JUDGMENT : Narendra Kumar Vyas, J. 1. This is defendant No.1 Second Appeal preferred under Section 100 of CPC against the judgment and decree dated 14.10.2014 passed by 1 st Additional District Judge Janjgir in Civil Appeal No. 86-A/2010 arising out of judgment and decree dated 28.10.2010 passed by Civil Judge, Class-II, Pamgarh, District janjgir Champa in Civil Suit No. 166-A/2007 by which learned District Judge has reversed the judgment and decree of the trial Court by partly allowing the appeal declaring the title of the plaintiff Narmada Bai to the extent of ½ of the share in the suit land. 2. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 166-A/2007 before the trial Court. 3. The appeal was admitted on 05.10.2015 on the following substantial questions of law:- (i) Whether the finding of the First Appellate court is perverse regarding declaration of ½ of the share of the suit land to the plaintiff. 4. Brief facts of the case reflected from the record are that the plaintiff has filed a suit for declaration of title, partition to the extent of ½ share of the suit land bearing khasra Nos. 722,833/1,1160,1451/1,451/2, 1451/2 and 1494 total area admeasuring 5.73 acre situated at Gram Bhaiso, Patwari Halka No. 4, Revenue Circule and Tahsil Pamgarh, District Janjgir Champa (hereinafter referred to suit land) mainly contending that ;- (a) The suit land was recorded in the name of grandfather of plaintiff Sadhuram in the year 1954-55 and he was cultivating the suit land, after death of Sadhuram the suit land was recorded in the name of his legal heirs. The genealogy of the family is mentioned in plaint according to which late Sadhuram had two sons namely Rama and Bhulau. Out of them Rama wife was Phoolkunwar, and his daughter is Narmadabai plaintiff before the trial Court. It is also case of the plaintiff that Hariram died issueless and Bhulau has only one son namely Bhagwat/defendant No.1. It is also case of the plaintiff that the defendant No.1 was 18 years old, then her mother Phoolkunwar married with her brother-in-law Bhulau and started living with him, as such plaintiff became the sole owner of the property of Rama. It is also case of the plaintiff that the defendant No.1 was 18 years old, then her mother Phoolkunwar married with her brother-in-law Bhulau and started living with him, as such plaintiff became the sole owner of the property of Rama. (b) It is contended that the suit land was recorded in the joint name of Rama and Bhulau and after death of Bhulau, defendant No.1 fraudulently did not enter the name of the plaintiff in the joint account of the plaintiff instead he has recorded the name of her mother in the record of rights. It is also contended that after marriage of the plaintiff she started residing at her matrimonial house in Village Ranigaon and during this time the plaintiff demanded her share in the suit land from defendant No.1. But the defendant No.1 only gave assurance and in February 2004, he refused to give her share in the suit land by stating that she can claim partition through Court proceedings. Consequently, the plaintiff filed an application before the Court of Tahsildar, Pamgarh for recording her name in the suit land in Revenue Case No. A-6/47/2003-04 by which the Tahsildar has rejected the plaintiff’s application for recording her name. (c) It is further contended that the suit land was originally recorded in the year 1954-55 as 7.25 acres out of which 1.52 acres of land has already been sold by the defendant No.1 and presently only. 5.73 acres of land remained there and on this factual foundation, the plaintiff filed a suit for declaration of title, permanent injunction and possession. 5. The defendants have filed the written statement denying the allegations made in the plaint mainly contending that:- (a) It is contended that the plaintiff has mentioned her father's name as Bhulau, whereas in the statements made in the family tree where the plaintiff has described herself as the sole heir of Rama. It is also stated that Tehsildar Pamgarh by following due process of law has passed the order on the plaintiff's application and has rejected the application of the plaintiff. It is also stated that the plaintiff has not mentioned the date of death of Rama and Bhulau in her plaint, as such the plaintiff has filed a baseless claim without disclosing the actual facts, due to which she is not entitled to get any relief. It is also stated that the plaintiff has not mentioned the date of death of Rama and Bhulau in her plaint, as such the plaintiff has filed a baseless claim without disclosing the actual facts, due to which she is not entitled to get any relief. It is also contended that the plaintiff has filed the suit just to harass defendant No.1 in fact the plaintiff never remained in possession of the suit property, therefore, cost of Rs. 5,000/- may be imposed under Section 35(a) of CrPC for harassing the defendant No.1. It has also been contended that no cause of action has been arisen on 31.03.2004 and if the date of death of Rama and Bhulau are to be taken into consideration then also the suit has not been filed