Ravi Nandan Sahay, J.
1. This is an appeal against the decree of the 3rd Addl. District Judge, Siwan dated 30th August, 1991 whereby he affirmed the decree of the Additional Munsif, Siwan dated 2nd December, 1988 whereby the suit brought by respondent No. 1 Manager Singh was decreed by granting declaration that the plaintiff had title to the disputed land.
2. Although both the Courts below have found against the appellants, Mr. S.C. Surya, learned Counsel for the appellants has tried to demonstrate that the finding recorded by the trial Court was not consistent with the evidence and many salient points in favour of the appellants were ignored by the trial Court as also by the appellate Court. Learned Counsel has vehemently attacked the judgment of the appellate Court on the ground that the judgment is too sketchy one to be sustained. It is submitted that the appellate Court has failed to discharge the responsibility of the appellate Court in terms of Order XLI Rule 31 C.P.C.
3. Following substantial questions of law were formulated by the learned Judge while admitting this appeal:
(i) whether the Court of appeal below is justified in giving findings regarding the alleged relationship between the vendor of the plaintiff and the last holder of the property in question namely Gulabo Kuer without making reference and consideration of the evidence adduced by the defendants particularly when it is final Court of fact?
(ii) whether the Court of appeal below is justified in giving finding on the basis of the consideration made by the trial Court without making consideration itself independently?
(iii) whether the findings of the Courts below are based on correct application of principles of Hindu Law in the matter of inheritance and succession after the death of Gulabo Kuer?
(iv) whether the findings arrived at by the Courts below that the absence of the names of either Deo Sundari Devi or Bachha Prasad in earlier T.S. No. III of 1958 does not show that they were not related to Chandra Shekhar Singh or his widow Gulabo Kuer are justified when they have failed to consider that they were necessary party after the death of the father of Chandra Shekhar Singh if Deosundari Devi was his alleged daughter as the suit was disposed of at that time and shares were allotted to the sharers?
4. These questions have to be answered on the background of facts of the case which in brief is stated as follows. The plaintiff claimed title in respect of R.S. Plot No. 3608 on the strength of sale-deed dated 11-3-1981 executed by Bachcha Singh son of Deosundari Devi, who was sister of Chandra Shekhar Singh, Bachcha Singh is Bhagina of Chandra Shekhar Singh. Rup Narain Singh was father of Chandra Shekhar Singh.
5. The contesting defendants are agnates of Chandra Shekhar Singh. The defendants objected to the relief claimed by the plaintiff. Rup Narain Singh had no daughter. He had only one son Chandra Shekhar Singh and as such Deosundari Devi could not be sister of Chandra Shekhar Singh and Bachcha Singh was not sister's son of Chandra Shekhar and therefore, the sale-deed dated 11-3-1981 did not confer any title on the plaintiff. It was stated that Gulabo Kuer was widow of Chandra Shekhar Singh and after her death defendants 5 to 9 inherited the property of Gulabo Kuer, who had died leaving behind no heir. To substantiate their case, the defendants relied on plaint of Title Suit No. III of 1958. This suit was brought by Chandra Mukhi an agnate of Chandra Shekhar Singh for partition of family property. In the genealogy table appended to the plaint, there was no mention of Deosundari Devi or Bachcha Singh in the branch of Bhup Narain Singh. This omission was explained by the plaintiff by stating that since Deosundari Devi or Bachcha Singh do not belong to the family of Chandra Shekhar Singh, there was no point for including her as party in the suit. Deosundari Devi was married and she had no claim. Gulabo Kuer was one of the party in the suit.
6. According to the plaintiffs' case, Deosundari Devi died in the year 1974 and Gulabo Kuer died in the year 1980. Bachcha Singh being Bhagina of Chandra Shekhar Singh was entitled to share in the property of Chandra Shekhar because his mother was one of the heirs under the Hindu Succession Act.
7. Substantial question No. 3 whether the finding of the Court below with regard to inheritance after the death of Gulabo Kuer was against the principles of Hindu Law does not arise.
8. The case of the plaintiff was that after purchase he is in possession and ploughing and sowing the land. The suit was filed because defendant No. I tried to interfere with the possession of the plaintiff on 12-4-1982 after obtaining sale-deed in his favour from defendant No. 2. The sale-deed was null and void.
