1 2025:CGHC:41962 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved on : 17-6-2025 Delivered on : 20 -08-2025 SA No. 318 of 2011 1. Keshbo (Died) Through Legal Heirs As Per Hon'ble Court Order Dated 10-07-2015. 1.1 - (A) Phool Kunwar W/o Late Keshbo Aged About 55 Years R/o Village Lamipali, Post Office Tousir, Thana Baramkela, District : Raigarh, Chhattisgarh. 1.2 - (B) Saheb Ram S/o Late Keshbo Aged About 26 Years R/o Village Lamipali, Post Office Tousir, Thana Baramkela, District : Raigarh, Chhattisgarh. 1.3 - (C) Shiv Kumari D/o Late Keshbo, W/o Shri Surit Aged About 30 Years R/o Village And Post Gobarsingha, Thana Baramkela, District : Raigarh, Chhattisgarh. 1.4 - (D) Smt. Laxmi D/o Keshbo, W/o Shri Jeharu R/o Village Satidarra, P.O. Kapashira, Thana Amabhana, District : Bargarh , Orissa. ... Appellants/Defendants versus 1. Tejram S/o Late Mukund Patel Aged About 63 Years Caste Aghariya, Occupation - Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh 2. Shyam Lal (Died) through Legal Heirs As Per Hon'ble Court Order Dated 09-02-2023. 2.1 - (A) Urmila W/o Shyam Lal Aged About 70 Years R/o Village Mekara, Post Karanpali, Tahsil Baramkela, District : Sarangarh-Bilaigarh, Chhattisgarh. 2.2 - (B) Gangadhar S/o Late Shyam Lal Aged About 50 Years R/o Village Mekara, Post Karanpali, Tahsil Baramkela, District : Sarangarh- Bilaigarh, Chhattisgarh. 2 2.3 - (C) Jeet Ram S/o Late Shyam Lal Aged About 40 Years R/o Village Mekara, Post Karanpali, Tahsil Baramkela, District : Sarangarh- Bilaigarh, Chhattisgarh. 3. Dayal S/o Late Mukund Patel Aged About 65 Years Caste Aghariya, Occupation - Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh. 4. Kuber S/o Late Mukund Patel Aged About 55 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh 5. Amritlal S/o Late Mukund Patel Aged About 47 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh 6. Bharat S/o Mukund Patel Aged About 45 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh. 7. Devdhar S/o Late Atmaram Patel Aged About 45 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh 8. Shobharam (Died) Through Legal Heirs As Per Hon'ble Court Order Dated 09-02-2023. 8.1 - (A) Ramvati W/o Shobharam Aged About 87 Years R/o Village Lamipali, Post Tousir, Tahsil Baramkela, District : Sarangarh- Bilaigarh, Chhattisgarh. 8.2 - (B) Patiram S/o Shobharam Aged About 45 Years R/o Village Lamipali, Post Tousir, Tahsil Baramkela, District : Sarangarh- Bilaigarh, Chhattisgarh. 8.3 - (C) Ratiram S/o Shobharam Aged About 40 Years R/o Village Lamipali, Post Tousir, Tahsil Baramkela, District : Sarangarh- Bilaigarh, Chhattisgarh. 8.4 - (D) Siriya D/o Shobharam, W/o Kamal Singh Patel Aged About 35 Years R/o Village Padkipali, Post Karanpali, Tahsil Baramkela, District : Sarangarh-Bilaigarh, Chhattisgarh 8.5 - (E) Chandravati D/o Shobharam, W/o Raghumani Patel Aged About 32 Years R/o Village Padkipali, Post Karanpali, Tahsil Baramkela, District : Sarangarh-Bilaigarh, Chhattisgarh 8.6 - (F) Belmati D/o Shobharam, W/o Gora Naik Aged About 30 Years R/o Village Sandaripali, Post Kombo, Tahsil Bhathali, District : Bargarh *, Orissa. 9. Minketan S/o Late Kriparam Aged About 65 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh. 3 10. Parmanand S/o Late Kriparam Patel Aged About 60 Years Caste- Aghariya, Occupation- Agriculturist, R/o Village Lamipali, Tahsil Baramkela, District : Raigarh, Chhattisgarh 11. State Of Chhattisgarh Through Collector, Raigarh, District : Raigarh, Chhattisgarh ... Respondents For Appellants. : Mr. Rajeev Shrivastava, Sr. Advocate with Mr. Dhani Ram Patel and Ms. Kajal Chandra, Advocates For Respondents No. 1 to 10 : None appears though served For Respondent No.11/State : Mr. Ajay Kumrani Panel Lawyer (Hon’ble Mr. Justice Narendra Kumar Vyas) C A V Judgment 1. This is defendant’s Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 25-7-2011 passed by the Additional District Judge, Sarangarh, District Raigarh in Civil Appeal No. 19-A/2010 by which the learned First Appellate Court has reversed the judgment and decree dated 28-10- 2010 passed by the learned Civil Judge, Class-II, Sarangarh, District Raigarh in Civil Suit No. 10-A/09. 2. This appeal has been admitted by this Court on 30-01-2013 on the following substantial questions of law:- “(i).Whether the lower appellate Court was justified in holding that partition has not been effected between the parties? (ii) Whether the lower appellate Court was justified in declaring the sale deed dated 5-2-2009 executed by respondent No.2 in favour of the appellant herein, null and void and not binding, in which the plaintiff/appellant before the First Appellate Court was not party to the document ?”. 