within three years from the date of death, as such the suit is barred by limitation and would pray for dismissal of the suit. 6. On the pleading of the parties, learned trial Court has framed as many as five issues. Issue no 1 and 3 are relevant therefore, they are extracted below:- 7. The plaintiff to substantiate her claim has examined herself as (PW-1), Daduram (PW-2), Batiyabai @ Dukhinbai (PW-3), Kanti Bai (PW-4), Narayan Singh (PW-5) and exhibited documents right of record (Ex.P-1), amended register (Ex.P-2), amended register (Ex.P-3), mutation register (Ex.P-4), sale deed (Ex.P-5), Order dated 31.03.2004 (Ex.P-6), School transfer certificate (Ex.P-7), Kistbandi Khatuni (Ex.P-8) and Khasra (Ex.P- 9). The defendant No.1 to substantiate his claim has examined himself as (DW-1), Ram lal and Bhupat and has not exhibited any documents. 8. Learned trial Court vide its judgment and decree dated 28.10.2010 has dismissed the suit filed by the plaintiff by recording its finding with regard to issue no.1 that the plaintiff is unable to establish that she is the daughter of Rama and is also unable to establish his successor of Rama and accordingly answered issue No.1. So far as issue No.2 is concerned it has recorded that the plaintiff has submitted the sale deed which is pertaining to .50 acres, as such it cannot be held that the defendant No.1 has sold the property to the extent of 1.52 acres and also answered the issue No.2 against the plaintiff. So far as issue No.2 is concerned it has recorded that the plaintiff has submitted the sale deed which is pertaining to .50 acres, as such it cannot be held that the defendant No.1 has sold the property to the extent of 1.52 acres and also answered the issue No.2 against the plaintiff. The learned trial Court while deciding issue No.3 has recorded its finding that the suit is within limitation and so far as issue No. 4 is concerned it has recorded that suit has been properly valued. Since the issue No.1 and 2 have been answered against the plaintiff, it has dismissed the suit. 9. Being aggrieved with judgment and decree, the plaintiff has preferred first appeal under Section 96 CPC before learned District Judge, Janjgir Champa who vide its judgment and decree dated 14.10.2014 has partly allowed the appeal and recorded its finding that the defendant No.1 has not rebutted the evidence adduced by the plaintiff that the plaintiff is daughter of Rama by recording its finding that the plaintiff through credible evidence has established that the plaintiff was born from Phoolkunwar and Phoolkunwar was earlier Rama’s wife and subsequently she became wife of Bhulau. The defendant No.1 has not adduced any evidence that Phoolkunwar has physical relationship with other person, except these two persons therefore, it is presumed that the plaintiff is daughter of either Rama or Bhulau, as such she is entitled to get ½ of the share in the suit property. 10. Being aggrieved with the judgment and decree passed by the First Appellate Court, the defendant No.1 has preferred the Second appeal under Section 100 CPC which has been admitted by this Court on 05.10.2015. 11. Learned Counsel for the appellant/defendant No.1 would submit that there is inconsistency with the evidence and the plaint averments and the plaintiff has not produced evidence to establish that she is the successor of Rama being his daughter. He would further submit that for claiming succession the date would be relevant when the succession is opened, as such it is incumbent upon the plaintiff to establish when plaintiff’s father expired. There is no such pleading or evidence when plaintiff’s father expired as before 1956 the provisions of Hindu Succession Act is not applicable, as such even after amendment of 2005 the plaintiff is not entitled to get share in the suit property. There is no such pleading or evidence when plaintiff’s father expired as before 1956 the provisions of Hindu Succession Act is not applicable, as such even after amendment of 2005 the plaintiff is not entitled to get share in the suit property. Thus, the learned Appellate Court has committed illegality in allowing the appeal filed by the plaintiff and would pray for answering the substantial question of law in favour of the defendant No.1. To substantiate his submission, he would refer to the judgment of Madras High Court in the case of Malliga (died) vs. S. Shanmugam and others reported in A.S. No. 6969 of 2017 decided on 13.11.2024, Balak Ram (died) through vs. Raukhi and Ors in SA No. 496 of 1997 decided on 15.01.2016 and he would pray for that appeal may be allowed by setting aside the judgment & decree passed by the first Appellate Court. 