9911796707
TMI Blog2022 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff on the ground of contradiction and inconsistencies in the evidence. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court. The questions raised in High Court, did not meet the tests laid down by this Court for holding that the questions are substantial questions of law. We are constrained to hold that there was no question of law, let alone any substantial question of law, involved in the Seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff Chandrabhan shifted to a nearby village, from where he managed the properties left by Baliram. The Original Defendant No. 2 Champabai is the first wife of the Original Plaintiff, Chandrabhan. In 1979, the Original Defendant No. 1, Yamunabai, wife of Baliram purportedly gifted the suit properties to the Original Defendant No. 2 Champabai, wife of the Original Plaintiff. 8. On 8th May 1979, the Original Plaintiff filed Regular Civil Suit No. 198 of 1979, in the Court of the Civil Judge, Senior Division, at Beed, Maharashtra against the Original Defendant No. 1 being Yamunabai, the wife of Baliram and the Original Defendant No. 2 being Champabai, his own first wife praying for declaration of ownership of the suit properties, perpetual injunction and other reliefs. The Original Defendants filed their written statements in the suit contending that the Original Plaintiff had not been adopted by Baliram. 9. The Respondent Nos. 1 to 4 being the Original Defendant Nos. 3 to 6 in the suit, filed their written statement in the suit supporting the stand of the Original Defendant Nos. 1 and 2. 10. The Original Plaintiff examined himself as well as five other witnesses, including Prabhu Yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e record as successor of Baliram and the name of the Plaintiff was not entered as successor of Baliram? (III) Whether the first appellate Court has committed error in not considering the circumstance that the cooperative credit society could not have given loan to the Plaintiff on the lands left behind by Baliram as Plaintiff was not shown as owner in the revenue record and further there is the circumstance that it is Defendant No. 1 who had repaid the loan? (IV) Whether the first appellate Court has committed error in not giving due weight to the circumstance like Plaintiff never used name of Baliram as his father anywhere and he continued to use the name of his natural father Rambhau? (V) Whether due to absence of specific pleadings with regard to particulars of adoption and due to inconsistencies in the evidence of the witnesses it can be said that there is sufficient evidence to prove the factum of adoption? 17. We find there were no questions of law before the High Court, not to speak of substantial questions of law. 18. Admittedly, evidence was adduced at the trial. The Original Plaintiff examined himself as witness and examined five other witnesses. The Original Plaintiff ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original Plaintiff as stated in her evidence. Champabai had stated that the Original Plaintiff, Shivganga and her were residing together. The use of the middle name, which is the father's name, as Baliram instead of Rambhau after Chandrabhan, gave rise to inference of adoption of Chandrabhan by Baliram. 23. It is well settled that a Second Appeal Under Section 100 of the Code of Civil Procedure, 1908 (CPC) can only be entertained on a substantial question of law. In H.P. Pyarejan v. Dasappa (Dead) by LRs. and Ors.(2006) 2 SCC 496, this Court held: 16. In our opinion, therefore, the judgment of the High Court suffers from serious infirmities. It suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves reappreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction Under Section 100 Code of Civil Procedure should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline. 27. The guidelines to determine what is a substantial question of law within the meaning of Section 100 Code of Civil Procedure has been laid down by this Court in Sir Chunnilal v. Lal Mehta Sons v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314. 28. In Sir Chunilal v. Mehta and Sons (supra), this Court agreed with and approved a Full Bench judgment of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju and Ors. AIR 1951 Mad 969 which laid down the principles for deciding when a question of law becomes a substantial question of law. 29. In Hero Vinoth v. Seshammal (2006) 5 SCC 545, this Court followed Sir Chunilal v. Mehta Sons (supra) and other judgments and summarized the tests to find out whether a given set of questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law raised in the case is substantial would 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. 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 the question raised is palpably absurd, the question would not be a substantial question of law. 32. To be 'substantial', a question of law 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 it are concerned. To be a question of law involving in the case there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously. 35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
