Case Note & Summary
The case involves a second appeal filed by the defendant, Subhas Marutirao Yadav, against the concurrent judgments of the trial court and the first appellate court decreeing the suit for declaration of title and possession in favor of the plaintiffs/respondents. The plaintiffs, Savakka, Ningavva, Basavva, and Hanamanthappa, filed O.S.No.35/2007 before the III Addl. Civil Judge and JMFC, Hubli, claiming to be the Class II legal heirs of deceased Yallappa Ningappa Doddamani and absolute owners of the suit property. They alleged that the defendant colluded with revenue authorities and created a forged will dated 21.7.1999 purportedly executed by Smt. Marevva, and got his name entered in the record of rights in 2006, taking illegal possession. The defendant denied the plaint averments. The trial court framed issues, including whether the plaintiffs proved they are Class II heirs, whether the will was forged, and whether the plaintiffs are absolute owners. After trial, the trial court decreed the suit in part, declaring the plaintiffs as owners and directing the defendant to hand over possession within three months, but refused mesne profits. The first appellate court in R.A.No.124/2013 confirmed the decree. The defendant filed the second appeal under Section 100 CPC. The High Court, after hearing counsel, found no substantial question of law. It noted that the courts below had concurrently held that the plaintiffs proved their title through revenue records and mutation entries, while the defendant failed to prove the will. The will was not proved as required under Section 68 of the Indian Evidence Act, 1872, as the attesting witnesses were not examined and there were suspicious circumstances. The High Court dismissed the appeal, upholding the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact based on proper appreciation of evidence cannot be re-appreciated unless perverse or based on no evidence. (Paras 1-2) B) Evidence Act - Will - Proof of Will - Section 68 of Indian Evidence Act, 1872 - The propounder of a will must prove its execution and attestation. Suspicious circumstances, such as non-examination of attesting witnesses and discrepancies in the will, shift the burden on the propounder. (Paras 3-5) C) Property Law - Declaration of Title - Class II Heirs - Succession - The plaintiffs, as Class II heirs of the deceased Yallappa Ningappa Doddamani, proved their title through revenue records and mutation entries. The defendant failed to prove the alleged will dated 21.7.1999 executed by Smt. Marevva. (Paras 3-5)
Issue of Consideration
Whether the judgment and decree of the courts below suffer from any perversity or illegality warranting interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908?
Final Decision
The High Court dismissed the second appeal, confirming the concurrent findings of the courts below. The judgment and decree of the first appellate court dated 11.2.2014 in R.A.No.124/2013 and the trial court dated 28.3.2013 in O.S.No.35/2007 were upheld.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- interference with findings of fact
- burden of proof on propounder of will
- suspicious circumstances surrounding will
- Section 68 of Indian Evidence Act
- 1872