12. On the other hand, learned counsel for respondent/plaintiff would submit that the learned first appellate Court upon appreciation of evidence has held that the plaintiff is the daughter of Phoolkunwar and it is undisputed fact that Phoolkunwar was first married to Rama and after death Rama with Bhulau who was brother of Rama and also recorded its finding that even if the plaintiff is daughter of Rama or Bhulau, she is entitled to get ½ of the share in the suit property. This finding is on appreciation of evidence and no further evidence was adduced by the defendant to dislodge this fact, thus the finding is legal, justified and not liable to be interfered by this Court. He would further submit that after the amendment in the Hindu Secession Act, 2005 the daughter became coparcener in her own right in the same manner as son with equal rights and liability in the coparcenary property. This issue is no more res-integra and the Hon’ble Supreme court in the case of Vineeta Sharma vs. Rakesh Sharma 2020 (9) SCC 1 has considered the effect of amendment in the Hindu Succession Act and has held that the daughter is entitled to get share in the coparcenary property like a son and thus he would pray for dismissing the appeal by answering the substential question of law against the defendant No1. 13. I have heard learned counsel for the parties and perused record of the Courts below with utmost satisfaction. 13. I have heard learned counsel for the parties and perused record of the Courts below with utmost satisfaction. Finding and discussion of question of law:- 14. To appreciate the substantial question of law and submission made by learned counsel for the appellant that since the plaintiff has not established when the succession is opened to succeed in coparcener property as the old Hindu Law does not provide daughter to inherent the coparcenary property. It is expedient for this Court to go through the written statement which this Court has already extracted above and from perusal of that pleading it is nowhere reflected that the defendant No.1 has taken this plea before the trial Court or in the first Appellate by filing cross examination. The defendant No.1 in his written statement has taken his defense that the plaintiff father’s name is not clear and in the evidence also no such evidence was brought on record that when Rama or Bhulau expired. The appellant intended to take plea which is neither pleaded before the trial Court or before the first appellate Court through cross objection which is not permissible in view of well settled legal position of law that unless and until the plea is taken before the trial court or the First Appellate Court, no new plea can be taken by the appellant in the second appeal. It is well settled legal position of law that even if the plea has not been taken before the trial Court or the First appellate Court then if it is legal issue the same can be very well agitated before before this Court in the second appeal. These submissions deserve to be rejected as the legal plea without any foundational pleading with regard no legal plea can be sustainable and substantial question of law is framed as per Section 100(5) CPC, as such the submission that since the plaintiff is unable to establish that when succession is opened for applicability of succession law is misconceived and deserves to be rejected. Accordingly, it is rejected. 15. The Hon’ble Supreme Court in the case of Kshitish Chandra Purkait vs Santosh Kumar Purkait & Ors reported in 1997 (5) SCC 438 has examined when the new plea can be raised in the second appeal and has held as under:- 10. Accordingly, it is rejected. 15. The Hon’ble Supreme Court in the case of Kshitish Chandra Purkait vs Santosh Kumar Purkait & Ors reported in 1997 (5) SCC 438 has examined when the new plea can be raised in the second appeal and has held as under:- 10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercised its jurisdiction under the proviso to sub- section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation of abdication of the duty cast on Court and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has exercise its jurisdiction under Section 100 C.P.C should always be borne in mind. We are sorry to state that the above aspect are seldom borne in mind in may case and second appeals are entertained and/or disposed of without conforming to the above discipline. 11. The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 C.P.C., have been laid down by this Court in a Constitution Bench decision in Sir Chunilal V. Mehta and sons Ltd. vs. Century Spinning and ManufacturingCo. Ltd., [ AIR 1962 SC 1314 = (1962) Supp. (3) SCR 549]. There is also a later decision of this Court in Mahindra and Mahindra Ltd. Vs. The Union of India and another (( AIR 1979 SC 798 ). It is unnecessary to deal at length with that aspect any further. 12. In the light of the legal position stated above we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it did, and consequently in allowing the Second Appeal. It is unnecessary to deal at length with that aspect any further. 