Madhya Pradesh High Court

Ramkaran vs Nasim Khan on 6 February, 2023

Author: Gurpal Singh Ahluwalia

1 S.A. No.547/2011 & S.A. No.660/2011

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF FEBRUARY, 2023
SECOND APPEAL No. 547 of 2011
BETWEEN:-

1. RAMKARAN S/O LATE BALDEO PRASD
DUBEY R/O VILLAGE DEORAKALA,
TAHSIL VIJAYRAGHAVGARH, DISTRICT
KATNI (MADHYA PRADESH)

2. RAVISHANKAR S/O RAMKARAN DUBEY
R/O VILLAGE DEORAKALA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
(MADHYA PRADESH)

3. ARVIND KUMAR S/O RAMKARAN DUBEY
R/O VILLAGE DEORAKALA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
(MADHYA PRADESH)

.....APPELLANTS

(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI RAM MURTI
TIWARI - ADVOCATE)

AND

1. NASIM KHAN S/O LATE IBRAHIM KHAN,
AGED ABOUT 51 YEARS, OCCUPATION:
BUS OPERATOR R/O KHALWARA BAZAR,
KYMORE TAHSIL VIJAYRAGHAVGARH
DISTRICT KATNI (MADHYA PRADESH)

2. GOVIND PRASAD S/O LATE BALDEO
PRASAD DUBEY R/O VILLAGE
DEORAKLA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
2 S.A. No.547/2011 & S.A. No.660/2011

(MADHYA PRADESH)

3. BALMIK S/O GOVIND PRASAD DUBEY R/O
VILLAGE DEORAKLA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
(MADHYA PRADESH)

4. POORAN S/O GOVIND PRASAD DUBEY
R/O VILLAGE DEORAKLA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
(MADHYA PRADESH)

5. NAVEEN S/O GOVIND PRASAD DUBEY R/O
VILLAGE DEORAKLA, TAHSIL
VIJAYRAGHAVGARH, DISTRICT KATNI
(MADHYA PRADESH)

6. SMT. MUNNI BAI W/O GOVIND PRASAD
DUBEY R/O VILLAGE DEORAKLA,
TAHSIL VIJAYRAGHAVGARH, DISTRICT
KATNI (MADHYA PRADESH)

7. STATE OF M.P. THROUGH COLLECTOR,
KATNI, DISTRICT KATNI (MADHYA
PRADESH)

.....RESPONDENTS

(BY SHRI EMTIYAZ HUSSAIN- SENIOR ADVOCATE WITH SHRI
MOHAMMAD SAZID KHAN - ADVOCATE )

SECOND APPEAL No. 660 of 2011
BETWEEN:-

NASIM KHAN S/O LATE IBRAHIM KHAN, AGED
ABOUT 57 YEARS, OCCUPATION:
3 S.A. No.547/2011 & S.A. No.660/2011

AGRICULTURE & BUS OPERATOR R/O
KHALWARA BAZAR, KAIMORE, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

.....APPELLANT
(BY SHRI EMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI
MOHAMMAD SAZID KHAN - ADVOCATE)

AND

1. RAMKARAN S/O LATE BALDEO PRASAD
DUBEY, AGED ABOUT 65 YEARS, R/O
VILLAGE DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

2. RAVISHANKAR S/O RAMKARAN DUBEY,
AGED ABOUT 30 YEARS, R/O VILLAGE
DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

3. ARVIND KUMAR S/O RAMKARAN DUBEY,
AGED ABOUT 25 YEARS, R/O VILLAGE
DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

4. GOVIND PRASAD S/O BALDEO PRASAD
DUBEY, AGED ABOUT 55 YEARS, R/O
VILLAGE DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

5. VALMIK S/O GOVIND PRASAD DUBEY,
AGED ABOUT 30 YEARS, R/O VILLAGE
DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
4 S.A. No.547/2011 & S.A. No.660/2011

(MADHYA PRADESH)

6. POORAN S/O GOVIND PRASAD DUBEY,
AGED ABOUT 28 YEARS, R/O VILLAGE
DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

7. NAVEEN S/O GOVIND PRASAD DUBEY,
AGED ABOUT 25 YEARS, R/O VILLAGE
DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

8. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR, KATNI,
DISTRICT KATNI (MADHYA PRADESH)

9. SMT. MUNNIBAI W/O GOVIND PRASAD
DUBEY, AGED ABOUT 55 YEARS, R/O
VILLAGE DEORAKALAN, TAHSIL
VIJAYRAGHOGARH, DISTRICT KATNI
(MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI RAM MURTI
TIWARI - ADVOCATE)
.........................................................................................................

