J U D G M E N T
The appeal was heard on admission and reserved for orders on 23/10/2024.
2. This second appeal has been filed by the appellant s/plaintiffs who have lost in both the Courts.
3. This appeal under Section 100 of CPC has been preferred being aggrieved by the judgment and decree dated 18/07/2023 passed by learned XXV District Judge, Bhopal in Regular Civil Appeal No.52/2022 affirming the judgment and decree dated 29/04/2019 passed by the Third Civil Judge Class -II, Bhopal in Civil Suit No.251-A/2017.
4. The facts of the case are that the plaintiffs Smt. Suraj Bai and others filed a suit for permanent injunction and declaration regarding suit property i.e. house situated on Plot No.110 at Neelkanth Colony Idgah Hills, Ward No.5, Tehsil Huzur District Bhopal. The said Civil Suit No. 251-A/2017 vide judgment dated 29/04/2019 dismissed by the learned trial Court holding that the other suit property was purchased out of the income of the ancestral
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property and also holding that suit property was not a joint family property in which plaintiffs have 1/3 share but the suit is maintainable without seeking relief of partition or declaration of the Will as forged.
5. Being aggrieved by the said judgment and decree, plaintiffs filed First Appeal No. 52/2022 before learned XXV District Judge, Bhopal which was dismissed vide judgment and decree dated 18/07/2023. Against which this second appeal is before this Court on the ground that the learned trial Court failed to do its duty and committed error in not asking the defendants to prove Will dated 16/12/2002. In fact, learned First Appellate Court should have also permitted the plaintiffs to amend the plaint and challenge the Will but that was not done.
6. Learned counsel for the appellants/plaintiffs relied on the judgment of this Court passed in Vijay Singh Yadav & others vs. Smt. Krishna Yadav & others (W.P.No.2301 of 2024) dated 17/02/2024 by referring paragraphs 5, 6 and 16 to 25 wherein it is held that Will cannot be acted upon unless it is duly proved and decided by the competent authority.
7. On the other hand, learned counsel for the respondent submitted that this Writ Petition order has been stayed by the Hon'ble Division Bench of this Court in W.A.No.667 of 2024 (Vijay Singh Yadav & others vs Smt. Krishna Yadav and others) vide order dated 01/07/2024 .
8. Learned counsel for the appellants has also relied on the judgment of Ramesh Verma (dead) through Legal representatives vs. Lajesh Saxena (dead) by legal representatives & another, (2017) 1 SCC 257 (para-13) regarding proof of Will.
9. Heard learned counsel for the parties and perused the record.
10. In the present appeal also, appellants/plaintiffs filed I.A.No.19995 of
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2023, an application under Order 6 Rule 17 of CPC for amendment of plaint with regard to challenge of Will. Therefore it is seen that appellants/plaintiffs were not sure about the legal position and not sure to challenge the Will in this case. Hence, he first filed interlocutory application to challenge the Will but later-on, withdrew it thereby highlighting delima and confusion.
11. After considering the arguments and the facts as mentioned above, it is seen that no interference can be made in dismissal of the suit. Therefore, it is seen that all evidence have been considered by both the Courts and all legal aspects have also been considered by the trial Court.
12. On the basis of the records of both the Courts, there is no sufficient ground to admit this appeal. All facts have been considered and no ground or substantial question of law exists on which this second appeal can be admitted.
1 3 . Even otherwise, the jurisdiction of this Court to interfere with the findings of fact under Section 100 of the Code of Civil Procedure is well defined by catena of decisions of the Supreme Court. This Court cannot interfere with the finding of fact until or unless the same is perverse or contrary to material on record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and Antoher, (2012) 8 SCC 148, D.R. D.R Rathna Murthy v. Ramappa ., (2011) 1 SCC
158 Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4 SCC 264] The concurrent findings of fact recorded by the courts below are based on meticulous appreciation of evidence on record which by no stretch of imagination can be said either to be perverse or based on no evidence.
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(AVANINDRA KUMAR SINGH)
JUDGE
14. In the result, this Court is of the considered opinion that the trial court and first appellate Court on meticulous appreciation of evidence available on record gave findings which cannot be interfered. No substantial question of law arise in this appeal. Hence, it is dismissed at admission stage itself. mc
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