Concurrent findings of fact by lower courts cannot be interfered with in a second appeal under Section 100 CPC unless they are shown to be perverse, illegal, or lacking any evidence, and a Will must strictly adhere to the mandatory attestation requirements under Section 63 of the Indian Succession Act.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope - Scope of interference in a Second Appeal is extremely limited; it is permissible only when the appeal involves a substantial question of law. Concurrent findings of fact recorded by both the Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law. (Para 11)

(B) Indian Succession Act, 1925 - Section 63 - Execution and proof of Will - Mandatory requirements - Attesting witnesses must speak about testator’s signatures and that each witness signed in the presence of the testator. Where a Will is surrounded by suspicious circumstances, the burden on the propounder is heavier to remove all legitimate suspicion and dispense satisfying evidence. (Para 10)

Facts of the case:
Original plaintiff sought a declaration of title and recovery of possession over land based on a family arrangement/agreement from 1971. During the suit, the original plaintiff passed away and was substituted by the appellant, who claimed ownership under a Will. The trial court and appellate court concurrent findings rejected the suit, noting the failure of the plaintiff to prove title, the inadequacy of the unregistered document of 1971, the lack of proof of the Will, and non-joinder of necessary parties.

Findings of Court:
The court held that concurrent findings of fact cannot be overturned in second appeal without a substantial question of law. It observed that the Will was not proved as per the mandatory requirements of the Indian Succession Act, and the circumstances surrounding its execution were suspicious.

Issues: Whether the plaintiff established title and possession; whether the Will relied upon by the substituted plaintiff was duly proved; and whether the appeal raised a substantial question of law.

Ratio Decidendi: A Will must be proved in accordance with Section 63 of the Indian Succession Act, necessitating clear testimony from attesting witnesses. Appellate jurisdiction under Section 100 CPC does not extend to mere re-appreciation of evidence or challenging concurrent findings of fact lacking perversity. Result : Appeal dismissed.

Table of Content
1. overview of the parties' claims and lower court findings. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. inadequacy of evidence to prove title and validity of the will. (Para 7 , 8 , 9)
3. legal requirements for proving a will under the indian succession act. (Para 10)
4. limited scope of interference in second appeal for concurrent findings of fact. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18)

Judgment on Board

07.04.2026

1. The plaintiff/appellant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 28.03.2022 passed by the Learned 1st Upper District Judge, Sakti, District Janjgir Champa C.G. in Civil Appeal No. 51-A/2022 ( Nirmal Das Vs. Dildar & Ors.) arising out of the judgment and decree dated 30.04.2018 passed by the Trial Court in Civil Suit No. 227-A/2007(Nirmal Das & Anr. Vs. Dildar & Ors.) whereby the learned trial Judge has dismissed the suit of the plaintiff/ appellant. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

2. The original plaintiff instituted a Civil suit in respect of land bearing Khasra No. 794, area 0.20 acres, situated at Village Kosamjhar, Tahsil Dabhra, District Janjgir–Champa (hereinafter referred to as the suit land), seeking declaration of title and recovery of possession pleading inter alia that the ancestors of the plaintiff had been residing on the suit land for more than 100 years after constructing a house and badi. The plaintiff’s grandfather Horaram resided there, and after his death the property was possessed by the plaintiff’s father Shekdas and uncle Shaildas, and thereafter by the plaintiff along with his brothers Premdas and Rohitdas. It is further pleaded that in a family arrangement in the year 1971, the suit property fell to the share of the plaintiff, and an agreement dated 02.09.1971 was executed by his brothers as a memorandum acknowledging the same. Since then, according to the plaintiff, he alone had title and possession over the suit land. The plaintiff subsequently went to Raigarh for earning his livelihood, during which period the house standing on the suit land became dilapidated. Taking advantage of his absence, the defendant allegedly demolished the boundary wall and forcibly occupied the suit land. When the plaintiff returned to the village in 1999, he found the defendant interfering with his possession. The plaintiff lodged a complaint before the Tahsildar, Dabhra on 11.12.1999, which was allowed by order dated 08.09.2000. The appeal filed by the defendant before the Sub-Divisional Officer (Revenue) was dismissed on 07.06.2001. However, in further appeal, the Board of Revenue, Chhattisgarh by order dated 07.11.2003 set aside the earlier orders holding that the claim involved adjudication of title which falls within the jurisdiction of the civil court. After the order of the Board of Revenue, the defendant again attempted to raise construction over the suit land on 23.11.2003, and allegedly threatened the plaintiff, which led the plaintiff to lodge a report at Police Station Dabhra. It is further pleaded that during the pendency of the proceedings, the original plaintiff Nirmaldas executed a Will dated 07.04.2006 in favour of Sunderlal, making him the testamentary successor. After the death of Nirmaldas, Sunderlal was substituted as plaintiff and continued the suit claiming title to the suit land on the basis of the said Will. In support of his claim, the plaintiff relied upon several documents including the order of the Board of Revenue dated 07.11.2003, the memorandum/ acknowledgment dated 02.09.1971, complaint dated 23.11.2003, revenue records, demarcation report, field book, map, photographs of the suit land, and the Will dated 07.04.2006, and examined several witnesses before the trial court.

3. During pendency of the suit, the original plaintiff Nirmaldas died and Sunderlal Sonwani was substituted as pl

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2026 Supreme(Online)(Chh) 9552

IN THE HIGH COURT OF CHHATTISGARH AT BILASPURBibhu Datta Guru, JSunderlal Sonwani – AppellantVersusChitkunwar – RespondentSA No. 298 of 2022

Cases Referred (2)

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Bibhu Datta Guru, J
Sunderlal Sonwani – Appellant
Versus
Chitkunwar – Respondent
SA No. 298 of 2022