These appeals coming on for admission this day, the court passed

the following:

JUDGMENT

By this common judgment, S.A. No.660/2011 filed by appellant Nasim Khan shall also be decided.

2. Both the Second Appeals have been filed against the judgment

and decree dated 21.03.2011 passed by 3rd Additional District Judge, (Fast Track Court) Katni in Civil Appeal No.26A/2010 arising out of judgment and decree dated 08.10.2010 passed by Civil Judge, Class-I, Vijayraghavgarh, District Katni in Civil Suit No.2A/2009.

3. The appellant Nasim Khan in S.A. No.660/2011 is the plaintiff, whereas the appellants Ramkaran, Ravishankar and Arvind Kumar were defendants No.1 to 3 in the civil suit.

4. The plaintiff filed a civil suit for declaration of title on the ground that by a registered sale deed dated 12.05.1993, he had purchased disputed land i.e. Khasra No.1588 and 1610 area 1.75 and 0.51 hectares respectively from Balmik Dubey, Puran Dubey and Navin Dubey all sons of Govind Prasad Dubey. The plaintiff has planted trees and is also carrying out agricultural activities. The disputed land is encircled by the wired boundaries. It is the case of the plaintiff that the defendants No.5, 6 and 7 from whom he has purchased the property were minor at the relevant time and therefore, the sale deed was executed through their natural guardian i.e. their mother. According to the plaintiff, the family tree was as under:

Baldev Prasad

Ramkaran Govind Prasad

Ravishankar Arvind Balmik Puran Navin

5. It was further pleaded that the defendants No.1, 2 and 3 had filed a suit against Govind Prasad and in Appeal No.15A/2005, which was pending before Additional District Judge, Katni, a compromise was arrived at between the defendants No.1, 2 and 3 and Govind Prasad. The said compromise is not binding on the plaintiff as he was not the party to the suit. Thus, it was claimed that the plaintiff is in possession of the land in dispute after having purchased the same from the defendants No.5, 6 and 7 by registered sale deed, which was executed by their mother. By way of amendment, it was pleaded that the land was sold for the legal necessity for meeting out the educational expenses of the defendants No.5, 6 and 7.

6. The defendants No.1, 2 and 3 filed their written statement and admitted that Baldev Prasad was the owner of the land in dispute. Govind Prasad/defendant No.4 is the younger brother of the defendant No.1. After the death of Baldev Prasad, it was pleaded that Govind Prasad/defendant No.4 had maliciously got the names of his sons recorded in the Khasra Panchshala, whereas on the death of Baldev Prasad, the defendants No.5 to 7 had no right or title being the grand- sons of Baldev Prasad. Earlier, the defendants No.1, 2 and 3 had filed a suit for declaration of title. Although, the defendants No.5 to 7 were aware of the fact that the defendants No.1 to 3 have already filed a suit, still the plaintiff in connivance with the defendant No.4, by taking advantage of the mutation, purchased the property. It was further pleaded that it was obligatory on the part of the plaintiff to verify the title of the defendants No.5 to 7. Mere mutation entry will not confer any right or title. Furthermore, the suit filed by the defendants No.1 to 3 was already pending, therefore, the sale deed executed during the

