ORDER
A.K. Shrivastava, J.
1. This second appeal has been filed at the instance of plaintiff whose suit has been dismissed by the learned trial Court and the appeal filed by him before the learned first appellate Court, has also been dismissed.
2. Plaintiff-Amar Bahadur Singh filed suit for injunction and for declaration that he is the owner having half share in the suit property. The suit property is a house, description whereof has been mentioned in the plaint.
3. The pleadings of the plaintiff in the plaint is that vide partition deed dated 21/6/1972 there was a partition in the family and by this document of partition plaintiff-Amar Bahadur Singh and defendant No. 2Sheetala Prasad Singh who are real brothers partitioned the property mentioned in the partition deed and it was agreed between the plaintiff and defendant No. 2 that the property shall be sold and the sale price will be divided in two shares equally. However, the suit property which is a house could not be sold and, therefore, the suit property is the joint property of plaintiff and defendant No. 2 in which he is having share.
4. Defendant No. 1-Devendra Singh who is the son of defendant No. 2 filed written statement, but defendant No. 2-Sheetala Prasad Singh did not file any written statement. In the written statement filed by defendant No. 1-Devendra Singh, it has been specifically pleaded by him in paras 1 to 3 that the suit property is not the joint Hindu family property of the parties, indeed, it is his self-acquired property. In para-5 of the written statement, he has specifically pleaded that suit property was purchased by defendant No. 1 from his own earning and from the funds gifted to his wife by her parents and, therefore, the plaintiff has no right, title and interest in the suit property.
5. Learned trial court after framing necessary issues and after recording the evidence of the parties, came to hold that the suit property is not the property of joint Hindu family but the same is self- acquired property of defendant No. 1-Devendra Singh and eventually dismissed the suit. The appeal which was filed by plaintiff has been dismissed by the impugned judgment and decree by learned first appellate Court.
6. In this manner, the present second appeal has been filed by the plaintiff.
7. It has been vehemently contended by learned senior counsel for the appellant that the two Courts below by misconstruing Ex.D/1 which is an acknowledgment of earlier partition, gave finding that the suit property is not the property of HUF and if that would be the position, there is substantial question of law involved in this appeal The further contention of learned senior counsel is that if document Ex.P/1 dated 21/6/1972 is considered in proper perspective, it would reveal that it is only an acknowledgment of the earlier partition and, therefore, it does not require any registration under Section 17 of the Indian Registration Act, 1908.
8. The alternative submission of learned senior counsel is that if the document Ex.P/1 is taken to be a partition deed and even if it is not registered, it can be read and used for co-lateral purpose under Section 49 of the Registration Act, in order to ascertain that plaintiff is in possession of the suit property.
9. Another contention of learned senior counsel is that defendant No. 1-Devendra Singh failed to establish that the suit property is his self- acquired property and the source to purchase the suit property has also not been disclosed and proved by him and there is no connecting evidence in that regard and, therefore, two Courts below erred in substantial error of law in holding that the suit property is the self acquired property of defendant No. 1.
10. Having heard learned senior counsel for the appellant, I am of the view that this appeal deserves to be dismissed.
11. On going through document Ex.P/1 which, according to learned senior counsel, is an acknowledgment of earlier partition, it is gathered that in fact this document is a partition deed and not the acknowledgment of the earlier partition. The opening lines of this document are that in presence of the persons whose names are mentioned in this document, Amar Bahadur Singh (plaintiff) and Sheetala Prasad Singh (defendant No. 2) has partitioned the property, the description whereof has been mentioned in the document. Therefore, for no rhyme and reason this document could be said to be a document of acknowledgment of previous partition. Apart from this, it is plaintiff’s own case in the plaint that vide partition deed dated 21/6/1972 the property of HUF was partitioned and it is not his case that document Ex.P/1 is a document of acknowledgment, acknowledging the earlier partition. It is well settled in law that a new case based on facts cannot be made out in the appeal (see C.Mackertich v. Steuart & Co. Ltd. ).
