Shivraj Yadav vs Dheeraj
2023 Latest Caselaw 1609 MP

                                                          1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                             ON THE 30 th OF JANUARY, 2023
                                            SECOND APPEAL No. 2598 of 2019

                           BETWEEN:-
                           1.    SHIVRAJ YADAV S/O LATE BANDU YADAV, AGED
                                 ABOUT 38 YEARS, R/O VILLAGE KOLGAWAN TEH.
                                 RAGHURAJ NAGAR, DISTRICT SATNA (MADHYA
                                 PRADESH)

                           2.    JAIRAJ YADAV S/O LATE BANDU YADAV, AGED
                                 ABOUT 41 YEARS, R/O VILLAGE KOLGAWAN
                                 TEHSIL RAGHURAJ NAGAR, DISTRICT SATNA
                                 (MADHYA PRADESH)

                           3.    MAYA YADAV D/O LATE BANDU YADAV, AGED
                                 ABOUT 40 YEARS, VILLAGE KOLGAWAN TEHSIL
                                 RAGHURAJ NAGAR (MADHYA PRADESH)

                           4.    SANTOSH YADAV S/O LATE BANDU YADAV, AGED
                                 ABOUT 30 YEARS, R/O VILLAGE KOLGAWAN,
                                 TEHSIL RAGHURAJ NAGAR, DISTRICT SATNA
                                 (MADHYA PRADESH)

                                                                                     .....APPELLANT
                           (BY SHRI M. SHAFIQULLAH- ADVOCATE)

                           AND
                           1.    DHEERAJ S/O KHELAIYYA, AGED ABOUT 50
                                 YEARS, R/O VILLAGE PANNA, TEH. UNCHEHARA,
                                 DISTRICT SATNA (MADHYA PRADESH)

                           2.    THE STATE OF MADHYA PRADESH THROUGH
                                 COLLECTOR SATNA (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                           (BY MS. PAPIYA GHOSH- PANEL LAWYER FOR RESPONDENT NO.
                           2/STATE)

                                 This appeal coming on for admission this day, th e court passed the

Signature Not Verified
                           following:
Signed by: ASHISH KUMAR
LILHARE
Signing time: 31-01-2023
17:59:18
                                                                 2
                                                               JUDGMENT

This Second Appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 21.06.2019 passed by 1st Additional District Judge, Nagod, District Satna in Civil Appeal No. 35/2015 arising out of judgment and decree dated 30.06.2015 passed by Civil Judge Class-II, Unchehara, District Satna in Civil Suit No. 4A/2012.

2. The undisputed fact is that Babbu Aheer is the owner of the property in dispute.

3. It is the case of the appellants that Babbu Aheer was survived by his son of Bandu Yadav who remained in cultivating possession of the land in

dispute and after the death of Bandu Yadav, the plaintiffs are in cultivating possession of the land in dispute. However, the defendant No. 1 without any right and title has got his name recorded in the revenue records and has disputed the title of the plaintiffs and accordingly, the suit for declaration of title and permanent injunction was filed.

4. The defendant No. 1 filed his written statement and claimed that Babbu Aheer was the owner of the land in dispute. By unregistered sale deed dated 15.06.1962, he sold the said land to Khelaiyya Chamar for a consideration amount of Rs. 70/- and accordingly, the name of Khelaiyya Chamar was mutated in the revenue records. After the death of Khelaiyya Chamar, the defendant No. 1 is in possession of the same being the son of Khelaiyya Chamar. It was further claimed that the plaintiffs were never in possession of the land in dispute and they are residing in Kolgawan, District Satna from the year 1962 and accordingly, a false suit has been filed.

5. The trial Court after framing issues and recording evidence of the parties, decreed the suit.

Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 31-01-2023 17:59:18

6. The respondent No. 1 being aggrieved by the judgment and decreed passed by the trial Court preferred an appeal which has been allowed by the First Appellate Court and the suit filed by the appellants has been dismissed.

7. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the counsel for the appellants that the First Appellate Court has wrongly believed Ex-D/26 by which the defendant No. 1 had claimed that the property was alienated by Babbu Aheer to Khelaiyya Chamar and accordingly, proposed the following substantial questions of law:-

"A. Whether the Learned Lower Appellate Court rightly reversed the decree of the trial Court. By accepted the document Ex-D-26 is executed by one Babbu Aheer in favour of the Khelaiyya. As per Section 90 of the Evidence Act. In absence of any endorsement that the contention of the same has been read over and explain to the executor. When the executor is an illiterate person.

B. Whether the Learned Lower Appellate Court rightly reversed the decree of the trial court on the basis of exhibited D-26 executed in the year 1962. By accepting it under section 90 of the Evidence Act. when the act of the respondents/defendants father as well as the defendants is

shows that the document is forged one. As they have not acted upon it during the life time of Babbu Aheer.

C. Whether the Learned Lower Appellate Court committed illegality by misconstrue the provision of section 109 of M.P.L.R.C. As the name of the Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 31-01-2023 17:59:18

respondents/defendants has not been mutated in the Revenue Record after following the due procedure."

8. Heard learned counsel for the appellants.

9. The defendant had examined Dayaram (D.W.-2) who was one of the attesting witness of the sale deed Ex.-D/26. In para 5 of his cross examination Dayaram (D.W.-2) has claimed that no Kachi receipt was written in his favour. In paragraph 6 he denied that no transaction of Rs.70/- had taken place in his presence. He specifically claimed that the transaction had taken place in his presence and he has put his thumb impression and Dashrath Singh has also signed the same. Chotelal (D.W-3) is the son of another attesting witness Dashrath Singh, who has identified the signatures of his father.

10. Furthermore, the Ex.D/26 is more than 30 years old and, therefore, under Section 90 of the Evidence Act, the execution of the said document can be presumed and contents of the documents can be presumed. The defendant has examined Chotelal (D.W.-3) who has identified the signatures of his father Dashrath and has also examined Dayaram who was the attesting witness of the unregistered sale deed dated 15.06.1962.

11. It is well established principle of law that this Court while exercising the power under Section 100 of C.P.C. cannot interfere with the findings of facts unless and until they are based on misleading of evidence or perverse or based on some inadmissible evidence.

12. The Supreme Court in the case of Vishwanath Agrawal, S/o Sitaram 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 Signature Not Verified Kaur v. Gurdial Singh Mann has held that while it is true Signed by: ASHISH KUMAR LILHARE Signing time: 31-01-2023 17:59:18

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 in Govindaraju v. Mariamman.

36. In Major Singh v. Rattan Singh 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 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.

13. No perversity could be pointed out by the counsel for the appellants. Accordingly, no substantial question of law arises in the present appeal.

1 4 . As a consequence thereof, the judgment and decree dated 21.06.2019 passed by 1st Additional District Judge, Nagod, District Satna in Civil Appeal No. 35/2015 is hereby affirmed.

15. The appeal fails and is hereby dismissed in limine.

(G.S. AHLUWALIA) JUDGE ashish Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 31-01-2023 17:59:18

Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 31-01-2023 17:59:18