Madhya Pradesh High Court
Saligram vs Ghanshyam on 26 April, 2023
Author: Vivek Rusia
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S.A. No.1272/2020
IN THE HIGH COURTOF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 26th OF APRIL, 2023
SECOND APPEAL No. 1272 of 2020
BETWEEN:-
SALIGRAM S/O GANPATLAL, AGED ABOUT 60 YEARS, OCCUPATION:
KRISHI VILLAGE SAGWAL, TEHSIL SARDARPUR (MADHYA
PRADESH)
.....APPELLANT
(SHRI LOKESH MEHTA, LEARNED COUNSEL FOR THE APPELLANT.)
AND
GHANSHYAM S/O JAGANNATH, AGED ABOUT 44 YEARS,
1. OCCUPATION: VYAPAR VILLAGE SAGWAL, TEHSIL SARDARPUR
(MADHYA PRADESH)
RAMKUNWAR BAI W/O JAGANNATH, AGED ABOUT 61 YEARS,
2. OCCUPATION: AGRICULTURE GRAM SAGWAL, TEHSIL
SARDARPUR, DIST DHAR (MADHYA PRADESH)
GITA W/O RAMCHANDRA, AGED ABOUT 59 YEARS, OCCUPATION:
3. AGRICULTURE GRAM KHEDA, TEH BADNAWAR DIST DHAR
(MADHYA PRADESH)
BHAGWANTI W/O RADHESHYAM, AGED ABOUT 57 YEARS,
4. OCCUPATION: AGRICULTURE GRAM SHAKARGARH, TEH
BADNAWAR DISTDHAR (MADHYA PRADESH)
DHAPU W/O HARIRAM, AGED ABOUT 54 YEARS, OCCUPATION:
5. AGRICULTURE GRAM SHANKARGARH TEH BADNAWAR
(MADHYA PRADESH)
UMESH S/O GHANSHYAM, AGED ABOUT 20 YEARS, OCCUPATION:
6. STUDENT GRAM SAGWAL, TEHSIL SARDARPUR, DIST DHAR
(MADHYA PRADESH)
7. STATE OF MP THR COLLECTOR DHAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AKASH RATHI, LEARNED COUNSEL FOR THE RESPONDENTS.)
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S.A. No.1272/2020
This appeal coming on for hearing on admission this day, the
court passed the following:
JUDGMENT
1- The appellant/plaintiff has filed this appeal being aggrieved by
judgment and decree dated 12.8.2016 passed by Civil Judge, Class-II,
Sardarpur, District Dhar in Civil Suit No. 17-A/2015 whereby suit as
well as counter claim have been dismissed; and judgment and decree
dated 12.2.2020 passed by First Additional District Judge, Sardarpur,
District Dhar whereby the appeal preferred by the plaintiff has been
dismissed, but the counter appeal filed by defendants No.1 and 6 has
been allowed.
2- The facts of the case, in short, are as under :
2.1- The appellant/plaintiff field the suit for declaration and
permanent injunction in respect of land bearing Survey No. 403/2 area
0.188 Hect. and Survey No. 454/2 area 0.105 Hect. situated at Village
Sagwal, Tehsil Sardarpur (suit land). In order to understand the
relationship between the plaintiff and defendants, the family tree is as
under :
Parthi
|
-------------------------
| |
Ganpat (son) Bodi Bai (daughter)
| |
----------------------------- Jagannath.
| |
Jamna (wife) Hanja Bai (2nd wife)
|
--------------------------
| |
Mohan Saligram
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S.A. No.1272/2020
According to the plaintiff he is owner of the suit land and defendant
No.1 in collusion with the revenue authorities has got mutated the said
land in his name illegally. By way of mutation of name, the
Bhoomiswami rights of the plaintiff will not be extinguished and the
defendant No.1 would not get title. Order dated 30.4.2003 passed by
the Tehsildar is void and not binding on him, therefore, he is entitled
for a decree of declaration of title and permanent injunction.
