LEHNA SINGH (D) BY LRS.versusGURNAM SINGH (D) BY LRS. & ORS.

                 [2024] 6 S.C.R. 390 : 2024 INSC 429

                       Lehna Singh (D) By Lrs.
                                 v.
                   Gurnam Singh (D) By Lrs. & Ors.
                  (Review Petition (C) No. 1025 of 2019)
                                 16 May 2024
           [Vikram Nath and Prashant Kumar Mishra,* JJ.]

                            Issue for Consideration
       Issue arose whether the questions of law are not required to be
       framed in second appeal before Punjab and Haryana High Court
       whose jurisdiction in second appeal is circumscribed by provision
       of s.41 of the Punjab Act.

                                   Headnotes†
       Code of Civil Procedure, 1908 – s.100 – Punjab Courts Act,
       1918 – s. 41 – Second appeal – Framing of a substantial question
       of law for entertaining the second appeal – Requirement – On
       facts, suit for perpetual injunction by the plaintiff against the
       defendant that he and his brother were owners in possession
       of the suit land – Defendant’s case rested on the Will executed
       by the plaintiff’s brother – Trial court passed a decree in favour
       of the plaintiff holding that the Will was not validly executed –
       First appellate court set aside the finding of the trial court
       and passed a decree for joint possession in favour of the
       defendant – High Court restored the judgment and decree
       passed by the trial court – In appeal, this Court set aside the
       judgment passed by the High Court holding that the High
       Court went beyond the scope and ambit of s. 100 CPC by re-
       appreciating the entire evidence on record and substituting
       its own opinion for that of the first appellate court – Review
       petition thereagainst – Correctness:
       Held: s. 41 does not mandate framing of a substantial question of
       law for entertaining the second appeal – Thus, a second appeal
       u/s. 41 can be entertained by the Punjab and Haryana High Court
       even without framing a substantial question of law – However, the
       finding of fact recorded, cannot be interfered with even in terms of
       s.41 – Judgment under review was wrongly decided holding that the
       Punjab and Haryana High Court travelled beyond the jurisdiction u/s.
       100 CPC by interfering with the finding of fact recorded by the first
* Author
[2024] 6 S.C.R.                                                                391

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


     appellate court without framing a substantial question of law – Since
     there is an error apparent on the face of the record, the judgment in
     civil appeal is reviewed and recalled for deciding on merits – First
     appellate court while setting aside the judgment and decree of the
     trial court, was required to meet the reasoning given by the trial court
     in rejecting the Will, which was not been done – Having considered
     the evidence on record and the findings of the trial court, the first
     appellate court and the High Court, the first appellate court wrongly
     set aside the judgment, decree, and findings of the trial court without
     meeting the findings of the trial court which could not have been
     done in exercise of power s. 96 CPC – Thus, the High Court rightly
     set aside the judgment and decree of the first appellate court to
     restore the judgment and decree of the trial court – On independent
     examination also, it is found that the findings recorded by trial court
     are borne out from the evidence on record and are neither perverse
     nor illegal – Thus, no substance in the civil appeal and is dismissed.
     [Paras 20, 23, 10, 12, 14, 15, 26, 27]

                               Case Law Cited
           Pankajakshi (Dead) Through Legal Representatives &
           Ors. v. Chandrika & Ors. [2016] 3 SCR 1018 : (2016)
           6 SCC 157 – followed.
           Kulwant Kaur & Ors. v. Gurdial Singh Maan (Dead)
           By Lrs. & Ors. [2001] 2 SCR 525: (2001) 4 SCC 262;
           Randhir Kaur v. Prithvi Pal Singh & Ors. [2019] 9 SCR
           776 : (2019) 17 SCC 71; Gurbachan Sing (Dead)
           Through Lrs. v. Gurcharan Singh (Dead) Through Lrs.
           & Ors. (2023) SCC Online SC 875; Chintamani Ammal
           v. Nandagopal Gounder and Anr. [2007] 2 SCR 903 :
           (2007) 4 SCC 163; Jagannath v. Arulappa & Anr. (2005)
           12 SCC 303; H.K.N. Swami v. Irshad Basith (Dead) By
           Lrs. (2005) 10 SCC 243 – referred to.

                                  List of Acts
     Code of Civil Procedure, 1908; Code of Civil Procedure
     (Amendment) Act, 1976; Punjab Courts Act, 1918.

                              List of Keywords
     Second appeal; Framing of a substantial question of law; Suit for
     perpetual injunction; Will; Suspicious circumstances; Decree for
     joint possession; First appellate court; Review petition.
392                                                         [2024] 6 S.C.R.