9. The defendants allegation was that the plaintiffs, case was filed as test case with an object to grab the entire property held by Gulabo Kuer. It is significant to state that Chandra Mukhi, who belonged to the family of defendants and filed Title Suit No. III of 1958 appeared as a witness on behalf of the plaintiff and she supported the case of the plaintiff to the effect that Deosundari Devi was sister of Chandra Shekhar Singh and Bachcha Singh was son of Deosundari Devi. It is very important piece of evidence in favour of the plaintiff.
10. According to the defendants, Deosundari Devi was daughter of Mahabir Singh and sister of Shiv Kumar Singh. If the defendants are able to establish that they are in possession over the entire property left behind by Gulabo Kuer, then the plaintiff could not succeed. The defendants claimed to have transferred certain property left behind by Gulabo Kuer and vendees are said to be in possession.
11. Learned Munsif in para 19 of the judgment has enumerated the evidence adduced by the parties. Learned Munsif first examined the evidence on the question as to whether Chandra Shekhar Singh was maternal uncle of Bachcha Singh. Learned Munsif decided in favour of the plaintiff in view of the evidence of his father Ram Nakhatra Singh, who was said to be son-in-law of Bhup Narain Singh and brother-in-law or Chandra Shekhar Singh. The trial Court, however, held that this witness was interested witness. Mr. Surya, learned Counsel for the appellants has forcefully argued that the trial Court itself did not find the evidence of father of Bachcha Singh to be reliable because he was interested witness.
12. I have examined the judgment of the trial Court and it cannot he inferred that the evidence of Ram Nakhatra Singh was found to be unreliable. Learned Munsif only stated that his evidence has to be scrutinized with great care. It cannot be accepted unless supported by positive evidence. Evidence of P.W. 5 was accepted by the trial Court. This witness had attended the Shradh of Gulabo Kuer on invitation of Bachcha Singh. Another witness Durga Pandey P.W. 11 was also very competent witness. He had conducted Shradi ceremony of Gulabo Kuer and for that he was given some land by Bachcha Singh in gift. Learned Counsel for the appellant has also criticized the evidence of this witness on minor points. The criticism is not justified. P.W. 12 also supported the case of the plaintiff. There are several witnesses, who had come forward to support the case of the plaintiff. That evidence has been considered for valid grounds. Negative evidence adduced by the defendants has been considered in para 31 of the judgment of the trial Court. D.W. 4 Mankeshwar Pandey stated that he had performed Shradh of Gulabo Kuer. He denied that Bachcha Singh had performed the Shradh and gifted land to Durga Pandey. This witness is brother of Durga Pandey P.W. 11. The evidence of this witness was rejected by the trial Court. Defendant No. 1 Videshi Raut claimed to he in possession of some land pursuant to sale-deed executed by Naresh Singh. This witness stated that Naresh Singh was in possession of the land for about 38 years. This witness was held to be wholly unreliable because Gulabo Kuer had died only eight years ago. The evidence of Awadh Singh D.W. 11 has been considered by the trial Court and he has been disbelieved. The evidence of Naresh Singh defendant No. 5 was also not accepted. The evidence has been considered in right prospective and suit was decreed.
13. The unsuccessful defendants (present appellants) impugned the legality of the decree of the trial Court by preferring appeal before the District Judge, Siwan. The grounds taken in the memo of appeal were of general nature. The appellants attacked the finding of the trial Court that Bachcha Singh was sister's son of Chandra Shekhar Singh. If this finding of the trial Court was erroneous, then the appellants were entitled to succeed. The endeavour of the appellants was to convince the appellate Court to hold that the evidence led by the plaintiff suffered from several defects which was not noticed by the trial Court and hence the finding was vulnerable,
14. Learned appellate Court considered the essential aspects of the case and arguments advanced on behalf of the appellants and was satisfied that the evidence of the plaintiff was far superior than the evidence led on behalf of the defendants (appellants). The appellate Court also found that the plaintiffs were in possession of the land after purchase. The decree of the trial Court was affirmed.
15. Mr. Surya, learned Counsel for the appellants has contended that the judgment of the appellate Court cannot be said to be in accordance with law. It was contended that the appellate Court has not discharged its responsibility as a Court of appeal as enjoined by Order XLI, Rule 31 C.P.C. which lays down that the appellate Court shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The provisions of Rule 31 are mandatory and failure to comply with this provision is serious defect.
