Madhya Pradesh High Court
Smt. Chanchala W/O Giriraj Mahajan ... vs Rameshchandar S/O Kanhaiyyalal Gaur ... on 12 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 12th OF DECEMBER, 2023
SECOND APPEAL No. 1366 of 2022
BETWEEN:-
SMT. CHANCHALA W/O GIRIRAJ MAHAJAN THROUGH POWER OF
ATTORNEY SHRIKRISHNA S/O GANGARAM MAHAJAN, AGED ABOUT 69
YEARS, BHATWADI MOHALLA, TAIOR GALI, KHARGONE (MADHYA
PRADESH)
.....APPELLANT
(SHRI LOKESH SHAH, LEARNED COUNSEL FOR THE APPELLANT)
AND
1. RAMESHCHANDAR S/O KANHAIYYALAL GAUR (DECEASED)
THROUGH HIS LRS VIRENDRA DECEASED THROUGH LRS SMT.
LALITA GAUR W/O VIRENDRA GAUR, AGED ABOUT 66 YEARS, NUAN
NAGAR COLONY OPPOSITE RADHAKUND KHARGONE (MADHYA
PRADESH)
2. RAMESHCHANDAR S/O KANHAIYYALAL GAUR (DECEASED)
THROUGH HIS LRS VIRENDRA DECEASED THROUGH LRS HMANT
(RINKU) S/O RAMESHCHANDRA GAUR, AGED ABOUT 68 YEARS,
NUTAN NAGAR COLONY OPP. RADHAKUNJ (MADHYA PRADESH)
3. VIPIN S/O RAMESHCHANDRA GAUR, AGED ABOUT 68 YEARS, R/O
GAON SHINDE NAGAR (MADHYA PRADESH)
4. VINOD S/O RAMESHCHANDRA GAUR (DECEASED) THROUGH HIS
LRS. SMT. NEEMA W/O VINOD GAUR, AGED ABOUT 54 YEARS,
OCCUPATION: HOUSEHOLD AND BUSINESS R/O GAUR PETROL
PUMP BUS STAND KHARGONE (MADHYA PRADESH)
5. VINOD S/O RAMESHCHANDRA GAUR (DECEASED) THROUGH HIS
LRS. HARSHVARDHAN S/O VINOD GAUR, AGED ABOUT 35 YEARS,
OCCUPATION: BUSINESS R/O GAUR PETROL PUMP BUS STAND
KHARGONE (MADHYA PRADESH)
6. VINOD S/O RAMESHCHANDRA GAUR (DECEASED) THROUGH HIS
LRS. KUMARI RUSHIKA D/O VINOD GAUR, AGED ABOUT 33 YEARS,
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R/O GAUR PETROL PUMP BUS STAND KHARGONE (MADHYA
PRADESH)
7. VINOD S/O RAMESHCHANDRA GAUR (DECEASED) THROUGH HIS
LRS. DULDUL GAUR D/O VINOD GAUR, AGED ABOUT 31 YEARS, R/O
GAUR PETROL PUMP BUS STAND KHARGONE (MADHYA PRADESH)
8. GOPALKRISHNA @ GUDDU S/O RAMESH CHAND GAUR (DECEASED)
THROUGH LRS. SMT. SUSHMA GAUR W/O GOPALKRISHNA GAUR,
AGED ABOUT 56 YEARS, R/O NUTAN NAGAR COLONYY OPP.