4 3. While hearing the arguments of learned counsel for the parties, on 16- 8-2022 this Court has also framed the following additional substantial question of law: “(iii) Whether the whole sale deed which is executed by one of the share holders for the area beyond his share in the undivided property can be declared null and void?” 4. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the suit before the trial Court. 5. The plaintiff has filed a civil suit for declaration of title, 1/3rd share of suit property described in Schedule-A of the plaint, partition and to declare that the sale deed executed by the defendant No.1 in favour of the defendant No. 2 is null and void mainly contending that: (a) The plaintiff and defendants are members of the same family and genealogy has also been described in the plaint. It has also been contended that the plaintiff and defendant owned a land in their joint name situated at village Lamipali, Tahsil Baramkela, District Raigarh, total Khasra No. 35, Rakba 3.423 hectares (hereinafter referred to as “suit property”). The said suit property has not been partitioned. The parties were doing agricultural work as per their convenience, the defendant No. 1 without obtaining permission from co-owners of the land sold the land to defendant No. 2 who is not in possession of the said land, but the defendant No. 2 got his name mutated in the revenue records and is trying to dispossess the plaintiff from suit property. The defendant No. 1 vide sale deed dated 05.02.2009 sold the lands bearing Khasra No. 11, total area 0.708 hectare which is excess to his share and described in the Schedule “B” of the plaint. When this fact came to the knowledge 5 of the plaintiff, he obtained the certified copy of the sale deed on 3- 7-2009, then only it came to his knowledge that defendant No. 1 has sold more than his share of land vide sale deed dated 05.02.2009 which has necessitated the plaintiff to file a suit on 29.07.2009. (b) It has also been contended that in view of the order passed on 04.06.2009 by the Naib Tehsildar Baramkela, by which the name of defendant No. 2 is recorded he is trying dispossess the plaintiff from the suit property described in Schedule “B” of the plaint though the order of the Tehsildar dated 04.06.2009 is an illegal and void order and not binding upon the plaintiff. 6. The defendants No.2 has filed his written statement denying the averments in the plaint mainly contending that: (a) He has lawfully purchased the disputed land after payment of entire consideration and after purchase, the land has been properly mutated in his name and he is in possession of the suit land. He denied that the plaintiff and the defendants are in possession of the suit property mentioned in Schedule “A” of the plaint and mutual partition has not taken place between them. It is further contended that the suit property described in Schedule-”B” has been sold to him with the knowledge and consent of the plaintiff and remaining defendants by the defendant No. 1. It has been further contended that the suit property described in Schedule “B” of the plaint fell in the share and possession of defendant No. 2 who has sold the suit property for sale consideration of Rs.1,38,000/-. 6 (b) It has been further contended that the property described in Schedule “B” Khasra No. 11 area 0.708 is not a disputed property and the Tahsildar after due process of law has passed the order of mutation, therefore, the mutation order is not liable to be interfered and it is binding to all the parties. It has also been contended that the suit is properly valued, therefore, it is not maintainable and would pray for dismissal of the suit. 7. The defendants No. 1 2, 7, 9 and 10 filed their written statement denying the averments in the plaint mainly contending that the land described in Schedule “A” of the plaint belongs to Tilark Ram who was issue-less and he partitioned the land among his four nephews namely late Mukund, Shobharam, late Atma Ram and late Kriparam 35-40 years ago and they were in possession of the land mentioned in Schedule-A of the plaint. It has also been contended that after death of Atmaram, Kriparam and Mukund their legal representatives are in possession of the suit property wherein they are doing agricultural work. It has also been contended that the suit property described in Schedule “B” of the plaint belongs to defendant No.1 to 7 which was sold to defendant No.2 and the defendant No.2 is in peaceful possession of the land and would pray for dismissal of the suit. 8. On the pleadings of the parties learned trial Court has framed as many as 7 issues, the issue No. 1 to 3 are relevant, therefore, they are extracted below as under: “1- D;k okni= layXu ifjf’k"V v of.kZr oknHkwfe esa oknh ,oa izfroknh Ø0 1 ls 10 rd lkewfgd :i ls 'kkfey 'kjhd [kkrk ,oa dCtk gS\ 2- D;k oknHkwfe dk oknh dk 1@3 Hkkx ij LokRoka’k gksus ls mijksDrkuqlkj oknHkwfe dk oknh n[ky dCtk izkIr djus dk vf/kdkjh gS\ 3- D;k izfroknh Ø0 1 }kjk izfroknh Ø0 2 ds i{k esa fu"ikfnr c;ukek fnukad 5@2@09 voS/k ,oa 'kwU; gksus ls oknh ij ca/kudkjh ugha gS\ ” 7 9. The plaintiff to substantiate his case has examined himself as PW/1, Bahadul (PW/2), Kartikram (PW/3), Sunderlal (PW/4) and Anand Singh (PW/5) and exhibited documents ie., Khasra Panchsala (Ex.P/1 and P/2), Sale deed (Ex.P/3), Copy of the order dated 4-6-2009 of Tahsildar, Baramkela (Ex.P/4) and objection letter to Tahsildar, Baramkela (Ex.P/5 and P/6). 