16. In Girijanandini v. Rajendra Narain (1967) A.S.C. 1124, the Supreme Court held that the expression of general argument with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice. But it is not necessary that the judgment should record all the facts in great detail; nor is it necessary that it should deal mechanically with all the points. Rayarappan v. Madhavi
Amma 1949 F.C.R. 667. The appellate Court has substantially complied the provisions of Rule 31 although the judgment of the appellate Court is not very satisfactory.
17. Learned appellate Court in para-6 of the Judgment under appeal states as follows:
On going through the voluminous arguments made on behalf of both sides as well as the lower Court record, I arrive at the conclusion that the findings of learned trial Court concluding the suit in its decree and holding the vendor of the plaintiff (Bacha Singh) the only successor of the property of Gulabo Kuer in capacity of Bhagina and legal transfer of his right and title through Ext. 6 in favour of the plaintiff/respondent (Manager Singh) are quite correct legal and within the provisions of law and it nowhere requires any interference in appeal.
18. In my considered opinion, it cannot be argued that the finding of the Courts below are perverse and not consistent with the evidence. Of course, there are minor defects in the judgment but as a whole the judgment of the trial Court is very satisfactory although the judgment of the appellate Court is not very satisfactory.
19. In a recent decision of the Supreme Court in Kshitish Chandra Purkait v. Santosh Kumar Purkait and
Ors. JT 1997 (5) SC 202, the Supreme Court observed that it is not every question of law that could be permitted to be raised in second appeal. Only substantial question of law and not mere question of law could be raised in second appeal. The guidelines to determine was is substantial question of law within the meaning of Section 100 C.P.C. have been laid down by the Apex Court in a Constitution Bench decision in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co.
Ltd. : AIR1962SC1314 and in Mahindra and Mahindra Ltd. v. The Union of India and
Anr. AIR 1979 SC 789.
20. In the instant case, there is categoric finding that the plaintiffs' vendor Bachcha Singh had inherited the property after the death of his mother Deosundari Devi, who was legal heir of Gulabo Kuer after her death. This was finding on the question of fact. Before amendment of Section 100 C.P.C. second appeal did not lie on the finding of fact but it was held by several authorities that second appeal lay under Clause (a) of that Section where a legal conclusion was drawn from a finding of fact if such conclusion was found erroneous. The reason given was that whereas in determining the question of fact no application of any principle of law was involved in finding either the basic facts or in arriving at the ultimate conclusion in the case of mixed question of fact and law. The ultimate conclusion has to be drawn by applying principle of law to the basic findings. For instance the question of adverse possession is one of simple fact, no second appeal will lie but a second appeal will lie from a finding as to adverse possession when such finding is a mixed question of law and fact depending upon proper legal conclusion to be drawn from the findings as to simple facts (See Lachmeshwar v.
Manowar 19 IA 48).
21. Where the question in a suit was whether the defendant was found by a mortgage executed by his mother, and it was held that he was, their Lordships of the Privy Council held that the findings was substantially one of law, and that it was, therefore, open to question in second appeal. In course of judgment, their Lordships said: 'The facts found (by the lower appellate Court) need not be questioned. It is the soundness of the conclusions from them that is in question, and this is a matter of law'. (See Ram Gopal v.
Shamskhaton 19 IA 228). As stated by their Lordships of the Privy Council in another case, 'the proper legal effect of a proved fact is essentially a question of law', and the High Court is, therefore, entitled to interfere in second appeal (See Nafar Chandra Pal v.
Shukur (1918) 45 IA 183).
22. In Sri Meenakshi Mills Ltd. v. Commissioner of Income Tax : [1956]1SCR691 , the Supreme Court held that there is a distinction between a pure question of fact and a mixed question of law and fact.
23. It is, therefore, clear that the finding of fact in the present suit is not open to interference because it is not a case where the Courts below have drawn certain inference legally on the question of law. The findings arrived at are based on appreciation of facts and legal questions. This Court therefore, has no jurisdiction to interfere with the finding.
24. In the result, this appeal must be dismissed and it is so ordered. There shall be no order as to costs.