Madhya Pradesh High Court
Sitaram vs Jalamsingh on 5 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 5th OF DECEMBER, 2023
SECOND APPEAL No. 1431 of 2021
BETWEEN:-
SITARAM S/O LATE SHRI MANGILAL, AGED ABOUT 50
1. YEARS, OCCUPATION: AGRICULTURE R/O VILL-BHILGUN
TEH. SARDARPUR DISTRICT DHAR (MADHYA PRADESH)
BHERU S/O LATE SHRI MANGILAL, AGED ABOUT 40 YEARS,
2. OCCUPATION: AGRICULTURIST R/O VILLAGE BHILGUN,
TEHSIL SARDARPUR DIST. DHAR (MADHYA PRADESH)
LAXMIBAI W/O SITARAM, AGED ABOUT 40 YEARS,
3. OCCUPATION: AGRICULTURIST VILLAGE BHILGUN, TEHSIL
SARDARPUR DIST DHAR (MADHYA PRADESH)
PANNALAL S/O KHEMA (DECEASED) THROUGH LEGAL
4.
REPRESENTATIVES:
UMRIBAI W/O LATE SHRI PANNALAL AGED 60 YEARS,
A OCCUPATION AGRICULTURIST R/O VILLAGE GHAODA,
TEHSIL SARDARPUR, DISTRICT DHAR
RAMESHWAR S/O LATE SHRI PANNALAL, AGED 40 YEARS
B OCCUPATION AGRICULTURIST, R/O VILLAGE GHAODA,
TEHSIL SARDARPUR, DISTRICT DHAR (M.P)
AMRIT S/O LATE SHRI PANNALAL, AGED 36 YEARS,
OCCUPATION AGRICULTURIST, R/O VILLAGE GHAODA,
C TEHSIL SARDARPUR, DISTRICT DHAR (M.P)
-----------------------------------------------------------------------------------------
D AZAD S/O LATE SHRI PANNALAL, AGED 34 YEARS
. OCCUPATION AGRICULTURIST, R/O VILLAGE GHAODA,
TEHSIL SARDARPUR, DISTRICT DHAR (M.P)
.....APPELLANTS
(SHRI MAKBOOL AHMAD MANSOORI, LEARNED COUNSEL FOR
THE APPELLANTS) .
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 12/7/2023
2:40:26 PM
2
AND
JALAMSINGH S/O SHRI RATANSINGH RAJPUT, AGED ABOUT
1. 50 YEARS, OCCUPATION: AGRICUTLURE VILL-BHILGUN
THE. SARDARPUR (MADHYA PRADESH)
SITABAI D/O LATE SHRI MANGILAL W/O NIRBHAYSINGH
BHIL, AGED ABOUT 38 YEARS, OCCUPATION:
2.
AGRICULTURIST VILLAGE ANANDKHEDI, TEHSIL
SARDARPUR (MADHYA PRADESH)
3. STATE OF M.P. THR COLLECTOR DHAR (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, the court
passed the following:
ORDER
This second appeal has been filed by the
appellants/defendants under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated
07.09.2021 passed by learned Additional Judge to the Court of
First Additional District Judge, Sardarpur, district Dhar in Regular
Civil Appeal No.41/2017, whereby judgment and decree dated
26.09.2017 passed by Civil Judge, Class-II, Sardarpur, Dhar (MP)
in Civil Suit No.14-A/2017, dismissing the suit, has been set aside
and the suit has been decreed in favour of the plaintiff.
2. Brief facts of the case are that respondent No.1/plaintiff
filed a suit seeking relief of permanent injunction against the
appellants and other defendants with respect to suit property on the
ground that he is owner and in possession of suit property.
3. Learned counsel for the appellants, after referring to
testimony of PW/1 as well as Ex.D/1's statement, submits that
plaintiff has admitted that he handed over the possession of suit
property to defendant after execution of agreement to sell but there
is nothing on record to show as to when plaintiff got back
possession from defendant. Learned trial Court has dismissed the
plaintiff's suit on the ground that he has not approached the Court
with clean hands, hence relief of injunction, being equitable relief
cannot be granted. Learned appellate Court has wrongly decreed
the suit and has not properly discussed the findings recorded by
the trial Court before reversing the same. Learned counsel also
submits that as plaintiff was not in possession at the time of
institution of suit, therefore, the suit itself was not maintainable.
From evidence on record, plaintiff's possession on the date of
institution of suit is not proved, therefore, in view of above,
substantial questions of law (b) & (c) as formulated in the appeal
memo arise for determination in this appeal, hence appeal be
admitted for final hearing.
4. I have heard counsel for the appellants/defendants and have
perused the records of Courts below.
5. It is apparent from records of Courts below that plaintiff's
suit was dismissed and appeal filed by the plaintiff/appellant
against this judgment was allowed. But it is also apparent from
trial Court's judgment that on issue No.1 & 2 the Court has
returned findings in favour of plaintiff.
6. Therefore, question arises as to when this Court can
interfere with the findings of facts arrived at by the Court 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 trial Court reveal that
trial Court has clearly held that plaintiff is in possession of suit
property and defendant is interfering in the possession of the
plaintiff over the suit property. Trial Court's above finding has
been affirmed by the first appellate Court. It is apparent from
appellate Court's record that no cross objection etc against above
findings of trial Court has been preferred by the
appellant/defendant. If Ex.D/1's statement is read along with other
evidence on record, then, only on the basis of Ex.D/1's testimony,
it cannot be said that plaintiff has failed to prove his possession
over suit property. It is also relevant to state that in the instant
case appellants/defendants have not adduced any evidence to rebut
the evidence adduced by plaintiff except Ex.D/1, D/2 & D/3's
documents. It is also important to note that defendants/appellants
have not filed the agreement to sell and Panchnama as mentioned
in para-7 of Ex.D/1's statement. Therefore, if overall evidence that
is available on record, is assessed as a whole, then plaintiff's
possession over the suit property is clearly established.
10. 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 recorded by the Court
below are not liable to be interfered with in the instant case and it
cannot be said that Court below has 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 judgment and decree passed by
the Court 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 appellants/defendants
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. The findings recorded by the Court below in favour
of plaintiff are fully justified by the evidence on record. The
findings recorded by the Court 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
hk/
