not sons of deceased Surya Nath Singh.
10. The submissions made by learned counsel for the appellants do not give rise to substantial question of law. This Court will not sit as if it is considering a regular first appeal so as to examine the entire matter on facts and law both. The scope of second appeal under section 100 C.P.C. is very limited and this Court shall enter upon only when there is a substantial question of law and not otherwise.
11. What is 'Substantial Question of Law' is no more res integra in view of law laid down by the Hon'ble Supreme Court in the case of 'Santosh Hazari versus Purushottam Tiwari' (2001) 3 S.C.C. 179. The same has been followed in the case of 'Thiagarajan and others versus Venugopalswamy B. Koli and others', AIR 2004 S.C. 1913, and in the case of 'Govindaraju versus Mariamman' (2005) 2 S.C.C. 500.
12. A similar view was taken by the Hon'ble Supreme Court in another case titled as 'Vijay Kumar Talwar versus Commissioner of Income Tax, Delhi' (2011) 1 S.C.C. 673 and Union of India versus Ibrahim Uddin and another (2012) 8 S.C.C. 148 and 'State of U.P. Versus Shanti Devi and another' 2013 (120) RD 494.
13. The Supreme Court in the case of 'State Bank of India and others Vs. S.N. Goyal', AIR 2008 SC 2594 has laid down the law with respect to 'Substantial Questions of Law'. The relevant part of the judgment of the Supreme Court is extracted herein below:
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lies between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance "
14. The Supreme Court in the case of 'Union of India vs. Ibrahim Uddin and another' (Supra) has reiterated the same principles.
15. In the instant case, both the courts below after considering the pleadings of the parties and evidence adduced by both the parties recorded concurrent finding of fact. Learned counsel for the appellants could not point out any manifest error or illegality in the impugned judgments which may give rise to any substantial question of law warranting adjudication by this Court. Since no substantial question of law is shown to have arisen, the appeal deserves to be dismissed at this stage itself.
16. Accordingly, the second appeal is dismissed.
(Ved Prakash Vaish, J.) Order Date :- 26.2.2018 SU.