10. In order to prove his case defendant examined Shyamlal (DW/1), Keshbo (DW/2), Paramanand (DW/3), Tunku Bariha (DW/4) and Kamal Kumar (DW/5) but they have not exhibited any document. 11. PW/1 Tejram in his examination-in-chief has reiterated the stand taken by him in the plaint. The said witness was extensively cross-examined wherein he has denied that Tilakram has divided the entire property in his lifetime to all his nephews. He has also stated that no partition has taken place, therefore, the land is still barren land. He has also denied that due to partition Shobhram, Aatmaram, Kriparam and Mukund Ram were doing agricultural work. 12. PW/2 Bahadul has supported the case of the plaintiff and was cross- examined by the defendant wherein he has denied that partition has taken place. Kartik Ram (PW/3) has corroborated the stand taken by Bahadul (PW/2). In his cross-examination in para 7 he has stated that Mukund, Shobharam, Antaram and Kriparam are not nephews of Tilakram. PW/4 Sunderlal has adopted the same stand taken by PW/2 Bahadul and PW/3 Kartikram. He admitted in para 5 of his cross examination that Tilakram was having four nephews namely Mukund, Shobharam, Antaram and Kriparam and he has admitted that partition has not taken place. 8 13. DW/1 Shyamlal in his examination-in-chief has reiterated the stand taken by him and in the cross-examination he has stated that partition has taken, but account has not been corrected. The witness has also admitted that all other Khatedars have not been arrayed as party in the proceeding before the Tehsildar. He has also admitted that since partition has not taken place, therefore, names have not been recorded. He has also admitted that which land has been fallen within the share of individuals cannot be explained by him. He has also admitted that he has sold the property which he has obtained from Tilakram and he has sold 1 acre 69 dismal. He has also admitted that in the revenue Court they have not filed case for partition. He has also admitted that by concealment he has sold the property. 14. DW/2 Keshbo adopted the stand taken by DW/1 Shyamlal and stated that the Court of Tahsildar, Baramkela had published a notice and invited objection, therefore, Tahsildar has properly done mutation in his name. He has admitted in his cross examination that after death of late Tilakram, the land of his account was recorded in the name of late Mukund, Tinkuram, Parmand, Shyamlal, Devdhar and Shobaram in Patwari records. He has further admitted in cross examination that he had taken oral consent from the plaintiff and other defendants for purchasing of the land prior to execution of sale deed. He has also admitted that plaintiff and other co-account holders had not received notice to raise objection. 15. DW/3 Parmanand has supported the case of the defendant and also stated that as per his knowledge Shyamlal has sold the said land to Defendant No.2 Keshbo with the knowledge and consent of the plaintiff, Devdhar and all the defendants. He has admitted in his cross 9 examination that the fact which he has mentioned in the examination- in-chief he has not submitted any documents. 16. DW/4 Thunku was examined before the trial Court who has supported the case of defendant. However, he has admitted in cross examination that he did not have knowledge that in which year, month and date, Tilakram has partitioned his land in the names of his four nephews. He has further stated that after registration of the land, dispute started between Tejram and Keshbo regarding farming on suit land. 17. DW/5 Kamal Kumar has supported the case of the defendant and in the cross-examination he has admitted that at the time of registration except Shyamlal and Keshbo, plaintiff and other defendants were not present before the office of Registrar for registration of the sale deed. 18. Learned trial Court on the basis of evidence and material on record vide order dated 28-10-2010 has dismissed the suit filed by the plaintiff holding that the plaintiff failed to prove his case and the suit property was properly mutated by order dated 4-6-2009 (Ex.P/4). It has also been held that mutation order dated 04.06.2009 is binding upon the plaintiff. Being aggrieved with the aforesaid order, the plaintiff has filed the Civil Appeal before the First Appellate Court and the First Appellate Court on the basis of evidence and material on record has allowed the appeal filed by the plaintiff holding that the partition among the parties has not been proved and sale deed dated 5-2-2009 is void and same is not binding on the parties. Being aggrieved with this order, the defendant No. 2 Keshbo has preferred this second appeal before this Court. 