2.2- Defendants No.1 to 6 appeared and filed the written statement by
submitting that earlier Ganpat was the owner of the suit land and
during his life time the partition took place in the year 1960 and the
suit land came in to the share of Late Jagannath and after his death, the
partition has been recorded vide order dated 304.2003. The plaintiff as
well as his brother Mohan both have signed on the 'Furd Batwara' and
did not object and now the suit is filed after more than 12 years which
is barred by limitation. Defendants No.1 and 6 also filed counter claim
seeking declaration of title of the suit land. On the basis of pleadings,
learned Civil Judge framed 8 issues for adjudication. The plaintiff
examined himself as well as son of Mohan in his support. After
appreciating the evidence came on record, learned Civil Judge
dismissed the suit filed by the plaintiff as well as counter claim filed by
defendant Nos. 1 & 6 vide judgment and decree dated 12.8.2016.
3- Being aggrieved by the aforesaid judgment and decree, the
plaintiff as well as defendant Nos. 1 & 6 preferred appeal and cross
appeal respectively. Vide judgment and decree dated 12.2.2020 learned
first appellate Court dismissed the appeal preferred by the plaintiff but
allowed the cross appeal preferred by defendant Nos. 1 & 6. Hence, the
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S.A. No.1272/2020
present appeal by the plaintiff before this Court.
The substantial questions of law proposed by the appellant are as
under :
"1- D;k izdj.k ds rF;ksa esa okn vof/k esa gS \
2- D;k le;kof/k dh x.kuk [email protected]@2003 dks ikfjr vkns'k ds vk/kkj
ij le; ckf/kr ekuk tk ldrk gS tcfd tkudkjh ds rqjUr ckn okn
[email protected]@2015 dks is'k gS \ tcfd losZ uacj [email protected] ,oe~ [email protected] ckcn~ mDr
vkns'k ugha gS \
3- D;k ek= jktLo vfHkys[kksa esa ukekarj.k ds vk/kkj ij LoRo ekuk tk
ldrk gS \
4- D;k oknh lk{; dk lgh ewY;kadu fd;k x;k gS \
5- D;k izfroknh lk{; dk lgh ewY;kadu fd;k x;k gS \
6- D;k ekuuh; vf/kuLFk U;k;ky;ksa ds fu"d"kZ ijolZ gksdj fof/k xzkg;
ugha gS \
7- D;k ekuuh; nksuksa vf/kuLFk U;k;ky; ds fu.kZ; ,oe~ t;i= fof/k dh
ea'kk ds izfrdwy gksdj fujLr fd;s tkus ;ksX; gS \
8- D;k ekuuh; vf/kuLFk U;k;ky;ksa us vihykaV oknh dk okn fujLr
djus rFkk vihyh; U;k;ky; us izfrnkok Lohdkj djrs U;k;nku djus esa
oS/kkfud =qfV dh gS \"
4- Shri Lokesh Mehta, learned counsel for the appellant submits
that admittedly the suit land was initially owned by Parthi and it was
succeeded by Ganpat. The plaintiff is son of Hanjabai, therefore, he has
acquired the title. In the revenue record prior to 2003 his name was
recorded as owner of the suit land which was illegally changed vide
order dated 30.4.2003. The defendants have also failed to prove their
title, but on the basis of their name in the revenue record, they have
been declared as owner of the suit land, hence this appeal is liable to be
admitted for final hearing.
After having heard the learned counsel for the appellant, I have
gone through the record of both the courts below.
5- Parthi had one son - Ganpat and one daugher - Bodi Bai.
Jagannath is son of Bodi Bai, but according to him, Jagannath was
residing with him. Ganpat was married with Jamna, but she had a son
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S.A. No.1272/2020
but he died. After her death, Ganpat married with Hanja Bai who had
two sons Mohan and Saligram. Plaintiff - Saligram alone filed he suit
without impleading Mohan as plaintiff or defendant while both have
common Vadil, therefore, plaintiff - Saligram cannot seek decree for
the suit land. The suit suffers from non-joinder of necessary parties.