                      Digital Supreme Court Reports


                             Case Arising From
       CIVIL APPELLATE JURISDICTION: Review Petition (C) No. 1025
       of 2019
       In
       Civil Appeal No. 6567 of 2014
       From the Judgment and Order dated 13.03.2019 of the Supreme
       Court of India in CA No. 6567 of 2014
                          Appearances for Parties
       P.S. Patwalia, Gagan Gupta, Sr. Advs., Ashwani Kumar Dubey,
       Deepak Malik, Advs. for the Petitioners.
       Manoj Swarup, Sr. Adv., Neelmani Pant, Ms. Apoorva Singh, Avinash
       Gautam, Advs. for the Respondents.
                 Judgment / Order of the Supreme Court
                                    Judgment
       Prashant Kumar Mishra, J.
       The petitioner has preferred this Review Petition seeking review
       of the Order dated 13.03.2019 passed in Civil Appeal No. 6567
       of 2014 wherein the present petitioner was the respondent. In the
       Order under review, the Civil Appeal was allowed, and the judgment
       and decree passed by the High Court of Punjab and Haryana on
       27.11.2007 in Civil Regular Second Appeal No. 2191 of 1985 was
       set aside and the judgment and decree passed by the District
       Judge, Sangrur, on 06.06.1985 in Civil Appeal No. 27 of 1983 has
       been restored.
2.     In the judgment under review, this Court held that the judgment and
       decree passed by the Punjab and Haryana High Court is beyond
       the scope and ambit of Section 100 of Code of Civil Procedure,
       19081 on the ground that in exercise of such power, the High Court
       could not have reappreciated the entire evidence on record to
       unsettle the finding of facts recorded by the First Appellate Court,
       by substituting its own opinion for that of the First Appellate Court.



1    ‘CPC’
[2024] 6 S.C.R.                                                         393

        Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


3.    Basing the judgment rendered in Pankajakshi (Dead) Through
      Legal Representatives & Ors. v. Chandrika & Ors.2, this Court
      directed that the review petition be listed before the open Court for
      hearing and subsequently on 13.08.2019 notices were issued to the
      opposite parties, at the same time, directing the parties to maintain
      status quo.
4.    In substance, the main ground for review of the judgment is that the
      Constitution Bench of this Court in Pankajakshi (supra) have uphold
      the validity of Section 41 of Punjab Courts Act, 19183, overruling this
      Court’s earlier judgment in case of Kulwant Kaur & Ors. v. Gurdial
      Singh Maan (Dead) By Lrs. & Ors.4 holding that since Section
      97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has
      no application to Section 41 of the Punjab Act, therefore, Section 41
      of the Punjab Act would necessarily continue as a law in force and
      the second appeal before the High Court has to be heard within the
      parameters of Section 41 of the Punjab Act, and not under Section
      100 CPC.
5.    Shri P.S. Patwalia, learned Senior counsel appearing for the petitioner
      would also refer to the subsequent judgments of this Court in Randhir
      Kaur v. Prithvi Pal Singh & Ors.5 and Gurbachan Sing (Dead)
      Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. & Ors.6
      wherein this Court relying upon Pankajakshi (supra) held that the
      scope of interference within the jurisdiction of the Punjab and Haryana
      High Court would be the same as under Section 100 of CPC as it
      existed prior to the 1976 amendment. The provisions of Section 41
      of the Punjab Act and of Section 100 CPC, before its amendment
      in 1976, are in pari materia. Therefore, the questions of law are not
      required to be framed in second appeal before Punjab and Haryana
      High Court whose jurisdiction in second appeal is circumscribed by
      provision of Section 41 of the Punjab Act.
6.    Shri Patwalia would submit that this Court has set aside the Judgment
      of High Court terming it as beyond the power under Section 100


2    [2016] 3 SCR 1018 : (2016) 6 SCC 157
3    ‘Punjab Act’
4    [2001] 2 SCR 525 : (2001) 4 SCC 262
5    [2019] 9 SCR 776 : (2019) 17 SCC 71
6    (2023) SCC Online SC 875
394                                                          [2024] 6 S.C.R.

