Banshilal vs Kamla Bai
2023 Latest Caselaw 20991 MP

Madhya Pradesh High Court

Banshilal vs Kamla Bai on 12 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 12th OF DECEMBER, 2023

           SECOND APPEAL No. 1435 of 2021

BETWEEN:-
BANSHILAL S/O NANIYA MALI, AGED ABOUT 62 YEARS,
OCCUPATION: AGRICULTURE VILL-JETAPUR TEH. (MADHYA
PRADESH)
                              .....APPELLANT/PLAINTIFF
(SHRI NARESH PIPLODIYA, ADVOCATE FOR APPELLANT)

AND
   KAMLA BAI W/O SURESH MALI, AGED ABOUT 45 YEARS,
1. OCCUPATION: AGRICUTURE VILL-JETAPUR (MADHYA
   PRADESH)
   STATE OF M.P. THROUGH COLLECTOR KHARGONE
2.
   (MADHYA PRADESH)
3. S.D.O. REVENUE KHARGONE (MADHYA PRADESH)
4. TEHSILDAR TEHSIL KHARGONE (MADHYA PRADESH)
   BHAGWAN MALI S/O LATE SHRI SURESH MALI, AGED
5. ABOUT 19 YEARS, VILLAGE JETAPUR, TEHSIL AND DISTRICT
   KHARGONE (MADHYA PRADESH)
   KUMARI NANDA D/O LATE SHRI SURESH MALI, AGED
6. ABOUT 25 YEARS, VILLAGE JETAPUR, TEHSIL AND DISTRICT
   KHARGONE (MADHYA PRADESH)
   SMT. POOJA D/O LAGE SHRI SURESH MALI, AGED ABOUT 23
7. YEARS, VILLAGE JETAPUR, TEHSIL AND DISTRICT
   KHARGONE (MADHYA PRADESH)
   KUMARI ARTI D/O LATE SHRI SURESH MALI, AGED ABOUT
8. 21 YEARS, VILLAGE JETAPUR, TEHSIL AND DISTRICT
   KHARGONE (MADHYA PRADESH)
                        .....RESPONDENTS/DEFENDANTS
(NONE FOR THE RESPONDENTS)
                                   2

      This appeal coming on for admission this day, the court
passed the following:

                            ORDER

This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 29.02.2020 passed by Second Additional District Judge, Khargone (MP) in Regular Civil Appeal No.53/2018 arising out of the judgment and decree dated 24.11.2018 passed in Civil Suit No.94-A/2017 passed by Fourth Civil Judge, Class-II, Khargone.

(2) The brief facts of the case are that appellant/plaintiff filed suit for partition, demarcation, declaration of title on the ground that suit property is a joint property of the parties and till today it has not been partitioned. It is also averred in the plaint that the said property is a joint family property of the parties. Partition order dated 21.06.2017 and 28.09.2017 are illegal and perverse and are not binding on appellant/plaintiff. Hence, it is prayed that it be declared that plaintiff's have 1/3 - 1/3 share in the suit property and as per above share, suit property be demarcated and partitioned.

(3) Learned trial Court vide judgment dated 24.11.2018 passed in RCS-A No.94/2017 dismissed the suit filed by appellant/plaintiff and the said appeal filed by appellant/plaintiff was also dismissed vide judgment dated 29.02.2020 passed in RCS No.53/2008 by Second Additional District Judge,

Khargone (MP). Against this, the appellant/plaintiff has filed the second appeal.

(4) Learned counsel for the appellant/plaintiff has submitted that plaintiff as well as husband of defendant No.1 are real brother and there is no dispute with respect to share of the parties, the present suit has been filed for demarcation as well as partition. Learned courts below have wrongly dismissed the suit as well as appeal and findings recorded by the 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 learned counsel for the appellant/plaintiff 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. both the Courts below have dismissed the suit/appeal filed by the appellant/plaintiff.

(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) From perusal of record of the case and submissions of learned counsel for the appellant/plaintiff it is evident that there is no dispute with respect to share of parties and it is also an admitted position that plaintiffs as well as husband of defendant No.1 are real brothers. It appears that primarily present suit has been filed for demarcation and partition. In this Court's considered opinion, when there is no dispute with respect to share of parties then parties may approach competent revenue court for demarcation as well as partition of agricultural land. Further, in the facts and circumstances of the case, the Court's below have clearly held that partition had taken place between the parties and Tehsil court has passed the order with respect to possession and partition with the consent of parties. Further if the parties or any of them is not satisfied with the partition made by the revenue court, then they may approach competent Revenue Court or High Court as the case may be but the civil suit for the same is not maintainable. Hence, in view of above, it cannot be said that findings recorded by the Courts below are perverse or illegal against the evidence on record.

(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 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 appeal. Concurrent findings recorded by the Courts below in favour of plaintiffs are fully justified by the evidence on record. Concurrent findings recorded by the Courts 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.

(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 Arun/-

ARUN

2.5.4.20=d5b56e3de75e7828ced1a96 bc4f01804c3ea1f0a5497e4019e41c0a

NAIR 82cbabbf0, postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC0 04DD8FF22B3F2FFC3D1EF75981FCBE F3B2B76823F270F7, cn=ARUN NAIR Date: 2023.12.13 12:14:36 +05'30'