1 2025:CGHC:47245 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 258 of 2018 1 – Hemlal, S/o. Khamman Lal Satnami, Occupation Labour, R/o Village Tulsi (Baradera), P. S. Mandir Hasoud, Tahsil Mandir Hasaoud, District Raipur, Chhattisgarh. 2 - Smt. Shanti Bai, W/o. Tandanlal Satnami, Occupation House Wife, R/o Village Girhola, Tahsil Ahiwara, District- Durg, --- Appellants versus 1 - Smt. Bindu Bai Maheshwari, W/o. Tekram Maheshwari, Aged About 40 Years R/o Mahavir Nagar, Near Gurudwara, New Puraina, Raipur, Tahsil And District- Raipur, Chhattisgarh. 2 - Kabir Sewa Ahsram Gudguda, Through, Chairman And Sarvrakara, Guru Sarvottam Das, Village Gudguda, Tahsil Arang, District Raipur, chhattisgarh. Through Satguru Kabir Sewa Sansthan, Near Kapda Market Pandritarai, Tahsil And District Raipur, Chhattisgarh. . 3 - State Of Chhattisgarh, Through Collector, Raipur Chhattisgarh. .. - ---- Respondents ____________________________________________________________ For Appellants : Mr. Sushobhit Singh, Advocate For Respondent No.2 : Mr. Aniruddha Shrivastava, Advocate For Respondent No.3/State : Mr. Kishan Sahu, Dy.G.A Hon'ble Shri Justice Parth Prateem Sahu Order On Board 15/09/2025 1. This second appeal U/s.100 of C.P.C. is filed by appellants/defendants questioning the legality and sustainability of the impugned judgment and decree dated 15.03.2018, passed in Civil Appeal No.92-A/2017, BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.11.04 10:28:01 +0530 2 whereby, the learned First Additional District Judge, Raipur, District – Raipur (C.G.) dismissed the appeal filed by appellants/defendants, upholding the judgment and decree dated 25.09.2017, in Civil Suit No.CFCS 3-A/2012 wherein learned 7th Civil Judge Class -2, Raipur allowed the suit of the plaintiff/respondent No.2. 2. The facts relevant for the disposal of this appeal are that the plaintiff/respondent No. 2 filed a civil suit seeking a declaration of title and for maintaining the land records in respect of land bearing Khasra No. 13, admeasuring 0.78 hectares, situated at village Gudguda, Tahsil Arang, District Raipur, in the name of the plaintiff. The plaintiff also sought a decree of permanent injunction against defendants No. 1 to 3 and further prayed for declaration will deed dated 25.10.2009 to be null and void, on the ground that the suit land had been purchased by the earlier President and Sarvarakar, Guru Swarup Das Saheb, through a registered sale deed dated 07.09.2007. It was recorded in the name of plaintiff, however, one will deed alleged to have been executed by Swaroop Das in favour of Smt. Bindu Maheshwari, W/o. Tek Ram Maheshwari dated 25.10.2009. It was also pleaded that Swaroop Das due to his critical condition and paralytic attack was admitted in the hospital from 24.10.2009 to 28.10.2009 at Kanwar Nursing Home, Raipur and was in comma. With the consent of the doctor, he was discharged and thereafter died in Ashram on 31.10.2009. Execution of alleged will deed is in between the period when Swaroop Das was admitted in the hospital. It was pleaded that will deed is forged and fabricated document. 3 3. Defendant No.1, beneficiary to the will and defendant No.2 and 3 claiming themselves to be legal representatives of Swaroop Das being son and daughter have filed joint reply to the plaint filed by plaintiff. Defendant No.1 supported execution of will, however, in the written statement it was further pleaded that if this Court comes to conclusion that will could not be proved, then defendant No.2 and 3 being legal representative of Swaroop Das would be entitled for property, subject matter of the suit. 4. Learned trial Court based on the pleadings framed as many as five issues for consideration and after full fledged trial based on the evidence available on record, held that execution of the will dated 25.10.2009 is not proved in accordance with provisions U/s. 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. It is further recorded that Swaroop Das being Sarvarakar has earlier sold the land of Ashram in the year 1991 while mentioning the name of Guru in place of his father’s name and further when sale deed was executed for purchasing the land in favour of Ashram on 07.09.2007 again, his name has been mentioned as Swaroop Das showing the name of Guru as Sewak Das and observed that land was purchased in the capacity of the Sarvarakar of the Ashram and decreed the suit in favour of plaintiff. Judgment and decree passed by learned trial Court was put to challenge by defendants, claiming defendant No.2 and 3 to be legal representatives of Swaroop Das, filed first appeal challenging the judgment and decree on the ground that finding recorded by the learned trial Court that suit property was purchased in the capacity of Sarvarakar of 4 Ashsram to be without evidence and contrary to law. Finding of learned trial court on Will in absence of challenge to execution of Will by defendant No.2 and 3 is not correct. 