pendency of the said suit would also be hit by Section 52 of Transfer of Property Act. The plaintiff had filed an application for impleading himself to be a party in the suit filed by the defendants No.1 to 3. However, by order dated 17.02.2004, the said application was rejected and it was clarified that the plaintiff would be bound by the judgment passed in the said civil suit. The said civil suit was decreed by order dated 30.06.2006 and the mutation in favour of the defendants No.5 to 7 was cancelled and thus, it is clear that the defendants No.5 to 7 had no right or title to alienate the property and the sale deed executed in favour of the plaintiff is null and void. The defendants No.1 to 3 filed an application for correction of the revenue records on the basis of the decree passed by the trial Court. The said decree is binding on the revenue authorities. An additional statement was made in the written statement. It was pleaded that the defendants No.1 to 3 have already made a complaint against the Patwari to the District Vigilance Officer, Lokayukt, Collector Katni, Jabalpur and the said inquiry is pending. The written statement was amended and in the written statement, in paragraph 2(c) it was pleaded that at the time of execution of sale deed, the possession was not given voluntarily but the plaintiff has forcibly taken the possession of the land in dispute. Further, in paragraph 13-B it was pleaded that the possession of the plaintiff is illegal. It was further pleaded that in the light of Section 52 of Transfer of Property Act, the plaintiff is bound by the compromise decree arrived at in a civil suit filed by the defendants No. 1 to 3 against defendants No. 4 to 7.

7. After framing issues and recording evidence, the trial court dismissed the suit.

8. Being aggrieved by the judgment and decree passed by the trial

Court, the respondents in S.A. No.547/2011 Nasim Khan/appellant in S.A. No.660/2011 preferred an appeal. The said appeal has been partially allowed and the First Appellate Court has held that although the plaintiff has failed to prove his title over the land in dispute but since he is in settled possession of the same, therefore, he cannot be dispossessed without following due process of law.

S.A. No.547/2011

9. The counsel for the appellants in S.A. No.547/2011 has submitted that he has filed I.A. No.1705/2023, an application under Order 41 Rule 27 CPC alongwith the Khasra Panchshalas from the year 2009 onwards to show that the defendants are in possession of the land in dispute. It is submitted that settled possession has been defined by the Supreme Court in the case of Rame Gowda (Dead) By Lrs. Vs. M.Varadappa Naidu (Dead) by Lrs. And Another reported in (2004) 1 SCC 769. Since the defendants are in possession of the land in dispute, therefore, the First Appellate Court committed an error by holding that the plaintiff is in settled possession of the land in dispute and accordingly, submitted that the decree to the extent possession of the plaintiff should not have been passed and accordingly, framed the following proposed substantial questions of law:

"(i) Whether, the reversal of the finding by the first appellate court that the plaintiff is in possession of the suit land since 1993 is perverse?

(ii) Whether the possession of the plaintiff was settled, specially in view of the fact that plaintiff had knowledge that suit land in under adjudication in CS No.31A/91?

(iii) Whether on the facts and circumstances of the case the order

of the appellate court setting aside the degree of compensatory cost U/S 35(A) (2) of CPC to defendant 1 to 3 each Rs.3000/- is liable to restored?"

10. Heard the learned counsel for the appellants.

11. The defendants in their written statement have specifically admitted that the plaintiff is in possession of the land in dispute. However, it was their claim that the possession was not delivered voluntarily but it was forcibly taken by the plaintiff. In view of the aforesaid admission, the burden was on the defendants to prove that when they got the possession back and by which order? I.A.No.1705/2023 has been filed under Order 41 Rule 27 CPC alongwith the photocopies of the Khasra Panchshalas of the year 2009 till today to show that the names of the defendants have been mutated in the revenue records. In the application, it is nowhere mentioned as to why these documents were not filed before the trial Court. It is not the case of the appellants/defendants that they were not in possession of the said documents in spite of due diligence.

12. The Supreme Court in the case of State of Karnataka and Another Vs. K.C. Subramanya and Others reported in (2014) 13 SCC 468 has held that unless and until the conditions mentioned in Order 41 Rule 27 (1)(a) and (aa) CPC are fulfilled, the said application cannot be allowed and has further held as under:

"4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows:

"27. (1)(a)            *           *
   *

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) * * *"

On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will.

4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows:

"27. (1)(a)            *          *
   *

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not,

after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) * * *"

13. The Supreme Court also in the case of Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 has held as under:

"Order 41 Rule 27 CPC

36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The

parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A.