12. In the light of the legal position stated above we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it did, and consequently in allowing the Second Appeal. Even according to the High Court the point urged on behalf of the appellant was only a "legal plea" thought no specific plea was taken or no precise issue were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised are specifically stated in sub-section (5) of Section 100 C.P.C Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not mere "question of law". The reason for permitted the substantial question of law to be raised, should be "recorded" by the Court. It is implicit therefrom, that on compliance of the above, the opposite party should be afforded a fair or properly opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Thereafter, the opposite party should be given a fair or proper opportunity to meet the same. In the present case, as the extracts from the judgment quoted hereinabove would show, the High Court has totally ignored the mandatory provisions of Section 100 C.P.C. The High Court proceeded to entertain the new plea and rendered it decision without following the mandatory provision of Section 100 C.P.C. On this short ground we are of the view that judgment and decree of the High Court dated 30th November, 1982 are illegal and in excess of jurisdiction and so unsustainable and deserve to be set aside. 16. 16. The further submission of the learned counsel for the appellant that the pleadings made by the plaintiff are inconsistent to the evidence, this submission also deserves to be rejected as the defendant No.1 has not been able to lead evidence that the plaintiff’s father either Rama or Bhulau expired prior 1956, as such succession Act is not applicable as it is well settled legal position of law that who asserts the facts has to prove as burden lies upon him only which he miserably failed to prove. The Hon’ble Supreme Court in the case of Chowdamma (Dead) By L.R vs Venkatappa (Dead) By Lrs reported in 2025 INSC 1038 wherein the Hon’ble Supreme Court has held as under:- 41. It is a well-settled principle that the burden of proof lies upon the party who asserts a fact. In the present case, the plaintiffs have positively asserted that the deceased Dasabovi had a valid marital relationship with their mother. This assertion is supported by the oral testimony of P.W.2 (Hanumanthappa), the consistent conduct of the deceased Dasabovi in regularly visiting the plaintiffs’ residence, and the absence of any contrary material from defendant No.1. 42. In view of the above, this Court is of the opinion that the plaintiffs have discharged the burden of proof placed upon them. They have sufficiently established that the deceased Dasabovi lived with their mother, Bheemakka @ Sathyakka, as husband and wife. Burden of proof and onus of proof. 43. This Court in Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 observed thus: “19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.” 44. Also, in Addagada Raghavamma and Anr. Addagada Chenchamma and Anr. 1963 SCC OnLine SC 37, this Court observed as follows: “12. … There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. …Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. …” 7 (2006) 5 SCC 558 8 1963 SCC OnLine SC 37. 45. As it is seen that the plaintiffs have successfully discharged their burden of proof regarding the factum of marriage, the onus now shifts to the defendants to rebut the same. 46. The defendants, except for denying the marriage between the deceased Dasabovi and the plaintiffs’ mother, have not produced any oral or documentary evidence to challenge the legal sanctity of the said marriage. The contention that the plaintiffs’ mother did not belong to the same caste as the deceased Dasabovi, is wholly bereft of any proof or material. In the absence of the same, the said assertion collapses merely into speculation. 17. Learned First Appellate Court after appreciating the evidence has recorded its finding that the plaintiff either being daughter of Rama or Bhulau as per genealogy which is not rebutted by the defendant No.1 has recorded its finding that the plaintiff being daughter is entitled to get ½ of share in the suit property and the learned trial Court has committed illegality in not giving the finding with regard to issue No.1 against the plaintiff is perverse and contrary to the evidence, as such it has set aside the judgment and decree passed by the trial Court. It is well settled legal position of law that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. It is well settled legal position of law that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. The Hon’ble Supreme Court in the cases of Damodar Lal v. Sohan Devi , reported in (2016) 3 SCC 78 , Pakeerappa Rai v. Seethamma Hengsu , reported in (2001) 9 SCC 521 , Randhir Kaur v. Prithvi Pal Singh , reported in (2019) 17 SCC 71 , Gurdev Kaur v. Kaki , reported in (2007) 1 SCC 546 78 have examined this scope of interference by the High Court in the Second Appeal. In view of the above preposition of law it is quite vivid that this Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the this Court thought that another view would be a better view. Accordingly, the Second appeal filed by the appellant/ Defendant No.1 deserves to be dismissed and it is dismissed. The substantial question of law framed by this Court is answered against the defendant No.1/appellant and in favour of the plaintiff. No order as to costs. 18. The interim order passed by this Court on 30.11.2015 is vacated. 19. A decree be drawn up accordingly.