                       Digital Supreme Court Reports


       CPC which is not legally correct, in view of the law laid down in
       Pankajakshi (supra). It is further argued that in the facts and
       circumstances of the case, the petitioner was entitled to succeed
       to the property by way of natural succession and the finding of the
       High Court that the Will relied upon by the respondents has not been
       proved as it is surrounded by suspicious circumstances ought not to
       have been interfered by this Court. It is argued that a finding of fact
       erroneously or perversely recorded by the First Appellate Court can
       always be interfered by the High Court. Hence, there is no infirmity
       in the Judgment rendered by the High Court and the same ought not
       to have been interfered by this Court while deciding the Civil Appeal
       No. 6567 of 2014 on an erroneous ground that the High Court has
       travelled beyond its jurisdiction and power under Section 100 CPC
       as it stands of the 1976 amendment.
7.     Shri Manoj Swarup, learned senior counsel appearing for the
       respondents would not dispute the legal position as has been settled
       by this Court in the matter of Pankajakshi (supra). However, he
       would submit that even in the case when the High Court would
       exercise the power under Section 41 of the Punjab Act, the finding
       of fact recorded by the First Appellate Court cannot be interfered on
       re-appreciation of evidence to substitute its own decision for that of
       the First Appellate Court. According to him, the finding recorded by
       the First Appellate Court was borne out from the record. Therefore,
       the High Court erred in interfering with the said finding, and this
       Court rightly set aside the Judgment and decree of the High Court
       while deciding the Civil Appeal. According to Shri Swarup, the
       respondents had proved the Will, which was a registered one, in
       accordance with law and that there were no suspicious circumstances
       accompanying the Will.
8.     When this Court rendered the judgment under review in Civil Appeal
       No. 6567 of 2014, the only ground which weighed with the Court
       was that the High Court exercised the power under Section 100
       CPC erroneously and decided the second appeal by re-appreciating
       the evidence without even framing a substantial question of law.
9.     The second appeal in Punjab and Haryana High Court is heard
       under Section 41 of the Punjab Act, which is reproduced hereunder
       for ready reference: -
[2024] 6 S.C.R.                                                      395

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


           “41. Second Appeals – (1) An appeal shall lie to the
           High Court from every decree passed in appeal by
           any court subordinate to the High Court on any of the
           following grounds, namely:
                (a)   the decision being contrary to law or to
                      some custom or usage having the force
                      of law:
                (b)   the decision having failed to determine
                      some material issue of law or custom or
                      usage having the force of law:
                (c)   a substantial error or defect in the
                      procedure provided by the Code of Civil
                      Procedure 1908 (V of 1908), or by any
                      other law for the time being in force which
                      may possibly have produced error or
                      defect in the decision of the case upon
                      the merits;
                [Explanation – A question relating to the
                existence or validity of a custom or usage shall
                be deemed to be a question of law within the
                meaning of this section:]
           (2) An appeal may lie under this section from an
           appellate decree passed ex parte.”
10. The provision contained in Section 41 of the Punjab Act, as
    reproduced above, does not mandate framing of a substantial
    question of law for entertaining the second appeal. Therefore, a
    second appeal under Section 41 of Punjab Act can be entertained
    by the Punjab and Haryana High Court even without framing a
    substantial question of law.
11. It would be appropriate to refer to the provision contained in Section
    41 of the Punjab Act in juxtaposition to Section 100 CPC, before its
    amendment in 1976, to appreciate and understand the jurisdiction
    of Punjab and Haryana High Court in second appeal. The provisions
    are reproduced hereunder for ready reference: -
396                                                          [2024] 6 S.C.R.

                       Digital Supreme Court Reports



       “Section 41 of the Punjab Act        Section 100 CPC
       41. Second appeals.—(1) An           100. Second appeal.—(1) Save
       appeal shall lie to the High Court   where otherwise expressly
       from every decree passed in          provided in the body of this
       appeal by any court subordinate      Code or by any other law for the
       to the High Court on any of the      time being in force, an appeal
       following grounds, namely:           shall lie to the High Court from
                                            every decree passed in appeal
                                            by any court subordinate to
                                            a High Court, on any of the
                                            following grounds, namely:
       (a) the decision being contrary to (a) the decision being contrary
       law or to some custom or usage to law or to some usage having
       having the force of law;           the force of law;
       (b) the decision having failed to    (b) the decision having failed to
       determine some material issue        determine some material issue
       of law or custom or usage having     of law or usage having the force
       the force of law;                    of law;
       (c) a substantial error or defect    (c) a substantial error or defect
       in the procedure provided by the     in the procedure provided by
       Code of Civil Procedure, 1908 (V     this Code or by any other law
       of 1908), or by any other law for    for the time being in force, which
       the time being in force which may    may possibly have produced
       possibly have produced error or      error or defect in the decision
       defect in the decision of the case   of the case upon the merits.
       upon the merits;
       *           *           *
       (2) An appeal may lie under this (2) An appeal may lie under
       section from an appellate decree this section from an appellate
       passed ex parte.                 decree passed ex parte.”