5. Learned counsel for appellants would submit that admittedly, the land was purchased in the name of Swaroop Das though showing his Guru’s name as Sevak Das (in place of father’s name) but it cannot be presumed that once a person, become Sanyasi and joined Ashram, he cannot purchase any property on his own name. Therefore, the finding recorded by learned trial Court that the suit property was purchased for Ashram in the name of Swaroop Das is not sustainable. In support of his contention, he placed reliance upon decision of Hon’ble Supreme Court in case of Math Sauna & Ors. Vs. Kedarnath @ Uma Shankar & Ors, reported in AIR 1981 SC 1878. 6. Counsel for respondent No.2 would oppose the submission of learned counsel for appellants and would submit that concurrent finding of fact is recorded by both the Courts with regard to purchase of land in the name of Ashram by its Sarvarakar. He contended that since long prior to the death of Swaroop Das, he has left his family and joined the Ashram. It was pleaded in the plaint that in the year 1991 Swaroop Das sold property of Ashram mentioning his Guru’s name in front of his name, which is also observed by learned trial Court in its judgment and decree from which it is apparent that much prior to 2007 that when disputed property was purchased he has left the family. It is also his contention that once a person enters into religious order, he severs his connection with the members of his natural family. As soon as he joined Ashram he would come under either of three heads the 5 Vanaprastha, hermit, Sanyasi or Yati or ascetic. He also contended that once Swaroop Das became devotee, property purchased while living in Ashram as Sarvarakar, would be of Ashram. More so when there is specific pleading that property was purchased from income of property sold in the year 1991. In support of his contention, he places reliance upon the decision of High Court of Madras in case of Shanmugha Desika Gnanasambanda Vs. Controller of Estate Duty, reported in [1985] 153 ITR 390 (MAD) and the judgment of Hon’ble Supreme Court in case of Shri Krishna Singh Vs. Mathura Ahir & Ors, reported in (1981) 3 SCC 689. 7. I have heard learned counsel for parties and perused record of Courts below. 8. In the memo of appeal, the appellants has proposed the following substantial question of law : “1. Whether the Courts below have committed a manifest error of law as per the provisions of Section 101 & Section 102 of the Indian Evidence Act while decreeing the suit of the plaintiff by shifting the burden of proof on the defendants? 2. Whether the Courts below have wrongly shifted the burden of proof on the defendants more so when the plaintiff itself has failed to proof its own title over the suit land? 3. Whether the Courts below have erred in law by raising a presumption that the Sarvrakar of the Ashram cannot hold private personal property apart from the property of the Ashram? 4. Whether the suit filed by the plaintiff ought to have been dismissed when admittedly the plaintiff has failed to proof its title over the suit land by leading evidence as to the source of funds for the purchaser of the suit land? 9. This appeal is not filed by beneficiary of the so called Will dated 25.10.2009 (defendant No.1), but it is filed by defendant No.2 and 3, 6 who were claiming their rights being legal representative of Swarup Das Saheb. 10. Learned trial Court while considering the pleadings made by defendants that vide Will dated 25.10.2009, suit property was given to defendant No.1 has recorded a finding that burden to prove the valid execution of Will according to Section 101 of Indian Evidence Act, 1872 was upon defendants, who pleaded and claimed their rights on disputed property based on the Will. The said burden was not discharged and the Will dated 25.10.2009 was not proved according to Section 63 (c) of the Indian Succession Act, 1925 (In short ‘the Act of 1925’). 11. Perusal of the record would show that learned trial Court recorded order-sheet mentioning that defendant’s counsel have made statement of closing their right to lead evidence. According to law and provisions under Section 63 (c) of the Act, 1925, it is for the person who wants benefit of Will to prove its valid execution by examining one of attesting witness in terms of Section 63 (c) of the Act of 1925. As no witness is examined, the finding recorded by learned trial Court as also by Appellate Court that Will dated 25.10.2009 could not be proved, does not call for any interference. 12. Even otherwise, this second appeal is not filed by beneficiary of Will, therefore, also this Court is not dealing with the said issue in detail and only considering the rights as claimed by appellants/defendants No.2 and 3 being legal representative of Swarup Das Saheb. 