Seetharama Reddy [AIR 1963 SC 1526], Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008], Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698 :

AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601 :

AIR 1979 SC 553])

48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record

reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."

14. Even otherwise, mere mutation would not give a presumption that the defendants No.1 to 3 are in possession of the land in dispute, for the reasons that in the Khasra Panchshala, it has been mentioned that the correction has been made in the light of order dated 20.04.2009 passed by Tahsildar. The copy of the order dated 20.04.2009 has not been filed alongwith an application under Order 41 Rule 27 CPC.

15. Furthermore, it appears that the names of the defendants No.1, 2 and 3 were mutated during the pendency of the civil suit, therefore, the said mutation will not confer any independent right in favour of the defendants No.1 to 3 specifically in the light of the admission made by the defendants No.1 to 3 in their written statement. Further, it is clear that the finding regarding possession is a finding of fact. In view of the admission made by the defendants No.1 to 3 in their written statement, it cannot be said that the finding recorded by the First Appellate Court with regard to the possession of the plaintiff is erroneous. Thus, I.A. No.1705/2023 is hereby rejected.

16. No other argument is advanced.

17. Under these circumstances, this Court is of the considered opinion that no substantial question of law as proposed by the appellants arises in the present appeal.

18. Accordingly, the S.A. No.547/2011 filed by the appellants Ramkaran, Ravishankar and Arvind Kumar fails and is hereby dismissed.

S.A. No.660/2011

19. This Appeal has been filed by the appellant/plaintiff Nasim Khan against the dismissal of his claim for declaration of his title.

20. It is submitted by the counsel for the appellant that the mother of the defendants No.5 to 7 had executed a sale deed in favour of the plaintiff Nasim Khan, therefore, the Courts below committed a material illegality by dismissing the claim of the appellant for declaration of his title and proposed the following substantial questions of law:

"A. Whether the Courts below were legally justified in holding that the Sale-deed Ex.P-1 is illegal and void having been executed by the Defendant/Respondent No.9 on behalf of the minor Defendant/Respondents No.5 to 7, although defendants no.4 to 7 and 9 never challenged the same by filing a counter claim or a separate suit till date but admitted the claim of the plaintiff in their written statement? B. Whether the Courts below were legally justified in holding that the suit land belonged to the Respondent/Defendant No.4 and the compromise decree Ex D-31 cannot be challenged by the Plaintiff as he was a stranger, especially when neither the Plaintiff nor his transferees were parties to the said suit and admittedly the Plaintiff was in exclusive possession of the suit lands ?

C. Whether the Courts below legally erred in not declaring the Plaintiff to be the owner of the suit lands in view of the fact that the Defendants had lost all their rights, if any, in the suit lands

in view of the provisions of Section 27 of the Limitation Act by not filing any suit for setting aside the sale-deed Ex P-1 or for recovery of possession of the suit lands from the Plaintiff who was continuously in possession of suit lands as owner thereof openly in the knowledge of the Defendants right from the date of the sale-deed Ex p-1? D. Whether the lower appellate Court legally erred in making distinction between family arrangement and partition?

E. Whether the lower appellate Court legally erred in holding that the authenticity of the entries in Khasra Ex D-5 were successfully rebutted by the Defendants?

F. Whether the findings arrived at by the Courts below are perverse being beyond the pleadings of the parties, especially the defendants?

G. Whether the Courts below made out a new case beyond the pleadings of the parties in not declaring the Plaintiff exclusive owner of the suit lands? H. Whether the lower appellate Court mis-appreciated and misapplied the provisions of Section 8 of the Hindu Succession Act, 1956?

I. Whether the Courts below legally erred in not appreciating the rights of a Karta of joint Hindu Family to affect a family arrangement?"

21. Heard the learned counsel for the appellant.

22. It is the case of the plaintiff that the mother of the defendants No.5 to 7 had executed a sale deed in his favour. Undisputedly, the defendants No.5 to 7 were minor on the date of execution of sale deed.

The following are the questions for considerations:

1. As to whether the sale without the permission of the Court as required under Section 8 of Hindu Minority and Guardianship Act is valid or not?