12. In Pankajakshi (supra), the Constitution Bench of this Court has held
    that substantial question of law may not be required to be framed in
    a second appeal before Punjab and Haryana High Court. However,
    the finding of fact recorded, cannot be interfered with even in terms
    of Section 41 of Punjab Act. The law laid down by this Court in
    Pankajakshi (supra) has been relied upon in Randhir Kaur (supra)
    to hold thus in paragraphs 10 to 12: -
[2024] 6 S.C.R.                                                   397

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


           “10. The effect of the Constitution Bench judgment
           in Pankajakshi is that in second appeal, the scope of
           interference within the Punjab and Haryana High Court
           would be the same as the Code of Civil Procedure
           existed prior to the 1976 Amendment. The provisions
           of Section 41 of the Punjab Act and of Section 100
           CPC are in pari materia.
           11. Some of the judgments of this Court dealing with
           the scope of the old Section 100 are required to be
           discussed. In a judgment in Deity Pattabhiramaswamy
           v. S. Hanymayya [AIR 1959 SC 57] — three Judges,
           while examining the scope of Section 100 CPC, held
           as under : (AIR p. 59, para 13)
                “13. The finding on the title was arrived at by
                the learned District Judge not on the basis of
                any document of title but on a consideration
                of relevant documentary and oral evidence
                adduced by the parties. The learned Judge,
                therefore, in our opinion, clearly exceeded his
                jurisdiction in setting aside the said finding.
                The provisions of Section 100 are clear and
                unambiguous. As early as in 1891, the Judicial
                Committee in Durga Choudhrain v. Jawahir
                Singh Choudhri [1890 SCC OnLine PC 10 :
                (1889-90) 17 IA 122] stated thus : (SCC OnLine
                PC)
                ‘There is no jurisdiction to entertain a second
                appeal on the ground of an erroneous finding
                of fact, however gross or inexcusable the error
                may seem to be.’
                The principle laid down in this decision has
                been followed in innumerable cases by the Privy
                Council as well as by different High Courts in
                this country. Again the Judicial Committee in
                Midnapur Zamindary Co. Ltd. v. Uma Charan
                Mandal [1923 SCC OnLine PC 31 : (1924-25)
                29 CWN 131] further elucidated the principle
                by pointing out : (SCC OnLine PC)
398                                                     [2024] 6 S.C.R.

                Digital Supreme Court Reports


           ‘[If] the question to be decided is one of fact, it
           does not involve an issue of law merely because
           documents which were not instruments of title
           or contracts or statutes or otherwise the direct
           foundations of rights but were merely historical
           documents, have to be construed.’
           Nor does the fact that the finding of the
           first appellate court is based upon some
           documentary evidence make it any the less a
           finding of fact (see Wali Mohammad v. Mohd.
           Bakhsh [1929 SCC OnLine PC 115 : (1929-
           30) 57 IA 86 : ILR (1930) 11 Lah 199]). But,
           notwithstanding such clear and authoritative
           pronouncements on the scope of the provisions
           of Section 100 CPC, some learned Judges of
           the High Courts are disposing of second appeals
           as if they were first appeals. This introduces,
           apart from the fact that the High Court assumes
           and exercises a jurisdiction which it does not
           possess, a gambling element in the litigation
           and confusion in the mind of the litigant public.
           This case affords a typical illustration of such
           interference by a Judge of the High Court in
           excess of his jurisdiction under Section 100
           CPC. We have, therefore, no alternative but to
           set aside the decree of the High Court on the
           simple ground that the learned Judge of the High
           Court had no jurisdiction to interfere in second
           appeal with the findings of fact given by the first
           appellate court based upon an appreciation of
           the relevant evidence. In the result, the decree
           of the High Court is set aside and the appeal
           is allowed with costs throughout.”
       12. Later, in a judgment, in Kshitish Chandra Bose v.
       Commr. [(1981) 2 SCC 103] — three Judges, of this
       Court held that the High Court has no jurisdiction to
       entertain second appeal on findings of fact even if it
       was erroneous. The Court held as follows : (SCC p.
       108, para 11)
[2024] 6 S.C.R.                                                      399

