Madhya Pradesh High Court
Pushpa vs Kamal on 1 December, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 1 st OF DECEMBER, 2023
SECOND APPEAL No. 852 of 2022
BETWEEN:-
1. PUSHPA S/O KAMAL PATIDAR, AGED ABOUT 36
Y E A R S , OCCUPATION: NOTHING R/O
NAVALPURA, DISTRICT BARWANI (MADHYA
PRADESH)
2. KU. SHARDHA D/O KAMAL PATIDAR MINOR THR.
NATURAL GUARDIAN PUSHPA W/O KAMAL
PATIDAR, AGED ABOUT 36 YEARS, OCCUPATION:
NOTHING R/O NAWALPURA, DISTRICT BARWANI
(MADHYA PRADESH)
.....APPELLANTS
(SHRI KAILASH CHANDRA YADAV, LEARNED COUNSEL FOR THE
APPELLANTS)
AND
1. KAMAL S/O NABYA PATIDAR MUKATI, AGED
ABOUT 46 YEARS, OCCUPATION: AGRICULTURE
GRAM NAGUR, TEHSIL MANAWAR DISTRICT
DHAR (MADHYA PRADESH)
2. STATE OF THR. COLLECTOR DHAR (MADHYA
PRADESH)
3. GHISYA S/O DHANJI PATIDAR, AGED ABOUT 68
Y E A R S , GRAM LANGUR TEH. MANAWAR
DISTRICT DHAR (MADHYA PRADESH)
4. RADHABAI D/O NABIYA W/O SOHAN PATIDAR,
AGED ABOUT 30 YEARS, GRAM LOHARI LANGUR
TEH. KUKSHI DISTRICT DHAR(MADHYA
PRADESH)
5. RUKHMANIBAI D/O NABIYA W/O PURSHOTTAM
PATIDAR, AGED ABOUT 32 YEARS, OCCUPATION:
AGRICULTURE GRAM MIRZAPUR TEH.
MANAWAR DISTRICT DHAR (MADHYA PRADESH)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 02-12-2023
14:50:35
2
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
T h is second appeal is filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 17.01.2022 passed by
II District Judge, Manawar, district Dhar in RCA No.24/2021 arising out of the
judgment and decree dated 21.07.2016 passed by Civil Judge, Class-I,
Manawar, district Dhar in R.C.S.No.26-A/2012.
(2) The brief facts of the case are that appellants/plaintiffs filed a suit for
declaration, partition and permanent injunction on the ground that plaintiff no.1
is wife of defendant no.1 and plaintiff no.2 is daughter thereof. It is clear from
the plaint that suit properties are ancestral property/parental property. Hence,
appellant/plaintiff no.2 has share therein from birth.
(3) Learned counsel for the appellants/plaintiffs has submitted that
appellant/plaintiff no.2 being daughter of defendant no.1 has right from birth in
the suit property as the suit property is ancestral property/parental property of
appellant/plaintiff no.1 and defendant no.1. The Courts below have dismissed
the plaintiff's suit on the ground that plaintiff being minor cannot claim partition
during life time of her father. It is also urged that even in that case declaration to
the effect that plaintiff has right in the suit property by birth should have been
granted. It is also urged that defendant intend to alienate the suit property.
Hence, appropriate injunction should have been issued in plaintiffs' favour.
Therefore, on above grounds it is submitted that substantial question of law
arises for determination. Hence, the appeal be admitted for final hearing.
(4) I have heard the learned counsel for the appellants/plaintiffs and
perused the record of the Courts below.
(5) It is apparent from the record of the Courts below that the learned
trial Court dismissed the plaintiffs' suit and first appellate Court has dismissed
the appellants/plaintiffs' appeal.
(6) Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the Courts below. In this connection, I would like to
refer to the law laid down by the Hon'ble Apex Court in the case of Chandrabhan
(Deceased) through Lrs. And Others vs. Saraswati and Others reported in AIR
2022 SC 4601, wherein Hon'ble Apex Court in para 33(iii) has held as under:-
"33 (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 - recognized 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".
(7) Similarly in the case of Gurnam Singh (Dead) by legal representatives
and Others vs. Lehna Singh (Dead) by legal representatives, Hon'ble Apex
Court has held as under:-
"13.1.......However, in Second Appeal under Section 100 of the
CPC, the High Court, by impugned judgment and order has
interfered with the Judgment and Decree passed by the First
Appellate Court. While interfering with the judgment and order
passed by the first Appellate Court, it appears that while
upsetting the judgment and decree passed by the First Appellate
Court, the High Court has again appreciated the entire evidence
on record, which in exercise of powers under Section 100 CPC
is not permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated the
fact that the High Court was deciding the Second Appeal under
Section 100 of the CPC and not first appeal under Section 96 of
the CPC. As per the law laid down by this Court in a catena of
decisions, the jurisdiction of High Court to entertain second
appeal under Section 100 CPC after the 1976 Amendment, is
confined only when the second appeal involves a substantial
question of law. The existence of 'a substantial question of law'
is a sine qua non for the exercise of the jurisdiction under
Section 100 of the CPC. As observed and held by this Court in
the case of Kondiba Dagadu Kadam (Supra), in a second appeal
under Section 100 of the CPC, the High Court cannot substitute
its own opinion for that of the First Appellate Court, unless it
finds that the conclusions drawn by the lower Court were
erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court; OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if
First Appellate Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an error
either of law or of procedure requiring interference in second
appeal. It is further observed that the Trial Court could have
decided differently is not a question of law justifying interference
in second appeal".