2. Whether during the lifetime of the father, the mother can alienate the property belonging to minor children by projecting herself to be their guardian or not?

23. Section 8 of The Hindu Minority and Guardianship Act, 1956 reads as under:

"8. Powers of natural guardian--

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,--

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by

a natural guardian, in contravention of sub-

section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular--

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in sub-

sections (2), (3) and (4) of section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-

section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section "court" means the city civil court or a district court or a court empowered under section 4A of the Guardian and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction

the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate."

24. The Supreme Court in the case of Panni Lal Vs. Rajinder Singh and Another reported in (1993) 4 SCC 38 has held that the alienation of minor's property by mother during the lifetime of her husband/father of the minor cannot be said to be a sale by a natural guardian and therefore, the sale is not merely voidable under Section 8 but void being outside the purview of the section.

25. Furthermore, according to the plaintiff, the land belonged to Baldev Prasad, who had two sons, namely; Ramkaran and Govind Prasad. The defendants No.5 to 7 are the children of Govind Prasad. Thus, it is clear that after the death of Baldev Prasad, the property would be inherited by his sons Ramkaran (defendant No.1) and Govind Prasad. The defendants No.5 to 7, who were the grand-sons of Baldev Prasad would not have any share in the property during lifetime of their father.

26. It is submitted by the counsel for the plaintiff/appellant that in fact Baldev Prasad had settled the property in dispute in favour of defendants No.5 to 7 and therefore, they had a right to alienate the property. However, the plaintiff has failed to prove that any such settlement was made by Baldev Prasad in favour of the defendants No.5 to 7. The counsel for the appellant/plaintiff has pointed out the revenue entry, Exhibit D/22, to show that it was mentioned in the said entry that as per the settlement letter, the said property has been settled in favour of the defendants No.5 to 7. However, it is well established principle of law

that a mutation entry would not create any title.

27. Furthermore, it is not the case of the plaintiff that Baldev Prasad during his lifetime had partitioned the property. There is no averment in the plaint with regard to the settlement of property. There is no ocular evidence to that effect. It is well established principle of law that any evidence in absence of pleading cannot be looked into. Thus, in order to hold that the defendants No.5 to 7 had any right in the property in dispute, this Court cannot look into the mutation entry made in Khasra, Exhibit D/22, for the simple reason that neither there is any pleading nor there is any oral evidence nor the mutation entry would create any right in favour of the beneficiary. Thus, in absence of any partition, this Court is of the considered opinion that even the plaintiff has failed to prove that the defendants No.5 to 7 had any right or title to alienate the property through their mother. Since, the alienation by the mother of the defendants No.5 to 7 was contrary to Section 8 of Hindu Minority and Guardianship Act as well as the plaintiff has failed to prove that the defendants No. 5 to 7 were owner of the property in dispute, this Court is of the considered opinion that both the Courts below did not commit any mistake by holding that the sale deed in favour of the plaintiff by the defendants No.5 to 7 would not confer any right or title on the plaintiff.

28. No other argument is advanced.

29. It is well established principle of law that this Court while exercising power under Section 100 CPC cannot interfere with the concurrent findings of fact unless and until they are shown to be perverse or based on some inadmissible evidence. No perversity could be pointed out by the counsel for the appellant.

30. The Supreme Court in the case of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 has held as under:

"35. It is worth noting that this Court in Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262 : AIR 2001 SC 1273] has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within the ambit of substantial question of law. Similar view has been stated

SCC 500] .

36. In Major Singh v. Rattan Singh [(1997) 3 SCC 546 : AIR 1997 SC 1906] it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.

37. In Vidhyadhar v. Manikrao [(1999) 3 SCC 573] it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the

jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board [(2007) 14 SCC 138 : AIR 2008 SC 956] ."

31. No substantial question of law as proposed by the appellant Nasim Khan arises in the present appeal.

32. Accordingly, the appeal fails and is hereby dismissed.

33. Ex-consequenti, the judgment and decree dated 21.03.2011 passed by 3rd Additional District Judge, (Fast Track Court) Katni in Civil Appeal No.26A/2010 is hereby affirmed.