RADHAKUNJ (MADHYA PRADESH)
9. GOPALKRISHNA @ GUDDU S/O RAMESH CHAND GAUR (DECEASED)
THROUGH LRS. YUVRAJ S/O GOPALKRISHNA GAUR, AGED ABOUT
37 YEARS, R/O NUTAN NAGAR COLONY OPP. RADHAKUNJ (MADHYA
PRADESH)
10. ASHOK @ PAPPU S/O RAMESHCHANDRA GAUR, AGED ABOUT 66
YEARS, R/O NUTAN NAGAR COLONY OPP. RADHAKUNJ (MADHYA
PRADESH)
11. SNEHLATA (MUNNI) W/O BHUPENDRA ARYA, AGED ABOUT 54
YEARS, R/O VAISHNAVI COLONY (MADHYA PRADESH)
12. ANITA @ TINKI W/O PRAKASHCHAND JAISWAL, AGED ABOUT 61
YEARS, R/O KHATIWALA TANK INDORE C/O VIPIN S/O
RAMESHCHANDRA GAUR R/O GANSHINDE COLONY (MADHYA
PRADESH)
13. ANJU @ SUNITA W/O SUNIL JAISWAL, AGED ABOUT 59 YEARS,
PUNE (MAHARASHTRA) C/O VIPIN S/O RAMESHCHANDRA GAUR
R/O GAONSHINDE COLONY (MADHYA PRADESH)
14. BABITA @ GULLU W/O RAJESH JAISWAL, AGED ABOUT 51 YEARS,
R/O GAONSHINDE COLONY (MADHYA PRADESH)
15. LAXMIBAI @ LACHHU W/O RAJESH JAISWAL, AGED ABOUT 48
YEARS, R/O TAGORE PARK COLONY (MADHYA PRADESH)
16. TEHSILDAR TEHSIL KHARGONE (MADHYA PRADESH)
17. COLLECTOR THE STATE OF MADHYA PRADESH KHARGONE
(MADHYA PRADESH)
.....RESPONDENTS
(MS. VINITA DWIVEDI, PANEL LAWYER APPEARING ON BEHALF OF
ADVOCATE GENERAL)
___________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
ORDER
This second appeal has been filed by the appellant/plaintiff being
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aggrieved by judgment and decree dated 05.02.2022 passed by 4 th District
Judge, Khargone, West Nimar (M.P.) in RCA No.37/2018 whereby the
first appellate court has upheld the decree and judgment dated 27.08.2018
passed by 3rd Civil Judge, Senior Division, Khargone, West Nimar (M.P.)
in RCS No.20A/2017, dismissing the suit filed by appellants/plaintiffs.
02. Brief facts of the case are that appellant/plaintiff filed a suit for
declaration and permanent injunction and also for declaring demarcation
settlement map dated 07.06.2007 and permanent boundary marks being
contrary to defendant No.1's certified map as illegal and void and for
issuance of injunction to the effect that they do not interfere with
plaintiff's possession over suit property and not alienate it in any way.
03. Learned trial court vide judgment dated 27.08.2018 passed in RCS
No.20A/2017 dismissed the suit and appeal filed by the plaintiff against
above judgment was also dismissed by 4th District Judge, Khargone vide
judgment dated 05.02.2022 passed in RCA No.37/2018. Against this,
appellant/plaintiff has filed this present appeal.
04. Learned counsel for the appellant/plaintiff submits that learned
courts below have wrongly held that suit is not maintainable Findings
recorded by courts below are against evidence on record and they are
perverse. Hence, substantial questions of law as mentioned in the appeal
memo arise for determination by this Court. Hence, present appeal be
admitted for final hearing.
05. I have heard learned counsel for the appellant/plaintiff and perused
the records of Courts below.
06. It is apparent from records of Courts below that it is a case of
concurrent findings of facts i.e. both the Courts below have dismissed the
suit/appeal filed by the appellant/plaintiff.
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07. 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".
08. 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
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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".
09. 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
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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. Perusal of judgments passed by courts below reveals that courts
below have clearly held that relief claimed in para No.11A of plaint cannot
be granted by civil court and with respect to above, suit is not
maintainable. Evidently, relief as claimed in para 11A of plaint can only be
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claimed before revenue court / High Court by filing writ petition etc. and
civil court cannot grant relief claimed in para 11A of plaint. So far as relief
claimed in para 11B of plaint is concerned, I have gone through the
pleadings of parties as well as evidence adduced by parties and have
minutely examined them and there appears to be no illegality or perversity
in the findings recorded by the courts below with respect to relief claimed
in 11B of the plaint.
11. Furthers, 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.
12. 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.
13. For the reasons aforesaid, I find no merit in the instant second
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appeal. Concurrent findings recorded by the Courts below 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.
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.