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


                “11. On a perusal of the first judgment of the
                High Court we are satisfied that the High Court
                clearly exceeded its jurisdiction under Section
                100 in reversing pure concurrent findings of fact
                given by the trial court and the then appellate
                court both on the question of title and that
                of adverse possession. In Kharbuja Kuer v.
                Jangbahadur Rai [AIR 1963 SC 1203 : (1963)
                1 SCR 456] this Court held that the High Court
                had no jurisdiction to entertain second appeal
                on findings of fact even if it was erroneous. In
                this connection, this Court observed as follows :
                (AIR pp. 1205-06, paras 5 & 7)
                ‘5. It is settled law that the High Court has no
                jurisdiction to entertain a second appeal on the
                ground of erroneous finding of fact. …
                                        ***
                7. … As the two courts approached the evidence
                from a correct perspective and gave a concurrent
                finding of fact, the High Court had no jurisdiction
                to interfere with the said finding.’
                To the same effect is another decision of this
                Court in V. Ramachandra Ayyar v. Ramalingam
                Chettiar [AIR 1963 SC 302 : (1963) 3 SCR 604]
                where the Court observed as follows : (AIR p.
                306, para 12)
                ‘12. … But the High Court cannot interfere with
                the conclusions of fact recorded by the lower
                appellate court, however erroneous the said
                conclusions may appear to be to the High Court,
                because, as the Privy Council has observed,
                however gross or inexcusable the error may
                seem to be, there is no jurisdiction under Section
                100 to correct that error.’ ”
13. In a recent decision in the matter of Gurbachan Singh (supra),
    this court has reiterated the legal position vis-à-vis Section 41 of
    Punjab Act and the unamended Section 100 CPC holding thus in
    paragraphs 9 to 11: -
400                                                       [2024] 6 S.C.R.

                Digital Supreme Court Reports


       “9. The Constitution bench in Pankajakshi (Dead)
       through LRs v. Chandrika had held Kulwant Kaur v.
       Gurdial Singh Mann which held section 41 of the Punjab
       Courts Act, 1918 to be repugnant to section 100, CPC
       to be bad in law, thereby implying that section 41 of
       the Punjab Court Act holds as good law. It was held
       as under: —
           “25. We are afraid that this judgment in Kulwant
           Kaur case [Kulwant Kaur v. Gurdial Singh
           Mann, (2001) 4 SCC 262] does not state the
           law correctly on both propositions. First and
           foremost, when Section 97(1) of the Code of Civil
           Procedure (Amendment) Act, 1976 speaks of
           any amendment made or any provision inserted
           in the principal Act by virtue of a State Legislature
           or a High Court, the said section refers only to
           amendments made and/or provisions inserted
           in the Code of Civil Procedure itself and not
           elsewhere. This is clear from the expression
           “principal Act” occurring in Section 97(1). What
           Section 97(1) really does is to state that where
           a State Legislature makes an amendment in the
           Code of Civil Procedure, which amendment will
           apply only within the four corners of the State,
           being made under Schedule VII List III Entry 13
           to the Constitution of India, such amendment
           shall stand repealed if it is inconsistent with the
           provisions of the principal Act as amended by
           the Parliamentary enactment contained in the
           1976 Amendment to the Code of Civil Procedure.
           This is further made clear by the reference in
           Section 97(1) to a High Court. The expression
           “any provision inserted in the principal Act” by a
           High Court has reference to Section 122 of the
           Code of Civil Procedure by which High Courts
           may make rules regulating their own procedure,
           and the procedure of civil courts subject to their
           superintendence, and may by such rules annul,
           alter, or add to any of the rules contained in the
           First Schedule to the Code of Civil Procedure.”
[2024] 6 S.C.R.                                                        401

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


           10. Recently, a Bench of three learned Judges in
           Satyender v. Saroj while dealing with a property
           dispute arising out of the State of Haryana, held as
           under:—
                “16. We may also add here that we are presently
                concerned with the laws in the State of Haryana.
                All the same, the laws as applicable in Punjab
                in the year 1918, were also applicable to the
                present territory of Haryana since it was then
                a part of the State of Punjab. Later on, the
                creation of the new State of Haryana, under
                the provision given in Section 88 of the Punjab
                Re-organization Act, 1966, the laws applicable
                in the erstwhile State of Punjab continued to
                be applicable in the new State of Haryana.
                Furthermore, State of Haryana formally adopted
                the laws of the erstwhile State of Punjab, under
                Section 89 of the Punjab Re-Organisation
                Act, 1966. Therefore, in the State of Haryana
                a court in second appeal is not required to
                formulate a substantial question of law, as what
                is applicable in Haryana is Section 41 of the
                Punjab Courts Act, 1918 and not Section 100
                of CPC. Consequently, it was not necessary
                for the High Court to formulate a substantial
                question of law.”
           11. In view of the above discussion, it is clear to this
           court that the judgment of the learned single Judge
           sitting in second appellate jurisdiction cannot be
           faulted for not having framed substantial questions
           of law under section 100, CPC”.
14. Regard being had to the settled legal position in Pankajakshi (supra)
    reiterated in Randhir Kaur (supra) and Gurbachan Singh (supra),
    we are of the view that the Judgment of this Court under review in
    Civil Appeal No. 6567 of 2014 has been wrongly decided holding
    that the Punjab and Haryana High Court has travelled beyond the
    jurisdiction under Section 100 CPC by interfering with the finding of
    fact recorded by the First Appellate Court without framing a substantial
    question of law.
402                                                        [2024] 6 S.C.R.