10 19. Mr. Rajeev Shrivastava, learned Sr. Advocate assisted by Mr. Dhani Ram Patel, for appellants/defendants would submit that: (a) Though the learned First Appellate Court has recorded its finding that the grounds taken in memo of appeal by the appellant deserve to be rejected, but it has committed illegality in recording its finding that no partition has been taken between the nephews of late Tilakram and still it has recorded its finding that the defendant No. 2 has sold the property more than the share which he would have obtained and accordingly, it has passed the judgment and decree declaring the sale deed dated 05.02.2009 is null and void and also set aside the order dated 04.06.2009 passed by Naib Tehsildar. It has also recorded its finding that Shyamlal defendant No. 1 has sold 1.75 acre land which has been described in Schedule “B” of the plaint to Keshbo and since 1.75 acre will not fall within the share of Shamlal, therefore, it has held that he has sold the property more than his share, as such, sale deed is void ab initio for more than his share, but it has held that the plaintiff is not entitled to get entire relief as in the plaint he has taken -different stand. This finding has attained finality as no cross objection was filed by the plaintiff Tejram. (b) It has also been contended the plaintiff has taken inconstancy pleadings still the First Appellate Court has allowed the appeal and granted the relief clause No. 1 and 2 i.e. declaration of title of 1/3rd share of suit property described in Schedule “A” partition and separate possession in favour of the plaintiff without any challenge by the plaintiff. Thus, the finding recorded by the trial Court attained finality, therefore, he would submit that the substantial question of 11 law No.1 framed by this Court be answered in their favour of the appellant and it may be held that partition has already taken place between the parties. He would further submit that since the partition has taken place, therefore, the learned first appellate Court has committed illegality in declaring the sale deed to be null and void. Similarly, he would further submit that even if partition has not taken place, therefore, one of the shareholders of the joint family can sell the property to his share, therefore, the substantial question of law No. 2 should also be answered in favour of the appellant. (c) So far as substantial question of law No. 3 is concerned, he would submit that since the question of law No. 1 and 2 deserves to be answered in favour of the appellant, then the substantial question of law No. 3 also deserves to be answered in their favour. He would further submit that the impugned judgment and decree passed by the learned trial Court dismissing the suit of the plaintiff is just and proper and the learned First Appellate Court has committed error of law by reversing the said well reasoned judgment and decree which is illegal, arbitrary and same is liable to be set aside. In support of his submissions, he has referred to the judgments of Hon’ble Supreme Court in the case of Santosh Hazari vs. Purshottam Tiwari, reported in (2001) 3 SCC 179, L.N. Ashwathama & another vs. P. Prakash reported in (2009) 13 SCC 229, Gangubai Raghunatht Ayare vs. Gangaram Sakharam Dhuri through L.R.s. and others, reported in 2025 Online SC 565, Suresh Kumar vs. Anil Kakaria, reported in 12 (2018) 1 SCC 86 and Nek Pal and others vs. Nagar Palika Parishad and others, reported in 2024 SCC Online SC 1873. 20. Contesting respondents No.1 to 10 are not representing in this appeal despite service of notice and issuance of SPC by this Court as reflected from the order sheet dated 22.01.2025 though the issuance of intimation about hearing of the case was served upon the elder son of plaintiff Tejram Patel on 15.02.2025 for appearance before this Court on 27.03.2025, but he has chosen not to appear however, learned State counsel assisted the Court during course of arguments. 21. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records of both the Courts below with utmost circumspection. Discussion and finding on substantial question of law No. 1: 22. To appreciate this question, it is expedient for this Court before adverting to the evidence how a partition can be said to have been done between the parties with regard to immovable property has to be ascertained by this Court. There are three modes of partition (a) partition can be executed by written partition deed signed by all the stakeholders, (b) the partition can be oral partition which is acceptable if mutual consent is available on record and revenue records are corrected accordingly and (c) a concrete action demonstrating acceptance is available. However, it is well settled position of law that burden of proof regarding oral partition is on the person alleging partition. The partition can also be ascertained by action of the parties demonstrating partition like separate possession, separate cultivation in case of agriculture land or separate enjoyment of property can also 13 indicate partition. Therefore, it is incumbent upon the defendant No. 1 to demonstrate that the said eventualities have taken place between the parties by placing sufficient material on record or evidence in this behalf. The Hon'ble Supreme Court while recognizing the oral partition of ancestral property of Hindu family has considered the eventualities which can be a material for consideration to record a finding of partition. The Hon'ble Supreme Court in the case of Digambar Adhar Patil vs. Devram Girdhar Patil (died) and another, reported in 1995 Supp. (2) SCC 428 has considered the eventualities where partition can be presumed and held as under: “5. We find no force in the contention. Section 32-B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine the ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 gunta. The area of dispute is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is includable in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the tribunals below negatived it on two grounds, namely, in the cultivation column of the revenue records it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor was the deed of the partition produced. Under the Hindu law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is 14 enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned; it corroborates the oral evidence given by the brother and lends assurance to accept it”. 23. From the above factual and legal position, it is quite vivid that no partition has taken place between the nephews of Tilakram. Thus, the First First Appellate has appreciated the evidence, material on record and thereafter it is held that no partition has taken place. Thus, it is a finding of fact which is neither perverse nor contrary to the evidence or rebutted by the appellant. 24. From the evidence, it is quite vivid that the defendant No. 1 has admitted that names of Mukund, Tinkuram, Parmand, Shyamlal, Devdhar and Shobaram have been recorded in the revenue records and in fact the defendant in his evidence has also admitted that since partition has not taken place, therefore, names have not been recorded. The learned first appellate Court after appreciating the evidence categorically recorded its finding that the defendant has also not stated about the partition. The learned first appellate Court has discussed the evidence adduced before the trial Court in paragraphs 7 and 8 has discussed the evidence and paragraph 11 it has given its finding that Tilakram died issue-less and Mukund, Shobharam were the nephews of Tilakram and no partition during lifetime of Tilakram has taken place, therefore, the property inherited by Tilakram will be distributed to his brothers in equal shares and accordingly, the legal heirs will inherit the suit property. It has also recorded its finding that Shyamlal defendant No. 1 has sold 1.75 acre land which has been 15 described in Schedule “B” of the plaint to Keshbo and since 1.75 acre of land will not fall within the share of Shamlal, therefore, it has held that he has sold the property more than his share, as such, sale deed is void ab initio for more than his share, but it has held that the plaintiff is not entitled to get entire relief as in the plaint he has taken different- different stand. But finally the learned first appellate Court has declared the sale deed as null and void by recording its finding in paragraph 13 of the judgment. The finding recorded by the first appellate Court on appreciation of evidence and material on record that no partition has taken place. The first appellate Court analyzed the entire oral evidence adduced by both the parties as well as documentary evidence relied by the other side in exercising its power under Section 96 of the CPC which is the authority to reconsider the evidence under Section 96 of CPC not to the High Court in exercise of its authority while hearing the Second Appeal under Section 100 of CPC. The record of the case clearly demonstrates that the appellant is unable to make an exceptional circumstance provided under Section 103 of CPC for re-appreciation of evidence, including the contents of the evidence, therefore, this Court cannot set aside the judgment and decree of the first appellate Court. 