7 13. Perusal of written statement filed by defendants No.1 to 3 would show that the averments of defendants No.2 and 3 is that the land in dispute was purchased by their father late Swarup Das Saheb in his lifetime vide registered sale deed dated 07.09.2007 from Jagad, Jagdev, Teejram and Baisakhu, S/o. Bhuneshwar Marar and name of purchaser Swarup Das Saheb was recorded as owner and possessor of land. Land in dispute (subject matter of sale deed) is personal property of Swarup Das. Perusal of the written statement would further show that written statement is filed jointly one by beneficiary of Will dated 25.10.2009 and other by legal representative. When once the defendants No.2 and 3 have supported the claim of defendant No.1 that Will dated 25.10.2009 was executed in favour of defendant No.1 of disputed property then based on the said pleading they cannot claim further right over the land. Even if the claim of defendants No.2 and 3 is to be considered, in records, defendants have not brought any evidence (documentary or oral) that they are legal representative of late Swarup Das Saheb. 14. Death certificate (Ex.P-14) of late Swarup Das Saheb mentions the name of Guru in place of father’s name as Sevak Saheb. Perusal of sale deed (Ex.P-1) would also mention that purchaser is Swarup Das Saheb and father’s name though is mentioned as Sevak Das Saheb, but from other documents it appears that it is the name of Guru and not his father. Vide order dated 10.07.2014 (Ex.P-3), Ashram was registered as public trust. The order was of competent authority under the Public Trust Act. Ex.P-6 is the statement of Sarvottam Das Guru Swarup Das Saheb recorded before the Sub-Divisional Officer (R). In 8 his cross-examination, he stated that they mentions name of Guru in place of father. He also mentions that earlier name of Swarup Das Saheb in his childhood was Khamman Das. Statement of T.R. Maheshwari is also placed before the trial Court as Ex.P-8. Perusal of the cause title of the plaint would show that husband name of defendant No.1 is Tekram Maheshwari. In cross-examination he also admitted that fathers name of defendant No.2 was Khamman and not Swarup Das. He also admitted that name of Guru of Swarup Das was Sevak Das Saheb. Property is not purchased in name of Khamman. 15. Plaintiff to prove the pleadings have examined three witnesses. The witness examined on behalf of plaintiff have clearly stated that the land was purchased by the then Sarvarakar Kabir Seva Ashram, Swarup Das, Guru Sevak Das for the benefit of the trust and it was also recorded in the name of President/Sarvarakar Swarup Das, Guru Sevak Das. Sarvottam Das (P.W.-1) in para-7 of his examination-in- chief has stated that defendant No.1 (beneficiary of will) is wife of Tekram Maheshwari, Tahsildar Simga. In cross-examination of this witness, statement made that defendant No.1 is wife of Tahsildar is not controverted. 16. The High Court of Madras in case of Shanmugha Desika Gnanasambanda (supra) has observed thus :- “8. Mayne's Hindu Law, eleventh edition, page 675, paragraph 561, sets out the special rules of succession to the property of an ascetic. It is pointed out therein that according to Yanjnavalkya, the heirs who take the wealth of an ascetic are in their order, the preceptor, the virtuous pupil and one who is a supposed brother and belonging to the same order and that, according to Mitakshara, a spiritual brother belonging to the same 9 hermitage takes the goods of the hermit and a virtuous pupil takes the property of an ascetic and that on the failure of the above, anyone belonging to the same order or hermitage takes the property, even though sons and other natural heirs of the ascetic exist. At page 721, the author has set out the legal effect of one entering into a religious order that: "One who enters into a religious order severs his connection with the members of the natural family. He is accordingly excluded from inheritance. Neither he nor his natural relative can succeed to each other's properties. The persons who are excluded on this ground come under three heads, viz., the Vanaprastha, or hermit; the Sanyasi or Yati or ascetic; and the Brahmachari, or perpetual religious student. In order to bring a person under these heads, it is necessary to show an absolute abandonment by him of all secular property, and a complete and final withdrawal from earthly affairs. The mere fact that a person calls himself a Byragi, or religious mendicant, or indeed that he is such, does not of itself disentitle him to succeed to property. Nor does any Sudra come under this disqualification, unless by usage. This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve not of course upon his natural relations, but according to special rules of inheritance. But it would be otherwise if there is no civil death in the eye of the law, but only the holding by a man of certain religious opinions or professions." 