                     Digital Supreme Court Reports


15. Since there is an error apparent on the face of the record, in view of
    the law laid down in Pankajakshi (supra), we review our judgment
    in Civil Appeal No. 6567 of 2014 and recall the same for deciding
    the Civil Appeal on merits. The Review Petition is allowed. The Civil
    Appeal is restored to its original number and taken on board with the
    consent of the parties, and we proceed to decide the Civil Appeal
    afresh on merits.
       Civil Appeal No. 6567 of 2014
16. This Civil Appeal is preferred by the defendants in the suit against
    whom the plaintiff brought a suit for perpetual injunction on the
    pleadings, inter alia, that he and his brother Bhagwan Singh alias
    Nikka Singh were owners in possession of the suit land. Bhagwan
    Singh was issueless being unmarried. Since the defendant No. 1
    was trying to dispossess the plaintiff forcibly, the suit for perpetual
    injunction was filed. The defendants did not deny that plaintiff and
    Bhagwan Singh were real brothers. However, he claimed to be the
    half-brother of Bhagwan Singh as they were given birth by same lady
    namely Mrs. Har Kaur who was earlier married to Sunder Singh but
    after his death, she was married to Mehar Singh and the defendant
    no. 1 was born out of the wedlock of Har Kaur with Mehar Singh. The
    defendant’s case rested on a Will allegedly executed by Bhagwan
    Singh on 17.01.1980. Prior to this, Bhagwan Singh had executed an
    unregistered Will on 17.08.1979. However, the defendant admitted
    that during the lifetime of Bhagwan Singh, the suit land was cultivated
    jointly by the plaintiff and Bhagwan Singh. In the alternative, the
    defendant pleaded that if plaintiff’s possession over the suit land is
    proved, the defendant nos. 2 to 6, the beneficiary of the Will, are
    entitled to joint possession of half share of the suit land.
17. On the strength of evidence adduced by the parties in course of
    trial, it was held by the trial court that the defendants have failed to
    prove the genuineness of the Will, therefore, the plaintiff is entitled
    to succeed by way of natural succession. It was found that the Will
    relied by the defendants is surrounded by suspicious circumstances,
    therefore, it is not a validly executed Will. The trial court held that
    the defendants’ case that they served the deceased Bhagwan Singh
    during the lifetime and out of love and affection for the services
    rendered, he executed the Will in their favour as they were also
    related to the deceased, has not been believed by the trial court.
    There is evidence that it was plaintiff who admitted Nikka Singh in
[2024] 6 S.C.R.                                                          403

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


     hospital on 02.08.1979 when he was ill and his address was also
     shown as care of Lehna Singh (the ‘plaintiff’).
18. Upon careful marshalling of evidence, the trial court recorded a finding
    about active participation of Jagjit Singh (DW-3) in execution of the Will
    and the absence of mention in the Will as to why he disinherited his
    real brother, the plaintiff, from succeeding the property and more so
    when he was living with him and was attended to during his ill health.
    Since the defendant admit joint possession and cultivation of the land
    by Nikka Singh and plaintiff, a fact contrary to this mentioned in the
    Will was also highlighted by the trial court. Despite there being an
    earlier Will there was no mention that the said Will is cancelled and
    the name of father of Gurnam Singh was also wrongly mentioned.
    The trial court also found that Nikka Singh was suffering from cancer
    and was also a patient of T.B.
19. The trial court also found that the plaintiff is in possession of the suit
    land as the said fact has been admitted by one of the defendant’s
    witnesses namely Gurnam Singh.
20. The First Appellate Court set aside the finding of the trial court
    holding that the trial court was wrongly persuaded by insignificant
    circumstances to hold that the Will in favour of the defendant nos. 2 to
    6 is not genuine and that it is surrounded by suspicious circumstances.
    The First Appellate Court eventually passed a decree for joint
    possession in favour of defendant which was assailed by plaintiff
    Lehna Singh before the High Court by preferring an appeal under
    Section 41 of the Punjab Act. The High Court, under the impugned
    Judgment, allowed the appeal, set aside the appellate decree passed
    by the District Judge, Sangrur, restoring the Judgment and decree
    passed by the trial court.
21. The High Court has discussed the evidence threadbare and framed
    the following substantial questions of law: -
           (i)    Whether the Appellate Court can reverse the
                  findings recorded by the learned trial court
                  without adverting to the specific finding of the
                  trial court?
           (ii)   Whether the judgment passed by the learned
                  lower Appellate Court is perverse and outcome
                  of misreading of evidence?
404                                                        [2024] 6 S.C.R.