12. The question that whether for co-lateral purpose Ex.P/1 can be read. The contention of learned Counsel is that after execution of document Ex.P/1 since plaintiff is also possessing the suit property, therefore, Ex.P/1 can be read and used for co-lateral purpose in order to ascertain his possession. It be seen that there is no document on record in order to show that Ex.P/1 was ever implemented. The plaintiff did not file any Municipal record in order to show that suit property is jointly owned or even after the execution of Ex.P/1, in the Municipal record, it continued in the name of original owner. The plaintiff is real brother of defendant No. 2 and uncle of defendant No. 1. Though in the written statement it has been denied by defendant No. 1 that plaintiff is residing in the suit house nor Sheetal Prasad (defendant No. 2) is residing in it. But if the plaintiff was permitted to reside in the suit house by defendant No. 1, ipso facto would not confer any right to him in the suit property.
13. So far as the contention of learned senior counsel that defendant No. 1 failed to prove that the suit property is his self-acquired is concerned, suffice it to state that there is specific pleading of defendant No. 1 in para-5 of his written statement that from his own earning and from the funds given by his father-in-law to his wife which is her Stridhan, the plot was purchased on which the house was constructed and which is the disputed property. In order to substantiate the stand, registered sale deed Ex.D/1 executed by Ran Bahadur in favour of Devendra Singh (defendant No. 1) dated 2nd August, 1965 has been placed on record which shows that the suit property was purchased by Devendra Singh. (defendant No. 1). Unfortunately, Ran Bahadur could not be produced as witness, since he already died when the evidence was recorded but the above said sale deed Ex.D/1 has been proved by Devendra Singh (defendant No. 1) by his own statement as well as by examining D.W.3-Surendra Singh who is the son of Ran Bahadur. In his statement Surendra Singh has proved the signature of his father Ran Bahadur on the sale deed Ex.D/1. Thus, the sale deed executed in favour of defendant No. 1 has been duly proved. On bare perusal of the evidence of Devendra (D.W.1) it is gathered that at the time of his marriage, according to the custom, some cash money was given to him and to his wife by the family members of his wife. Apart from this money he was also doing tution privately and from all these funds he purchased the suit property. Thus, the source of income to purchase the plot on which suit house is built, has also been proved by defendant No. 1.
14. The findings arrived at by learned two Courts below are pure findings of fact and cannot be interfered in the second appeal, even if they are held to be grossly erroneous. In this regard the decision of Supreme Court V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr. and Baidyanath Bhattacharya and Anr. v. S. Karmakar (2000) 9 SCC 505 may be seen.
15. In the latest pronouncement of the Supreme Court Gurdev Kaur and Ors. v. Kaki and Ors. , it has been held that even before the amendment of 1976 in CPC, the scope of interference under Section 100, CPC was limited and did not extend to interference with the concurrent findings of fact if they are on the basis of cogent evidence. According to the Apex Court, the amendment of 1976 clearly indicates that the legislature never intend the second appeal to become a third trial of facts.
16. The word substantial question of law has not been defined in the Code of Civil Procedure but the said expression has been used in the Constitution. The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the right of the parties and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by Privy Council or by Federal Court or is not free from difficulty or calls for discussion of alternative views. 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 that the plea raised is palpably absurd the question would not be a substantial question of law (see Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. ). The same principle has been reiterated by the Apex Court in a later decision Govindaraju v. Mariamman .
17. No exhaustive list that what are the substantial questions of law can be given but the basic ingredients constituting a substantial question of law has been enumerated in Gurudev Kaur (supra) and Govindaraju (supra). If a case would fall under the following circumstances, it may raise a substantial question of law:
(i) The question of law on which there is conflict of judicial opinion and not finally decided by Supreme Court, Privy Council ;or by Federal Court (see Sir Chunilal v. Mehta (supra) );
(ii) The finding which has been arrived at by Courts below without any evidence on record (see Sree Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. and Rohni Prasad and Ors. v. Kasturchand ;
(iii) Inference from or legal effect of proved or admitted facts ;
(iv) Disregard or non-consideration of relevant or admissible evidence (see Sri Chand Gupta v. Gulzar Singh and Anr. and Ishwar Dass Jain v. Sohanlal );
