Abdul Latif vs Jabunnisha
2023 Latest Caselaw 20166 MP

Madhya Pradesh High Court

Abdul Latif vs Jabunnisha on 1 December, 2023

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                          1

IN THE HIGH COURT OF MADHYA PRADESH
                  AT I N D O R E
                      BEFORE
  HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

           ON THE 1st OF DECEMBER, 2023

           SECOND APPEAL No. 1004 of 2022

BETWEEN:-
   ABDUL LATIF S/O ABDUL RAHMAN, AGED ABOUT 61 YEARS,
1. OCCUPATION: LABORER VILLAGE PATHANWADI, DISTRICT
   KHARGONE (MADHYA PRADESH)
   MEHRUN S/O ABDUL RAHMAN W/O ABDUL RASHID, AGED
2. ABOUT 74 YEARS, OCCUPATION: HOUSEWIFE HARSUD
   (MADHYA PRADESH)
   KAMRUN S/O ABDUL RAHMAN, AGED ABOUT 65 YEARS,
3.
   OCCUPATION: HOUSEWIFE KHANDWA (MADHYA PRADESH)
   NAZMA D/O ABDUL RAHMAN W/O MOHD. YUNUS, AGED
4. ABOUT 59 YEARS, OCCUPATION: HOUSEWIFE INDORE
   (MADHYA PRADESH)
                          .....APPELLANTS/PLAINTIFFS
(SHRI VISHAL SHARMA, ADVOCATE FOR APPELLANTS)

AND
   JABUNNISHA W/O ABDUL SATTAR, AGED ABOUT 79 YEARS,
1. OCCUPATION:   HOUSEWIFE     VILLAGE   PATHANWADI,
   DISTRICT KHARGONE (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS NASIM BEE W/O ABDUL RAJAK, AGED ABOUT
2.
   55   YEARS,   OCCUPATION:    HOUSEWIFE    VILLAGE
   PATHANWADI (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS RAMJAN S/O ABDUL RAJAK, AGED ABOUT 38
3.
   YEARS, OCCUPATION: LABORAR VILLAGE PATHANWADI
   (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS IRFAN S/O ABDUL RAJAK, AGED ABOUT 28
4.
   YEARS, OCCUPATION: LABORAR VILLAGE PATHANWADI
   (MADHYA PRADESH)
                          2

   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS IMRAN S/O ABDUL RAJAK, AGED ABOUT 27
5.
   YEARS, OCCUPATION: LABORAR VILLAGE PATHANWADI
   (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS SONU D/O ABDUL RAJAK W/O FIROJ, AGED
6.
   ABOUT 25 YEARS, OCCUPATION: HOUSEWIFE VILLAGE
   PATHANWADI (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS FARJANA D/O ABDUL RAJAK W/O JARDAR,
7.
   AGED ABOUT 24 YEARS, OCCUPATION: HOUSEWIFE
   VILLAGE PATHANWADI (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS RUKHSAR D/O ABDUL RAJAK W/O TANTU,
8.
   AGED ABOUT 23 YEARS, OCCUPATION: HOUSEWIFE
   VILLAGE PATHANWADI (MADHYA PRADESH)
   ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
   LEGAL HAIRS RANU D/O ABDUL RAJAK, AGED ABOUT 22
9.
   YEARS, OCCUPATION: HOUSEWIFE VILLAGE PATHANWADI
   (MADHYA PRADESH)
    ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
    LEGAL HAIRS GULNAR D/O ABDUL RAJAK, AGED ABOUT 21
10.
    YEARS, OCCUPATION: HOUSEWIFE VILLAGE PATHANWADI
    (MADHYA PRADESH)
    ABDUL RAJAK S/O ABDUL SATTAR (DECEASED) THROUGH
    LEGAL HAIRS AFRIN D/O ABDUL RAJAK, AGED ABOUT 19
11.
    YEARS, OCCUPATION: HOUSEWIFE VILLAGE PATHANWADI
    (MADHYA PRADESH)
    ABDUL GAFFAR S/O ABDUL SATTAR, AGED ABOUT 54
12. YEARS, OCCUPATION: LABORAR VILLAGE PATHANWADI
    (MADHYA PRADESH)
    RAFIK S/O ABDUL SATTAR, AGED ABOUT 52 YEARS,
13. OCCUPATION: LABORAR VILLAGE PATHANWADI (MADHYA
    PRADESH)
    HAFIZ S/O ABDUL SATTAR, AGED ABOUT 49 YEARS,
14. OCCUPATION: LABORAR VILLAGE PATHANWADI (MADHYA
    PRADESH)
    BADRUNISHA D/O ABDUL SATTAR W/O ABDUL RAHIM,
15. AGED ABOUT 64 YEARS, OCCUPATION: HOUSEWIFE
    VILLAGE PATHANWADI (MADHYA PRADESH)
    SADRUNISHA S/O ABDUL SATTAR W/O ABDUL HAMID, AGED
16. ABOUT 59 YEARS, OCCUPATION: HOUSEWIFE VILLAGE
    PATHANWADI (MADHYA PRADESH)
17. SHAKILA D/O ABDUL SATTAR W/O RAFIQ, AGED ABOUT 56
                                   3

