Gurnam Singh (D) by Lrs. & Ors. vs Lehna Singh (D) by Lrs.

HELD: 1.1 While interfering with and upsetting the judgment and order passed by the First Appellate Court, the High Court has appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. 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. 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. 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: Contrary to the mandatory provisions of the applicable law; or Contrary to the law as pronounced by the Apex Court; or Based on in-admissible evidence or no evidence. 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. The Trial Court could have decided differently is not a question of law justifying interference in second appeal. [Para 13.1] [1094-H; 1095-A-F]

1.2 Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. 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.[Para 15] [1096-D-F]

1.3 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. The question of law framed by the High Court while deciding the second appeal in the present case, cannot be said to be substantial questions of law at all. Therefore, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. [Para 15.1] [1096-F-G; 1097-B]

Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 : [2000] 4 Suppl. SCR 722 ; Madamanchi Ramappa v. Muthaluru Bojappa AIR 1963 SC 1633 : [1964] SCR

673 – relied on.

2. 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, the High Courts are reminded the limitations under Section 100 of the CPC and it is hoped that High Courts would keep in mind the legal position before interfering in Second Appeal under Section

100 of CPC. [Para 18] [1098-D-E]

Panchugopal Barua v. Umesh Chandra Goswami

(1997) 4 SCC 713 : [1997] 2 SCR 12 ; Kondiba

Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 : [1999] 2 SCR 728 ; Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264 : [2009] 2 SCR 71 – referred to.