2025:HHC:34093 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.20 of 2016 Decided on: 08.10.2025 Prem Singh ...Appellant Versus Bimla Devi & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the appellant: Mr. Tara Singh Chauhan, Senior Advocate with Mr. Surya Chauhan, Advocate. For the respondents: Mr. Ashwani Sharma, Senior Advocate with Ms. Nisha Nalot, Advocate, for respondent No.1. Satyen Vaidya, Judge (oral) CMP No.20032 of 2023 The appellant has filed an application under Order 41 Rule 27 read with Section 151 of CPC for seeking leave to lead additional evidence. The appellant seeks to place on record certain documents in order to prove that the plaintiffs were not the daughter and son of Banto Devi. Learned counsel for the appellant has placed reliance on a copy of birth certificate of plaintiff Tarsem Singh procured by him under the Right to Information Act to show that the name of mother of Tarsem Singh is recorded as Premi. He also urged that in the copy of birth 2 2025:HHC:34093 certificate of Tarsem Singh filed in the original suit as Ext. L-4 the column of name of mother was blank. 2. Reply has been filed by the respondents to the application. They have seriously contested the plea raised by the appellant. The plaintiffs have also placed on record copy of birth certificate of Tarsem Singh issued on 25.06.2024 in which again the column of name of mother has been kept blank. 3. The appellant cannot seek to lead evidence in appeal as a matter of right. He has to show that the evidence now sought to be led was either not available at the time of trial of the case or could not be found despite due diligence. From the averments made in the application, none of these conditions have been satisfied. This Court also does not find the proposed evidence necessary for adjudication of the case for the reason that sufficient documentary evidence is available on the record of trial Court on the basis of which the findings of fact have been recorded. The reiteration of same issue cannot be allowed at the stage of second appeal, which already stands decided, more particularly, on the basis of documents produced by both the sides. Accordingly, there is no merit in the application, the same is dismissed. RSA No.20 of 2016 3 2025:HHC:34093 4. This regular second appeal has been filed against the judgment and decree dated 15.09.2015, passed by learned Additional District Judge, Ghumarwin, in Civil Appeal No.47/13 of 2014, whereby the judgment and decree dated 26.03.2014, passed by learned Civil Judge (Junior Division), Court No.3, District Bilaspur, H.P. in Civil Suit No.19/1 of 2011/2000 has been affirmed. 5. Respondents No.1 and 2 herein had filed Civil Suit No. 19/1 of 2011/2000 for declaration to the effect that they were owners-in-possession of the land measuring 10.3 bighas, comprised in Khasra No.76, 77, 109 in Khata Khatauni No.55/62 over 1/3rd share out of land measuring 0-1 bighas comprised in Khasra No.93, Khata Khatauni No.70/77 over 47th share out of 48th share in total land measuring 10.13 bighas comprised in Khasra Nos.55, 61, 78, 103, 107, 110, 122, 124 in Khata Kahatuni No.71/78 and 379 share out of total 384 share in land measuring 0-1 bighas comprised in Khasra N.101 Khta Khatuni No.72/79 situated in village Kol Pargna Baseh, Tehsil Jhandutta, District Bilaspur, H.P. (for short, “the suit land”) 6. Indisputably, the suit land was estate of deceased Banto Devi, wife of Shri Kirpu. The plaintiffs claimed ownership and possession in the suit land by virtue of Will allegedly executed by Smt. Banto Devi in their favour on 13.06.1999. In 4 2025:HHC:34093 alternative, the plaintiffs had pleaded that in case the Will was not proved, even then the plaintiffs were absolute owners of the suit land by way of natural succession being the legal heirs of Smt. Banto Devi. 7. The suit was filed because the suit land had been mutated in favour of the defendants vide mutation Nos.392 and 393 dated 26.04.2000 attested by Assistant Collector, 2nd Grade, Jhandutta, District Bilaspur, H.P., on the premise that after the death of Smt. Banto Devi, her estate would devolve on defendants who were related to Smt. Banto Devi from her paternal side. 8. In nutshell, the plaintiffs claimed right to the estate of Smt. Banto Devi firstly, on the basis of Will and in alternative as legal heirs of Smt. Banto Devi. On the other hand, the defendants were claiming the reversion of property in their favour on the premise that the suit property had been gifted to Smt. Banto Devi by her father Gobindu. 9. Learned trial Court had framed the following issues: “1. Whether Smt. Banto was mother of plaintiffswho had executed a valid will dated 13.6.1999 in favour of the plaintiffs of her land as alleged? OPP 5 2025:HHC:34093 2. Whether the plaintiffs are owners in possession over the suit land on the basis of will dated 13.6.99 as alleged?...OPP. 2a Whether the land measuring 10.3 bighas comprised in khasra Nos.33, 34, 35, 347/340, Khata Khatoni 44/80 as per jamabandi for the year 1948-49 was absolute property of late Smt. Banto Devi as gifted to her by late Shri Govindu son of Chuhru as alleged?....OPP. 2b Whether the land measuring 10.12 bighas comprised in khata khatoni no. 40/95 khasra Nos, 19, 26/2, 36, 36/1, 41/1, 48, 53,70,71/1 was occupied by late Smt. Banto Devi as non- occupancy tenant and she had acquired ownership rights qua this land and remaining 1 biswa as alleged ?....OPP 2c. Whether late Smt. Banto Devi daughter of Govindu and w/o Kirpu Ram was absolute owner of the suit property at the time of her death and the plaintiffs have succeeded to her estate as alleged?.... OPP 3. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? ...OPP 3a Whether the plaintiffs are entitled for the relief of possession by way of demolition of the structure, if raised by the defendants over the suit land as alleged ?...OPP. 6 2025:HHC:34093 4. Whether the mutation No. 392, 393 dated 26.4.2000 passed by AC-IInd Grade the name of defendants qua the estate of Banto are wrong and illegal as alleged ?.....OPP. 5. Whether the suit is not maintainable ?...OPD. 6. Whether the suit has not been properly valued?...OPD. 7. Whether the plaintiffs are estopped from filing the suit ?...OPD. 8. Whether the will dated 13.6.99 of Banto is a result of fraud, undue influence and mis representation played by the plaintiffs as alleged?...OPD 8(a) Whether the plaintiffs have no locus standi and cause of action to file the present suit as alleged ? OPD 9. Relief.” 10. Except issues No.2a, 2b, 2c, 4 and 8, all other issues were decided in negative. The suit of the plaintiffs was partly decreed and the plaintiffs were held entitled to succeed to the estate of Smt. Banto Devi after her death, in accordance with law 7 2025:HHC:34093 of succession. Mutation Nos.392 and 393 dated 26.04.200 were held invalid and were accordingly set aside. 11 One for the defendants Prem Singh approached the first appellate Court by filing appeal under Section 96 of the Code of Civil Procedure. However, he remained unsuccessful and the appeal filed by Prem Singh has been dismissed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. vide impugned judgment and decree by affirming the findings of fact recorded by learned trial Court. 12. This appeal was admitted on 01.06.2016 on the following substantial questions of law: “(1) Whether on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable? (2) Whether the provisions contained under Section 15(1)(2)of the Hindu Succession Act have erroneously been applied and on account of that findings as recorded are vitiated, hence the impugned judgment and decree is not legally sustainable? 13. I have heard learned counsel for the parties and have also perused the record carefully. 8 2025:HHC:34093 14. Both the Courts have held the plaintiffs entitled to succeed to the estate of Smt Banto Devi by natural succession. The Will propounded by the plaintiffs has not been found to be a genuine document. Learned trial Court, on the basis of oral and documentary evidence placed on record by the parties, has concluded that Smt. Banto Devi was survived by the plaintiffs as her legal heirs. The plaintiffs have been held to be the daughter and son of Smt. Banto Devi. The plea raised by the defendants that the plaintiffs were daughter and son of some other Kirpu Ram, resident of village Kakred, has been disbelieved. 15. Learned first appellate Court on re-appreciation of evidence has affirmed the similar findings. 16. I have gone through the evidence on record to assess, whether the findings returned by both the Courts are borne from the evidence, and have found no illegality or perversity. Reference can be made to document i.e. jamabandi Ext. P-16, wherein the plaintiffs are shown as son and daughter of Kirpu, S/o Jodha and Banto Devi has been shown as widow of Kirpu, S/o Jodha. In chart of pedigree Ext. P-15, placed on record, also the plaintiffs have been shown as daughter and son of Kirpu, S/o Jodha. Another document revealing the pedigree of the family of Kirpu has been exhibited as Ext. L-6 on record, which also reflects the same position. Thus, the view taken by 9 2025:HHC:34093 both the Courts is a possible view based on the documentary evidence. On the other hand, there is no clinching and convincing evidence to prove that the plaintiffs were not the daughter and son of Kirpu, S/o Jodha and were children of some other Kirpu as alleged by the defendants. 17. The estate of Smt. Banto Devi after her death was mutated in favour of defendants on the premise that the same would revert back in terms of Section 15 of Hindu Succession Act. It is the admitted case of the parties that Smt. Banto Devi had become owner of the suit land by way of gift deed executed by her father Gobindu. Thus, it was not an inherited property. Section 15(2)(a) of Hindu Succession Act has application in a situation where female Hindu inherits the property from her father or mother and if the female Hindu has no son or daughter or children of any pre-deceased son or daughter, the devolution of estate is upon the heirs of her father. Since the fact situation in the case at hand is entirely different, the provision of Section 15(2)(a) of Hindu Succession Act will have no application and the property i.e. the suit land would not devolve upon the heirs of the father of Banto Devi. 18. This Court in regular second appeal will not interfere with the concurrent findings of fact unless found to be illegal or perverse, which is not the case here, as notice above. Since, the 10 2025:HHC:34093 view formed by both the Courts is a possible view borne from the records, again no scope of interference in such view is there. 19. In result, the substantial questions of law are decided against the appellant. The appeal is dismissed. Judgment and decree dated 15.09.2015, passed by learned Additional District Judge, Ghumarwin, in Civil Appeal No.47/13 of 2014, whereby the judgment and decree dated 26.03.2014, passed by learned Civil Judge (Junior Division), Court No.3, Ghumarwn, District Bilaspur, H.P. in Civil Suit No.19/1 of 2011/2000 has been affirmed, is further affirmed. 20. Pending application(s), if any, shall also stand disposed of. 21. Decree sheet be prepared accordingly. (Satyen Vaidya ) Judge 08th October, 2025 (vt)