    YEARS, OCCUPATION: HOUSEWIFE MOHALLA MANDI
    (MADHYA PRADESH)
    SHAIKH NAJU S/O SHAIKH YASIN, AGED ABOUT 49 YEARS,
18. OCCUPATION: LABORAR GULAB NAGAR, BEHIND B.T.I.
    (MADHYA PRADESH)
    SHAIKH SAID S/O SHAIKH YASIN, AGED ABOUT 44 YEARS,
19. OCCUPATION:    LABORAR     PATHANWADI    (MADHYA
    PRADESH)
    HAMID S/O SAMAD, AGED ABOUT 54 YEARS, OCCUPATION:
20.
    LABORAR PATHANWADI (MADHYA PRADESH)
    HANIF S/O SAMAD, AGED ABOUT 44 YEARS, OCCUPATION:
21. LABORAR BEHIND GOVERNMENT HOSPITAL, DHAR
    (MADHYA PRADESH)
    ABDUL RAHIM S/O ABDUL RAHMAN, AGED ABOUT 69
22. YEARS, OCCUPATION: LABORAR PATHANWADI (MADHYA
    PRADESH)
     STATE OF M.P. THROUGH COLLECTOR KHARGONE
23.
     (MADHYA PRADESH)
                              .....RESPONDENTS/DEFENDANTS
(NONE FOR THE RESPONDENTS)
      This appeal coming on for admission this day, the court
passed the following:

                            ORDER

This second appeal has been filed by the appellants/plaintiffs under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 15.02.2022 passed by learned First District Judge, Khargone (West Nimar) in Regular Civil Appeal No.44/2019, whereby dismissing the appeal preferred by the appellants/plaintiffs, the learned lower appellate Court has confirmed the judgment and decree dated 18.09.2019 passed by the Third Civil Judge, Class-1, Khargone in Regular Civil Suit No.02-A/2017 dismissing the appellants/plaintiffs suit title declaration, permanent injunction and partition of suit property.

(2) The brief facts of the case are as follows:

¼2½ okn i= pj.k 1 esa mYysf[kr oknxzLr Hkwfe oknhx.k ,oa izfroknh 13 dh nknh clh;kckbZ ifr vCnqy fuoklh [kjxksu ds LoRo] gDd ,oa ekydh vkf/kiR; dh jgh gSA clh;kckbZ ifr vCnqy ds vCnqy jgeku oknhx.k ds firk ,oa vCnqy lRrkj izfroknhx.k ds firk] iq= gS o nks iq=h;ka tsSrquch o [kkrquch FkhA eqLyhe mRrjkf/kdkj fof/k ds vUrxZr clh;kckbZ ds iq= gksus ls oknhx.k ds firk o izfroknhx.k ds firk vCnqy lrrkj dk leku LoRo gDd jgk gSA izfroknh 9 ,oa 10 tsrquch ds okjl ,oa izfroknh 11] 12 [kkrquch ds okjl gSA ¼3½ oknxzLr Hkwfe ds lEcU/k esa tSrquckbZ o [kkrquckbZ usa O;ogkj okn izLrqr fd;k Fkk fdarq vkilh le>kSrk dj okn fujLr djk fy;kA vkilh le>kSrs izek.ksa nksuks cguksa dks nks&nks p'ek txg nsus dk r; gqvk o nh xbZ gSA izfroknh 10 'ks[k lbZn tSrquckbZ dks nh xbZ txg esa o izfroknh gehn ;g [kkrquckbZ dks nh xbZ nks p'ek txg esa oknxzLr Hkwfe esa vius ifjokj lfgr jg jgs gSA ¼4½ [kljk ua- 340 dh jdck 20 fMofey Hkwfe esa oknhx.k dk Hkh jgoklq txg esa Lora= :i ls 21 ck; 11 fQV ij ,oa oknhx.k ds HkkbZ vCnqy jghe dk 60 ck; 12 tks firk ds le; ls vkf/kiR; pyk vk jgk gSA clh;kckbZ ds nksuksa gh iq= vCnqy jgeku ,oa vCnqy lRrkj nksuksa dk leku LoRo gDd gksrs gq, Hkh LoRo izek.ks dksbZ cVokM+s gq, ugh gSA ekrk clh;kckbZ ds le; ls fdjk;snkjksa ds fy;s 10 [kksyh;ka 68 ck; 32 oxZfQV dh Hkwfe esa cuh gqbZ gSA oknhx.k ds vkf/kiR; esa pyh vk jgh iwoZ&if'pe 21 fQV ,o mRrj&nf{k.k 11 fQV dh prq%lhek fuEukuqlkj gS%& iwoZ esa vke jksM+] if'pe esa xyh] mRrj esa izfroknh Ø- 5 gkfit ds vkf/kiR; dks jgoklq txg rFkk nf{k.k esa oknhx.k ds HkkbZ vCnqy jghe ds vkf/kiR; dh txg fLFkr gSA ¼5½ izfroknhx.k us NyiwoZd jktLo izi=ksa esa vius uke ntZ djok fy;s o fu;ru oknhx.k ds uke ntZ djk;s ugh gS] tcfd oknhx.k o izfroknhx.k dk leku LoRo gDd fgLlk gSA izfroknhx.k mijksDr Hkwfe vius uke ij djok ysus dk uktk;t ykHk ysrs gq, Hkwfe iSfd fdjk;snkjksa ds fy;s cuh gqbZ [kksyh;ka fcØh djus ds fy;s iz;Ru'khy gq, gSA oknhx.k dh vksj ls izfroknhx.k dks lwpuk i= iathd`r Mkd }kjk vius vfHkHkk"kd ds ek/;e ls iszf"kr fd;k fdarq izfroknhx.k us mldh iw.kZ mis{kk dh o feF;k tokc fnukad 29@6@2005 dks bl vk'k; dk iszf"kr fd;k fd Hkwfe clh;kckbZ ds }kjk vCnqy lRrkj dks fgck dj nh xbZ Fkh o bl lEcU/k esa ys[k Hkh fnukad 18@12@73 dks fy[k fn;k x;k gksus dk >qBk mYys[k fd;k gS] tcfd clh;kckbZ dh e`R;q mldh