6- The learned Civil Judge as well as first appellate Court both have
found that the suit filed beyond the period of limitation. The plaintiff
has admitted that in the proceedings before the revenue authorities he
was present and admitted his signature, therefore, he had a knowledge
about the order dated 30.4.2003 whereby the 'Furd Batwara' was
recorded. He filed the suit in the year 2015 i.e. beyond 3 years as well
as 12 years. Not only the suit was time barred but the defendants also
acquired the title by way of adverse possession. So far as succession is
concerned, admittedly, Bodi Bai - mother of Jagannath is daughter of
Parthi who also had a share in the suit land and the partition took place
during the life time of Ganpat, which was recorded in the year 2003.
Therefore, in view of the above, I do not find any question of law much
less substantial question of law is involved in this appeal.
7- Even otherwise, the Apex Court in the case of Kondiba Dagadu
Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as
under:
5. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of
fact, being the first appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses accepted by the trial court
in respect of credibility but even where it has rejected the witnesses
accepted by the trial court, the same is no ground for interference in
second appeal when it is found that the appellate court has given
satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences are possible, one drawn by the lower
appellate court is binding on the High Court in second appeal.
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S.A. No.1272/2020
Adopting any other approach is not permissible. The High Court
cannot substitute its opinion for the opinion of the first appellate court
unless it is found that the conclusions drawn by the lower appellate
court were erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of pronouncements
made by the Apex Court, or was based upon inadmissible evidence or
arrived at without evidence.
6. If the question of law termed as a substantial ques-tion stands
already decided by a larger Bench of the High Court concerned or by
the Privy Council or by the Federal Court or by the Supreme Court, its
merely wrong application on the facts of the case would not be termed
to be a substantial question of law. Where a point of law has not been
pleaded or is found to be arising between the parties in the absence of
any factual format, a litigant should not be allowed to raise that
question as a substantial question of law in second appeal. The mere
appreciation of the facts, the documentary evidence or the meaning of
entries and the contents of the document cannot be held to be raising a
substantial question of law. But where it is found that the first
appellate court has assumed jurisdiction which did not vest in it, the
same can be adjudicated in the second appeal, treating it as a
substantial question of law. Where the first appellate court is shown to
have exercised its discretion in a judicial manner, it cannot be termed
to be an error either of law or of procedure requiring interference in
second appeal. This Court in Reserve Bank of India v. Ramkrishna
Govind Morey [AIR 1976 SC 830]held that whether the trial court
should not have exercised its jurisdiction differently is not a question
of law justifying interference.
8- In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264,
again the apex court has held as under:
16. Based on oral and documentary evidence, both the courts below
have recorded concurrent findings of fact that the plain-tiffs have
established their right in A schedule property. In the light of the
concurrent findings of fact, no substantial questions of law arose in the
High Court and there was no substantial ground for reappreciation of
evidence. While so, the High Court proceeded to observe that the first
plaintiff has earmarked the A schedule property for road and that she
could not have full-fledged right and on that premise proceeded to
hold that declaration to the plaintiffs' right cannot be granted. In
exercise of jurisdiction under Section 100 CPC, concurrent findings of
fact cannot be upset by the High Court unless the findings so recorded
are shown to be perverse. In our considered view, the High Court did
not keep in view that the concurrent findings recorded by the courts
below, are based on oral and documentary evidence and the judgment
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S.A. No.1272/2020
of the High Court cannot be sustained.
9- Recently, the Apex Court in case of Adiveppa & Others Vs.
Bhimappa & Others : (2017) 9 SCC 586 has held as under:
"17. Here is a case where two Courts below, on appreciating
the entire evidence, have come to a conclusion that the Plaintiffs failed
to prove their case in relation to both the suit properties. The
concurrent findings of facts recorded by the two Courts, which do not
involve any question of law much less substantial question of law, are
binding on this Court.
18. It is more so when these findings are neither against the
pleadings nor against the evidence and nor contrary to any provision of
law. They are also not perverse to the extent that no such findings
could ever be recorded by any judicial person. In other words, unless
the findings of facts, though concurrent, are found to be extremely
perverse so as to affect the judicial conscious of a judge, they would be
binding on the Appellate Court."
10- In view of the foregoing discussion, this appeal deserves to be
and is hereby dismissed.
( VIVEK RUSIA )
JUDGE
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.05.02 11:56:27 +05'30'
