Madhya Pradesh High Court
Premnarayan (Deceased Thru Lrs ... vs Nannulal on 11 December, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
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IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 11th OF DECEMBER, 2023
SECOND APPEAL No. 252 of 2021
BETWEEN:-
1. PREMNARAYAN (DECEASED THRU LRS KOUSHALYA BAI W/O LATE
SHRI PREMNARAYAN DESHWALI OCCUPATION: NOTHING GRAM
CHARKHEDI, TEHSIL KALAPIPAL, DISTT-SHAJAPUR (MADHYA
PRADESH)
2. PREMNARAYAN (DECEASED) THROUGH LRS BHOORI BAI W/O
PAPPU DESHWALI NEW DELHI COLONY, JAORA DISTT. UJJAIN
(MADHYA PRADESH)
3. PREMNARAYAN (DECEASED) THROUGH LRS RITU BAI W/O RAJESH
SINGH GRAM LASUDLIYA BHAMA TEH. NARSINGHGARH DISTT.
RAJGARH (MADHYA PRADESH)
4. PREMNARAYAN (DECEASED) THROUGH LRS MEENU BAI W/O
MANISH GRAM CHARKHEDI, TEHSIL KALAPIPAL (MADHYA
PRADESH)
5. PREMNARAYAN (DECEASED) THROUGH LRS POOJA D/O LATE
PREMNARAYAN GRAM CHARKHEDI, TEHSIL KALAPIPAL, DISTT-
SHAJAPUR (MADHYA PRADESH)
6. RAMSINGH S/O HARIPRASAD DESHWALI, AGED ABOUT 48 YEARS,
GRAM NIPANYA CHETAN TEH. NARSINGHGARH, DISTT-RAJGARH
(MADHYA PRADESH)
7. NARAYAN SINGH S/O HARIPRASAD DESHWALI, AGED ABOUT 43
YEARS, GRAM NIPANYA CHETAN TEH. NARSINGHGARH, DISTT-
RAJGARH (MADHYA PRADESH)
.....APPELLANTS
(MS. REKHA SHRIVASTAVA, LEARNED COUNSEL FOR THE APPELLANTS)
AND
1. NANNULAL S/O BHAGIRATH DESHWALI, AGED ABOUT 78 YEARS,
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OCCUPATION: AGRICULTURIST GRAM NIAPANYA CHETAN TEHSIL
NARSINGHGARH, DISTT-RAJGARH (MADHYA PRADESH)
2. DISTRICT COLLECTOR RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
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This appeal coming on for admission this day, the court passed
the following:
ORDER
This second appeal has been filed by the appellant/defendant Nos.1
to 3 being aggrieved by judgment and decree dated 28.11.2020 passed by
First Additional District Judge, Narsinghgarh, District-Rajgarh in RCA
No.2160/2015 whereby first appellate court has allowed the appeal and set
aside the decree and judgment dated 20.10.2015 passed by Civil Judge,
Class-I, Narsinghgarh, Distt.-Rajgarh in RCS No.99A/1914.
02. Brief facts of the case are that respondent No.1/plaintiff filed a suit
for declaration of title as well as permanent injunction on the ground that
he is owner and in possession of suit property and he has perfected
ownership by way of adverse possession.
03. Perusal of case file reveals that trial court vide judgment dated
20.10.2015 passed in RCS No.99A/2014 dismissed the suit filed by
respondent No.1/plaintiff on the ground that it is time barred and an appeal
filed by respondent/plaintiff against the aforesaid judgment was allowed
by First Additional District Judge, Narsinghgarh vide judgment dated
28.11.2020 in RCA No.2160/2015, reversing the findings of trial court and
decreed the suit filed by respondent/plaintiff. Against this judgment,
appellants/defendants have filed present second appeal .