103 o"kZ dh vk;q iw.kZ gksus ij gqbZ o e`R;q ds yxHkx 20 o"kZ iwoZ ls gh o`)koLFkk ds dkj.k mls lqukbZ] fn[kkbZ ugh nsrk Fkk vkSj u gh og Bhd ls le>rh FkhA clh;kckbZ us adHkh dksbZ fgck fd;k ugh vkSj ugh dksbZ nLrkost fu"ikfnr gh fd;k gS vU;Fkk izfroknhx.k o muds firk e`rd vCnqy lRrkj oknhx.k dks rFkk izfroknh Ø- 13 dks oknxzLr txg iSfd vius vkf/kiR; dh txg esa ekfyd ukrs ls jgus ugh nsrsA oknhx.k dks ;g okn LoRo ?

kks"k.kk ,oa yxkuh Hkwfe ds cVokM+s ,oa gsrq okn iwoZ LFkkbZ fu"ks?kkKk izLrqr djuk Hkkx gqvk gSA iszf"kr lwpuk i= fnukad 15@6@2015 dh izfr] iksLVy jlhn ,oa lwpuk i= dk tokc fnukad 29@6@2015 vly layXu izLrqr gSA (3) Learned trial Court vide judgment dated 18.09.2019 passed in RCS-02-A/2017 dismissed the suit and appeal filed by appellants/plaintiffs was also dismissed vide judgment dated 15.02.2022 passed by First District Judge, Khargone passed in RCA No.44/2019. Against this, appellants/plaintiffs has filed the present second appeal.

(4) Learned counsel for the appellants/plaintiffs submits that Basiya Bai was the owner of suit property during her lifetime and the appellants/plaintiffs are legal representatives of Basiya Bai, therefore they are entitled to 1/6 share in the suit property. From the evidence on record, essential ingredients of gift/hibanama are not proved and especially, it is not proved that after the execution of hibanama Ex.D/1, possession was also delivered to the Donee and Donee received the possession. Therefore, in view of Hamid Khan vs. Sher Khan reported in 2004 (4) MPLJ 253 essential ingredients of hibanama are not proved. It is also urged that if during lifetime of Basiya Bai, possession was handed over to the donee, then, why

Donee/Abdul Sattar did not get mutated his name over suit property during lifetime of Basia Bai. Therefore, Ex.D/1- Hibanama is not proved and hence appellants/plaintiffs being legal representatives of Basia Bai are entitled to one sixth share in the suit property. The findings given by learned courts below are perverse and against the evidence on record. On above grounds, it is submitted that substantial questions of law as mentioned in the appeal memo arise for determination of this Court and appeal be admitted for final hearing.

(5) I have heard counsel for the appellants/plaintiffs and have perused the records of Courts below.

(6) It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. plaintiffs suit was dismissed and appeal filed by the appellants/plaintiffs against this judgment was dismissed.

(7) 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".

(8) 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".

(9) 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".

(10) I have gone through the pleadings of the parties as well as

evidence adduced by the parties and have critically examined and assessed them as a whole and if pleadings of the parties and evidence adduced by the parties andimpugned 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.

(11) 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.

(12) For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of plaintiff's 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.

(13) A copy of this order along with record be sent back to the courts below for information and its compliance.

(ACHAL KUMAR PALIWAL) JUDGE Arun/-

ARUN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=d5b56e3de75e7828ced1a96bc4f0180 4c3ea1f0a5497e4019e41c0a82cbabbf0,

NAIR postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC004DD8FF 22B3F2FFC3D1EF75981FCBEF3B2B76823F270F 7, cn=ARUN NAIR Date: 2023.12.05 11:14:40 +05'30'