(v) Taking into consideration irrelevant or inadmissible evidence (see Santakumari and Ors. v. Lakshmi Amma Janaki Amma (, Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan AIR 1999 SC 3067 and Kondiba Dagadu Kadam and Ishwar Dass Jain (Supra));
(vi) Misconstruction of evidence or document (see Sundra Naicka Vadiyar v. Ramaswami Ayyar and Sukhdei V. Bairo ;
(vii) Interpretation or construction of material documents (see Kondiba Dagada Kadam(supra) and Mehrunnisa v. Visham Kumari ;
(viii) A question of admissibility of evidence (see Kondiba Dagada Kadam(supra) and Banarsi Das v. Brig Maharaja Sukhjit Singh and Anr. AIR 1998 SC 179);
(ix) Disposal of appeal by first appellate Court by allowing application to adduce additional evidence by one party without giving opportunity of rebuttal to the other party;
(x) New plea on pure question of law going to the root of the matter;
(xi) Rejection of admissible evidence on flimsy ground (see Major Singh v. Rattan Singh and Ishwar Dass Jain (Supra));
(xii) Gross miscarriage of justice (see Rohini Prasad (supra) and Mohd. Yunus v. Gurubux Singh (1995) Suppl. (1) SCC 418)
(xiii) Biased approach of the Courts below (see Banarsi Dass (supra) ;
(xiv) Reversal of finding by first appellate Court without evidence (see Mehrunnisa(supra) );
(xv) Perverse finding recorded by the Courts below (see State of Rajasthan V.Harphool Singh and Rajappa Hanamantha Ranoji SV. Mahadev Chkannabasappa and Ors. );
(xvi) Inconsistent and contradictory finding of the Court (see Harphool Singh (supra) );
(xvii) When appeal is decided only on equitable ground and without application of mind (see MD.Hadi Hussain v. Abdul Hamidl Choudhary and Ors. );
(xviii) When the Court has no jurisdiction (see Kondiba Dagada Kadam (supra)).
18. Similarly following are some instances which cannot be said to be the substantial question of law:
(i) Where the question has been already decided by Privy Council, or by Federal Court or by the Supreme Court or even by a larger Bench of the High Court (See Kondiba Dagada Kadam (supra));
(ii) Concurrent findings of fact recorded by Courts below on correct appreciation of evidence (see M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar and Mohd. Abdul Muqtedar v. Shaikh Fakruddin and Ors. (2000) 9 SCC 384) ;
(iii) The finding of fact recorded by first appellate Court on cogent evidence and material on record (see Smt. A.N. Kapoor v. Smt. and Guro v. Atma Singh and Ors. );
(iv) Where on facts and evidence two views are possible (see Kondiba Dagada Kadam(supra));
(v) When new case is sought to be made in second appeal not going to the root of the matter (see Babu Ram v. Indra Pal Singh and K. Chelliah Servai v. P. Muthusami Servai 1995 Suppl.(1) 202);
(vi) When new plea is raised which is either based on fact or on mixed question of law and fact (see Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. and Ors. AIR 1946 PC 97 and Smt. Chander Kali Bail and Ors. v. Jagdish Singh Thakur and Anr. );
(vii) When question sought to be raised is too general and omnibus in nature; or mere question of law (see K.C. Mathew & Sons and Anr. v. A. Sulaikha Beevi and Ors. );
(viii) Where inference as to finding of fact has been drawn on the basis of evidence and material on record (see Thimmaiah and Ors. v. Ningamma and Anr. );
(ix) Where the finding of fact has been attacked on the ground that it is erroneous or even grossly erroneous (see Ramchandra Ayyar and Anr. (supra) and Baidyanath Bhattacharya and Ors. (supra));
(x) Where the High Court feels that the reasoning given by the first appellate Court was not proper (see Arumugham v. Sundarambal and Anr. ).
19. Apart from the above said illustrations that what are the substantial questions of law and what are not under Section 103, CPC the legislature has given power to this Court while hearing a second appeal to determine any issue necessary for the disposal of the appeal:
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court; or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100, CPC.
Thus, it is clear on bare perusal of Section 103, CPC that this section appears to be proviso and explanation to Section 100 and empowers the High Court to determine any issue on two contingencies:
(i) When determination of such issue is necessary for the disposal of the appeal and the evidence on record is sufficient and yet it has not been decided either by the trial Court or by the lower appellate Court or by both the Courts; or
(ii) When an issue has been wrongly determined either by the trial Court or by the lower appellate Court or by both the Courts by reason of a decision on substantial question of law.
20. In the present case, no case has been made out even to exercise powers conferred to this Court by legislature under Section 103, CPC and, therefore, those powers also cannot be exercised. In the instant case the issues have been rightly determined and there is no such issue the determination of which has not been decided either by the trial Court or by the first appellate Court.
21. No perversity or illegality has been pointed in the impugned judgment and decree. No substantial question of law is involved in this second appeal and the same is hereby dismissed summarily.