04. Learned counsel for the appellant/defendant after referring to para
11 of the impugned judgment passed by trial court as well as pleadings in
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the plaint submits that in the plaint, plaintiff has taken contradictory
pleadings with respect to title/ownership, first, it is pleaded that plaintiff's
father purchased the land from defendant's father but because of non-
arrangement of required consideration, registered sale-deed could not be
executed, therefore, plaintiff acquired the title/ownership on that basis.
Further, plaintiff has also pleaded that on account of adverse possession,
plaintiff has acquired ownership. Plaintiff cannot take contradictory plea
with respect to acquisition of title/ownership.
05. After referring to para Nos.19 to 23 of trial court's judgment, it is
urged that trial court has rightly held that plaintiff did not acquire
ownership on the basis of adverse possession. Further, trial court has
rightly held that plaintiff's suit is time barred. Plaintiff has filed present
suit after completion of 19 years whereas, plaintiff has to file it
immediately after completion of 12 years. In the instant case, suit has been
filed after 18 years, therefore, plaintiff's suit was rightly dismissed as time
barred. It is also urged that appellate court has not returned the findings
with respect to agreement of sale. On above ground, it is urged that
substantial questions of law as mentioned in the appeal memo, arise in the
instant case and appeal be admitted for final hearing.
06. I have heard learned counsel for the parties and perused the records
of Courts below.
07. 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
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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".
08. 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
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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
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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".
09. Perusal of trial court's judgment reveals that learned trial court has
concluded that plaintiff is in possession of suit property and defendant is
interfering with plaintiff's possession over suit property but dismissed the
suit filed by plaintiff on the ground that it is time barred/possession of
plaintiff cannot be termed as adverse possession. Against above findings
of trial court, no appeal/cross objections were filed by defendant before
first appellate court and appellate court allowed the appeal filed by
plaintiff and decreed the suit.
10. Perusal of plaint filed by plaintiff reveals that plaintiff has not
claimed title on the basis of sale. Perusal of plaint averments reveals that
plaintiff has sought relief of declaration of title as well as permanent
injunction solely on the ground that he has perfected his title by way of
adverse possession/acquired title on the basis of adverse possession.
Therefore, it cannot be said that plaintiff took contradictory pleas with
respect to acquisition of ownership as submitted by learned counsel for the
appellant. It is also important to note that out of 3 defendants, only one
defendant- Premnarayan preferred this second appeal. Further perusal of
Ex.P-4 to Ex.P-7 reveals that Ramsingh and Narayansingh had previously
filed a suit for permanent injunction with respect to share of survey
No.253 against plaintiff of present case as well as appellant/defendant-
Premnarayan of present case. As per Ex.P-7, above suit was dismissed on
the ground that compromise has taken place between the parties. From
over all evidence on record as well as pleadings of parties, evidently
plaintiff is in possession of suit property since 12.05.1982 (i.e. from the
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date of agreement). Evidently, appellant/defendant/remaining defendants
have not initiated any proceedings to take back possession of suit property
from plaintiff. Perusal of plaint averments as well as evidence led by
plaintiff reveals that plaintiff filed present suit for declaration of title and
injunction when defendant No.1 started interfering with plaintiff's
possession over the suit property. Therefore, it cannot be said that
plaintiff's suit was barred by limitation.
11. 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 appellate court are 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 appellate 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 appellate court are
based on inadmissible evidence.
12. A perusal of the impugned judgment and decree passed by the
appellate court 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/defendant No.1 has failed to show that how the
findings of facts recorded by the appellate court are illegal, perverse and
based on no evidence etc. The learned appellate court has legally and
rightly dealt with the issues involved in the matter and have recorded
correct findings of facts.
13. For the reasons aforesaid, I find no merit in the instant second
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appeal. Findings recorded by the appellate court in favour of plaintiff are
fully justified by the evidence on record. Findings recorded by the
appellate court 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.
14. A copy of this order along with record be sent back to the courts
below for information and its compliance.
(ACHAL KUMAR PALIWAL )
JUDGE
N.R.