                           Digital Supreme Court Reports


22. The High Court answered both the questions of law in favour of
    the plaintiff/respondent herein (in Civil Appeal) on the reasoning
    that when the person entitled to the property of the deceased by
    way of natural succession, is disinherited from the property without
    giving any reason and the covenants in the Will are also found to be
    factually incorrect, mere registration of the Will and proof of the same
    by attesting witnesses could not be treated to be sufficient to over-
    come the suspicious circumstances as has been done by the First
    Appellate Court. The High Court also observed that the propounders
    of the Will were earlier tried for murder of the deceased-testator and
    there being no evidence on record to show that the deceased had
    special love and affection with the defendants and when it is proved
    that the plaintiff is in possession of the land and the defendant and
    their witnesses actively participated in the execution of the Will,
    there is glaring suspicious circumstances to hold that the Will is not
    genuine. It was also observed that the testator was residing with the
    plaintiff, and it was he who got him admitted in the hospital, it was
    proved that the plaintiff was taking care of the deceased at the time
    of his need. Merely because the attesting witnesses had no enmity
    towards the plaintiff, it cannot dispel the suspicious circumstances
    surrounded around the Will.
23. It is settled law that the First Appellate Court, while setting aside
    the Judgment and decree of the trial court, is required to meet the
    reasoning given by the trial court in rejecting the Will, which in the
    present case has not been done by the First Appellate Court.
24. The requirement of exercise of jurisdiction by the First Appellate
    Court under Section 96 of CPC has been dealt with by this Court in
    Chintamani Ammal vs. Nandagopal Gounder and Anr.7, wherein
    after noticing the previous judgments of this Court, the following has
    been held in paragraphs 18, 19 and 20 thus: -
            “18. Furthermore, when the learned trial Judge
            arrived at a finding on the basis of appreciation of
            oral evidence, the first appellate court could have
            reversed the same only on assigning sufficient reasons
            therefor. Save and except the said statement of DW 2,


7   [2007] 2 SCR 903 : (2007) 4 SCC 163
[2024] 6 S.C.R.                                                       405

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


           the learned Judge did not consider any other materials
           brought on record by the parties.
           19. In Madholal Sindhu v. Official Assignee of Bombay,
           it was observed: (AIR p. 30, para 21)
                “It is true that a judge of first instance can
                never be treated as infallible in determining on
                which side the truth lies and like other tribunals
                he may go wrong on questions of fact, but
                on such matters if the evidence as a whole
                can reasonably be regarded as justifying the
                conclusion arrived at, the appeal court should
                not lightly interfere with the judgment.”
                        (See also Madhusudan Das v. Narayanibai)
           20. In Rajbir Kaur v. S. Chokesiri and Co., this Court
           observed: (SCC pp. 39-41, paras 48-52)
             “48. Reference on the point could also usefully be
             made to A.L. Goodhart’s article in which, the learned
             author points out:
                ‘A judge sitting without a jury must perform
                dual function. The first function consists in the
                establishment of the particular facts. This may be
                described as the perceptive function. It is what
                you actually perceive by the five senses. It is a
                datum of experience as distinct from a conclusion.
                It is obvious that, in almost all cases tried
                by a judge without a jury, an appellate court,
                which has not had an opportunity of seeing
                the witnesses, must accept his conclusions of
                fact because it cannot tell on what grounds he
                reached them and what impression the various
                witnesses made on him.’
             49. The following is the statement of the same
             principle in ‘The Supreme Court Practice’:
                ‘Great weight is due to the decision of a judge of
                first instance whenever, in a conflict of testimony,
406                                                    [2024] 6 S.C.R.