9. In Mulla's Hindu Law, 15the edition, page 183, the position of a person who enters into a religious order with reference to his natural family is set out thus: "Where a person enters into a religious order renouncing all worldly affairs, his action is tantamount to civil death, and it excludes him altogether from inheritance and from a share on partition. All property which belongs to such a person at the time of renunciation passes immediately on his renunciation to his heirs, but property acquired by him subsequent to the renunciation 10 passes to his spiritual heirs. A person does not become a sanyasi by merely declaring himself a sanyasi or by wearing clothes ordinarily worn by a sanyasi. He must perform the ceremonies necessary for entering the class of sanyasis without such ceremonies, he cannot become dead to the world. Sudras: According to the orthodox Smriti writers, a Sudra cannot legitimately enter into a religious order. Although the strict view does not sanction or tolerate ascetic life of the Sudras, it cannot be denied that the existing practice all over India is quite contrary to such orthodox view and any such usage would be give effect to." 10. In Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiram ILR [1887] Mad 375, a Division Bench of this court has referred to the notion of a spiritual family as embodied in the Mitakshara law and to the special rule of succession applicable to the individual property of an ascetic. While tracing the history of the mutts in Tamil Nadu, the learned judges have observed as follows (p. 385): "If an ascetic or a hermit is a Brahmin, he is called a Yati or Sanyasi; if a Sudra, he is called a paradesi, and if the Sudra is attached to an Adhinam, he is called a Tambiran, and if he is at the head of the Adhinam, he is called in Pandara Sannadhi." * * * * 16. It is no doubt true, becoming a sanyasi is renunciation of one's worldly life and possessions, and neither the ancient texts nor the judicial precedents refer to the concept of obligations. However, having regard to the fact that on becoming a sanyasi, the person suffers a civil death, it has to be taken that after attaining sanyasa, he must be taken to have a re-birth and as such all his earlier rights and obligations should be taken to have come to an end. In this view of the matter, we are inclined to agree with the view taken by the Tribunal that the settlement deed was not supported by consideration in money or moneys worth and, therefore, it should be taken as a gift.” 11 17. Learned trial Court upon appreciation of the evidence have recorded a finding that plaintiff proved that the title of the disputed land is of Ashram on preponderance of probability and further that even after making pleadings that plaintiff in possession of the suit land, defendants have not lead any evidence in this regard and found the possession of the plaintiff over the disputed land. Learned First Appellate Court also upon appreciating the documentary and oral evidence on record has upheld the finding recorded learned trial Court and dismissed the appeal. Thus there is concurrent finding of two Courts. 18. Supreme Court in its various decisions has made it clear that a second appeal can be admitted for hearing if it involves substantial question of law. In case of C. Doddanarayana Reddy (Dead) by L.Rs. and Ors. Vs. C. Jayarama Reddy (Dead) by L.Rs. and Ors. (2020) 4 SCC 659, Hon’ble Supreme Court has observed and concluded thus:- “25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan13, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15) “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. Vs. Kanniah Naidu (1996) 3 SCC 392, this Court held : (SCC 393) 12 ‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'. 14. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166, this Court held: (SCC p. 166) ‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.' 15. And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p. 486, para 5) '5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' " 29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once,two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court. 13 30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact.” 19. In case of State of Rajasthan and Ors. Vs. Shiv Dayal and Ors. (2019) 8 SCC 637 Hon’ble Supreme Court has observed and concluded thus:- “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117]. 17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” 20. For the forgoing discussions and in light of the decisions of Hon’ble Supreme Court, I do not find any infirmity or illegality in the judgment passed by the learned trial Court and upheld by learned first appellate Court. Thus, having considered the concurrent finding recorded by both the Courts below, I do not find any substantial question of law to be involved in the instant case to admit it, hence, this appeal is dismissed at the motion stage itself. 14 21. The Decree be drawn accordingly. 22. The parties to bear their own costs. Sd/- (Parth Prateem Sahu) Judge Balram