Smt. Gajala Bee vs Abdulwahab
2023 Latest Caselaw 20335 MP

Madhya Pradesh High Court

Smt. Gajala Bee vs Abdulwahab on 4 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 4th OF DECEMBER, 2023

             SECOND APPEAL No. 1370 of 2022

BETWEEN:-
SMT. GAJALA BEE W/O ARIF HUSSAIN MANSURI, AGED ABOUT
38 YEARS, OCCUPATION: HOUSEHOLD WORK 508, GANJIPURA
KHALGHAT, TEHSIL DHARAMPURI (MADHYA PRADESH)
                                       .....APPELLANT/PLAINTIFF
(MR. SUNIL KUMAR GANGWAL, ADVOCATE FOR APPELLANT)

AND
   ABDULWAHAB S/O JAINUL ABEDEEN MANSURI, AGED
   ABOUT 46 YEARS, OCCUPATION: DRIVER 226, MAHATMA
1.
   GANDHI MARG, WARD NO. 2, NAGAR ALIRAJPUR (MADHYA
   PRADESH)
   NAGAR PALIKA PARISHAD THROUGH ADHYASHAK NAGAR
2.
   PALIKA PARISHAD (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 appellant/plaintiff under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 11.04.2022 passed by learned Principal District Judge, Alirajpur in Regular Civil Appeal No.2A/2022, arising out of judgment

and decree dated 20.12.2021 passed in Regular Civil Suit No.07-A/2019.

(2) The brief facts of the case are that appellant/plaintiff's father received the suit property in the partition effected between plaintiff's father as well as defendant No.1. After the death of her father, appellant/plaintiff got the suit property and since then she is in possession of suit property. During the pendency of civil suit, respondents/defendants has forged the hibanama. Riyaz Mohammad has never executed the hibanama. Hence the appellant/plaintiff is the owner of suit property.

(3) Learned trial Court vide judgment dated 20.12.2021 passed in RCS-7A/2019 decreed the suit and appellate Court vide judgment dated 11.04.2022 has allowed the appeal filed by defendant Abdul Wahab and vide judgment dated 11.04.2022 passed in RCA No.2A/2022 dismissed the suit filed by appellant/plaintiff. Against this, appellant/plaintiff has filed the present second appeal.

(4) Learned counsel for the appellant/plaintiff has submitted that in the Ex.P/9 and Ex.P/16, there is no mention about the Hibanama and during the suit, Ex.P/13's - Hibanama has been filed and only in the written statement there is mention about Hibanama. There are no signatures on the first page of hibanama and there are corrections or interpolations on the second page of Hibanama. The defendants have admitted that he is not in possession of suit property and in the instant case, important

ingredients of Hibanama with respect to handing over and taking over of possession of Hiba property are not established. On 20.07.2011, Riyaz Mohammad was not physically and mentally fit to execute the Hibanama. The trial Court has rightly discussed the evidence on record but the appellate Court has reversed the findings without discussing the evidence in right perspective/properly. Further relying upon judgment in the case of Khemchand vs. Parvat Singh reported in [1996(II) MPWN] 125, it is urged that if signatures of Riyaz Mohammad on Hibanama Ex.P/13 are compared with other signatures of Riyaz Mohammad, then, it is apparent that Ex.P/13 has not been signed by Riyaz Mohammad. Hence, 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 learned counsel for the appellant/plaintiff and have perused the records of Courts below.

(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) It is correct that there is no mention of Hibanama in Ex.P/9 and Ex.P/16 and that there are no signatures on first page of Hibanama Ex.P/13 but it is not correct that there are any material alterations or interpolations in Hibanama Ex.P/13. Further from testimony of defendant - Abdul Wahab, it cannot be said that he has admitted plaintiff's possession on suit property. In view of averments in the plaint as well as testimony of plaintiff's witness - Gazala Bee, it cannot be said that she is in possession of suit property since the death of her father. Further, trial Court has wrongly relied upon the handwriting expert's report, whereas the handwriting expert's was not examined by the appellant/plaintiff. Therefore, handwriting expert's report could not have been relied upon or taken into consideration by the trial Court. Further, it is not proved from evidence on record that Riyaz Mohammad was not physically and mentally fit to execute the Hibanama. I have gone through the impugned judgment passed by the Principal District Judge, Alirajpur and it cannot be said that appellate Court has not discussed and assessed the evidence on record. Hence, in overall view of the matter it cannot be said that findings recorded by the appellate Court are against evidence or perverse.

(10) I have also gone through the pleadings of the parties as well as evidence adduced by the parties and have critically and minutely examined them. There appears to be no illegality or perversity in the findings recorded by the appellate Court and the findings recorded by the appellate Court are well supported by the evidence on record and if pleadings of the parties and evidence adduced by the parties and the impugned judgment passed by the

Court 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 recorded by the appellate Court not liable to be interfered with in the instant case and it cannot be said that appellate court has ignored any material evidence or has acted on no evidence or Court has 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 Court below is based on inadmissible evidence.

(11) A perusal of the impugned judgment and decree passed by the Court below reveal that it is well reasoned and has 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 Court below are illegal, perverse and based on no evidence etc. The learned Court below has 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. Findings recorded by the Court below in favour of plaintiffs are fully justified by the evidence on record. Fndings recorded by the Court below are not based on misreading or misappreciation 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=d5b56e3de75e7828ced1a96bc4f018 04c3ea1f0a5497e4019e41c0a82cbabbf0,

NAIR postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC004DD8 FF22B3F2FFC3D1EF75981FCBEF3B2B76823F 270F7, cn=ARUN NAIR Date: 2023.12.07 16:39:25 +05'30'