              Digital Supreme Court Reports


         the demeanour and manner of witnesses who
         have been seen and heard by him are material
         elements in the consideration of the truthfulness
         of these statements. But the parties to the cause
         are nevertheless entitled as well on questions of
         fact as on questions of law to demand the decision
         of the court of appeal, and that court cannot
         excuse itself from the task of weighing conflicting
         evidence, and drawing its own conclusions,
         though it should always bear in mind that it has
         neither seen nor heard the witnesses and should
         make due allowance in this respect. (pp. 854-55)
         …Not to have seen witnesses puts Appellate
         Judges in a permanent position of disadvantage
         against the trial Judge, and unless it can be
         shown that he has failed to use or has palpably
         misused his advantage—for example has failed
         to observe inconsistencies or indisputable fact
         or material probabilities (ibid. and Yuill v. Yuill;
         Watt v. Thomas —the higher court ought not
         take the responsibility of reversing conclusions
         so arrived at merely as the result of their own
         comparisons and criticisms of the witnesses,
         and of their view of the probabilities of the case.
         … (p. 855)
         …But while the court of appeal is always
         reluctant to reject a finding by a judge of the
         specific or primary facts deposed to by the
         witnesses, especially when the finding is based
         on the credibility or bearing of a witness, it is
         willing to form an independent opinion upon the
         proper inference to be drawn from it. … (p. 855)
       50. A consideration of this aspect would be incomplete
       without a reference to the observations of B.K.
       Mukherjea, J., in Sarju Pershad Ramdeo Sahu v.
       Jwaleshwari Pratap Narain Singh [1950 SCC 714 :
       AIR 1951 SC 120 : 1950 SCR 781] which as a succinct
       statement of the rule, cannot indeed be bettered:
[2024] 6 S.C.R.                                                         407

      Lehna Singh (D) By Lrs. v. Gurnam Singh (D) By Lrs. & Ors.


                ‘The question for our consideration is undoubtedly
                one of fact, the decision of which depends upon
                the appreciation of the oral evidence adduced
                in the case. In such cases, the appellate court
                has got to bear in mind that it has not the
                advantage which the trial Judge had in having
                the witnesses before him and of observing the
                manner in which they deposed in court. This
                certainly does not mean that when an appeal
                lies on facts, the appellate court is not competent
                to reverse a finding of fact arrived at by the trial
                Judge. The rule is— and it is nothing more than
                a rule of practice—that when there is conflict
                of oral evidence of the parties on any matter
                in issue and the decision hinges upon the
                credibility of the witnesses, then unless there
                is some special feature about the evidence of
                a particular witness which has escaped the trial
                Judge’s notice or there is a sufficient balance
                of improbability to displace his opinion as to
                where the credibility lies, the appellate court
                should not interfere with the finding of the trial
                Judge on a question of fact.
             51. The area in which the question lies in the present
             case is the area of the perceptive functions of the
             trial Judge where the possibility of errors of inference
             does not play a significant role. The question whether
             the statement of the witnesses in regard to what
             was amenable to perception by sensual experience
             as to what they saw and heard is acceptable or not
             is the area in which the well-known limitation on
             the powers of the appellate court to reappreciate
             the evidence falls. The appellate court, if it seeks
             to reverse those findings of fact, must give cogent
             reasons to demonstrate how the trial court fell into
             an obvious error.
             52. With respect to the High Court, we think, that,
             what the High Court did was what perhaps even an
             appellate court, with full-fledged appellate jurisdiction
408                                                          [2024] 6 S.C.R.

                        Digital Supreme Court Reports


               would, in the circumstances of the present case,
               have felt compelled to abstain from and reluctant to
               do. Contention (c) would also require to be upheld.”
                                                 (emphasis in original)
25. In Jagannath v. Arulappa & Anr.8 and H.K.N. Swami v. Irshad
    Basith (Dead) By Lrs.9, this Court has opined that it would be
    wholly improper to allow first appeal without adverting to the specific
    findings of the trial court and that the First Appellate Court is required
    to address all the issues and determine the appeal upon assignment
    of cogent reasons.
26. Having considered the evidence on record and the findings of the trial
    court, the First Appellate Court and the High Court, we are satisfied
    that the First Appellate Court wrongly set aside the Judgment, decree,
    and findings of the trial court without meeting the findings of the trial
    court which could not have been done in exercise of power under
    Section 96 CPC. Therefore, the High Court has rightly set aside
    the Judgment and decree of the First Appellate Court to restore the
    Judgment and decree of the trial court. On independent examination
    also, we have found that the findings recorded by trial court are borne
    out from the evidence on record and are neither perverse nor illegal.
27. Therefore, we find no substance in this appeal which deserves to
    be and is hereby dismissed.
28. The parties shall bear their own costs.

       Result of the case: Review Petition allowed and Civil Appeal
                            dismissed.




       Headnotes prepared by: Nidhi Jain
       †




8   (2005) 12 SCC 303
9   (2005) 10 SCC 243