25. The Hon’ble Supreme Court in case of Nazir Mohamed vs. J. Kamala & Others reported in 2020 (19) SCC 57 in paragraphs 32 to 33.4 has held as under: “32. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam5. An entirely new point, raised for the first time, 16 before the High Court, is not a question involved in the case, unless it goes to the root of the matter. 33. The principles relating to Section 100 CPC relevant for this case may be summarised thus : 33.1 An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. 33.2 The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. 33.3 A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates the settled position of law. 33.4 The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 26. Again the Hon’ble Supreme Court in case of Angadi Chandranna vs. Shankar & Others reported in 2025 INSC 532 in paragraph 12.1 has held as under: “12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findings of the 17 First Appellant Court by re-appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re-determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re- appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re- appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, much less a substantial one. It will be useful to refer to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows: “33. The principles relating to Section 100 of the Code of Civil Procedure relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. 18 (iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously. 35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference. 36. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court.”” [2022 INSC 997] 27. Thus, the substantial question of law No. 1 framed by this Court deserves to be answered against the appellant/defendant and in favour of the plaintiff and it is held that first appellate Court was justified in recording its finding that partition has not taken place. Discussion and finding on substantial question of law No. 2 & 3: 28. So far as substantial question of law No. 2 and 3 are concerned, since this Court has answered the substantial question of law No. 1 against 19 the appellant and affirmed the finding of the first appellate Court that no partition has been taken place, therefore, the sale deed beyond the share of the defendant No. 1 is without jurisdiction and non-est as unauthorized person is not competent to contact and is dis-entitled to transfer transferrable property or not authorized to dispose of transferrable property which is not his own as he cannot be qualified to a person competent to transfer in view of Section 7 of the Transfer of Property Act, 1882. The Hon’ble Supreme Court case of Balai Chandra Mondal vs. Indurekha Debi & Others reported in 1973 (1) SCC 284 in paragraph 4 has held as under: “4. …We see absolutely no justification for making such an inference, It is a thoroughly well-recognised principle that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Section 7 of the Transfer of Property Act only a person authorized to dispose of transferable property not his own is competent to transfer it either wholly or in part.” 29. Thus, the first appellate Court after extensively examine the evidence has recorded its finding that since no equal partition has been taken place between the four nephews of late Tilakram, therefore, the sale deed to the extent beyond the share of the defendant No. 1 is illegal and liable to be set aside. Thus, the substantial question of law No. 2 and 3 is answered partly in favour of the defendant No. 1/appellant by modifying the judgment and decree of the learned first appellate Court to the extent that the sale deed which has been executed with regard to the suit property described in Schedule “B” of the plaint to the extent of share of the defendant No. 2 is held to be legal and justified. 30. Accordingly, the second appeal is partly allowed modifying the judgment and decree passed by the first appellate Court to the extent 20 that the sale deed executed in favour of the defendant No. 2/appellant Keshbo beyond the share of defendant No. 1 is null and void and to the extent of the share of defendant No. 1 is legal and justified. 31. Consequentially, the second appeal is partly allowed. 32. A decree be drawn up accordingly. Sd/- SSdd/- (Narendra Kumar Vyas) Judge Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.08.20 17:20:24 +0530