(8) In this connection, Ishwar Dass Jain (Dead) through LRs vs. Sohan
Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434 may also be
referred to. Paras 11 and 12 of the said judgment is relevant and is under:-
"11. There are two situations in which interference with findings of
fact is permissible. The first one is when material or relevant
evidence is not considered which, if considered would have led to
an opposite conclusion. This principle has been laid down in a
series of judgments of this Court in relation to section 100 CPC
after the 1976 amendment. In Dilbagrai Punjabi vs. Sharad Chandra
[1988 Supple. SCC 710], while dealing with a Second Appeal of
1978 decided by the Madhya Pradesh High Court on 20.8.81,
L.M.Sharma, J.(as he then was) observed that "The Court (the first
appellate Court) is under a duty to examine the entire relevant
evidence on record and if it refuses to consider important evidence
having direct bearing on the disputed issue and the error which
arises as of a magnitude that it gives birth to a substantial question
of law, the High Court is fully authorised to set aside the finding.
This is the situation in the present case."
In that case, an admission by the defendant-tenant in the reply
notice in regard to the plaintiff's title and the description of the
plaintiff as `owner' of the property signed by the defendant were not
considered by the first appellate Court while holding that the
plaintiff had not proved his title. The High Court interfered with the
finding on the ground of non-consideration of vital evidence and
this Court affirmed the said decision. That was upheld. In Jagdish
Singh vs. Nathu Singh [1992 (1) SCC 647], with reference to a
Second Appeal of 1978 disposed of on 5.4.1991. Venkatachaliah, J.
(as he then was) held:
"where the findings by the Court of facts is vitiated by non-
consideration of relevant evidence or by an essentially erroneous
approach to the matter, the High Court is not precluded from
recording proper findings."
Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar [1995 Suppl.
(4) SCC 534], it was held that where certain vital documents for
deciding the question of possession were ignored - such as a
compromise, an order of the revenue Court - reliance on oral
evidence was unjustified. In yet another case in Mehrunissa vs.
Visham Kumari [1998 (2) SCC 295] arising out of Second appeal
of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that
a finding arrived at by ignoring the second notice issued by the
landlady and without noticing that the suit was not based on earlier
notices, was vitiated and the High Court could interfere with such a
finding. This was in Second Appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference with findings of fact
is permissible is where a finding has been arrived at by the appellate
Court by placing reliance on inadmissible evidence which if it was
omitted, an opposite conclusion was possible. In Sri Chand Gupta
vs. Gulzar Singh [1992 (1) SCC 143], it was held that the High
Court was right in interfering in Second Appeal where the lower
appellate Court relied upon an admission of a third party treating it
as binding on the defendant. The admission was inadmissible as
against the defendant. This was also a Second Appeal of 1981
disposed of on 24.9.1985".
(9) Perusal of judgment passed by the learned Courts below reveals that
there is categorical finding to the effect that it is not proved that defendant no.1,
father of appellant no.2, exclusively received the suit property. Above findings
have been affirmed by the first appellate Court. Hence, if pleadings of the parties
and evidence adduced by the parties and the impugned judgments passed by the
Courts below are considered in light of the above legal principles/legal provisions
reiterated in aforesaid judgments, then, in this Court's considered opinion, the
findings of facts concurrently recorded by the Courts below are not liable to be
interfered with in the instant case and it cannot be said that Courts below have
ignored any material evidence or has acted on no evidence or Courts have drawn
wrong inferences from the proved facts etc. Further, it cannot be said that
evidence taken as a whole, is not reasonably capable of supporting the findings. It
can also be not said that the findings of Courts below are based on inadmissible
evidence.
(10) A perusal of the impugned judgments and decree passed by the
Courts below reveal that they are well reasoned and have been passed after due
consideration of oral as well as documentary evidence on record. Learned counsel
for the appellant/plaintiff has failed to show that how the findings of facts recorded
by the Courts below are illegal, perverse and based on no evidence etc. The
learned Courts below have legally and rightly dealt with the issues involved in the
matter and have recorded correct findings of facts.
( 11 ) For the reasons aforesaid, I find no merit in the instant second
appeal. Concurrent findings recorded by the Courts below in favour of defendant
are fully justified by the evidence on record. Concurrent findings recorded by the
Courts below are not based on misreading or mis-appreciation of evidence nor it is
shown to be illegal or perverse in any manner so as to call for interference in
second appeal. No question of law, much less substantial question of law, arises
for adjudication in the instant second appeal. Accordingly, the appeal is dismissed
in limine.
(12) A copy of this order along with record be sent back to the courts
below for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
RJ
