Munna vs Sukhvindi
2023 Latest Caselaw 4210 MP

                                   1


IN    THE     HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 17th OF MARCH, 2023
              SECOND APPEAL No. 664 of 2018
BETWEEN:-
MUNNA S/O CHUNKA PATEL,
AGED ABOUT 65 YEARS, R/O
VILLAGE   BHITARI, TAHSIL
RAMNAGAR DISTRICT SATNA
(MADHYA PRADESH)
                                                       .....APPELLANT
(BY MS. SANJNA SAHNI - ADVOCATE )
AND
1.   SUKHVINDI D/O BUDDHA
     W/O   AYODHYA    PRASAD
     PATEL, AGED ABOUT 63
     YEARS,    R/O   VILLAGE
     BHITARI PANDEY TOLA,
     TAHSIL        RAMNAGAR,
     DISTRICT SATNA (MADHYA
     PRADESH)
2.   STATE     OF    MADHYA
     PRADESH THROUGH THE
     COLLECTOR        SATNA,
     DISTRICT SATNA (MADHYA
     PRADESH)
                                                    .....RESPONDENTS
(RESPONDENT NO.1 BY SHRI MAHESH PRASAD RAJAK ON CAVEAT &
RESPONDENT NO.2/STATE BY SHRI R. MATHAI - PANEL LAWYER )

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

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 31/01/2018 passed by First Additional District Judge Amarpatan, District Satna (M.P.) in Civil

Appeal No.27A/2017 arising out of judgment and decree dated 18/04/2017 passed by Second Civil Judge Class-2 Amarpatan, District Satna (M.P.) in Civil Suit No.21A/2014.

2. The appellant is the defendant. The suit filed by the respondent No.1 was dismissed by the Trial Court but the appeal has been allowed and the suit filed by the respondent No.1 has been decreed.

3. The facts necessary for disposal of the present appeal in short are that the respondent No.1 filed a suit for declaration of title, possession as well as for mesne profits pleading inter-alia that the father of the plaintiff, namely, Buddha Patel had no male child and the plaintiff/ respondent No.1 was the only child of Buddha Patel. Accordingly, the plaintiff was residing with her father along with her husband in her parental home. The plaintiff and her husband were placed in cultivating possession of the land in dispute and not only they were residing along with Buddha Patel in his house, but they were also looking after him as well as the land in dispute. Buddha Patel died about 25 years back. At the time of death of Buddha Patel, the mother of the plaintiff was also alive. However, the mother of the plaintiff, namely, Manvasiya also expired about 15 years back. Again it was clarified by the plaintiff that Buddha Patel had one male child Makole who has died issueless during the life time of Buddha Patel. After the death of Buddha Patel, the names of the mother of the plaintiff, namely Manvasiya and the plaintiff, namely, Sukhbindi were mutated in the revenue record. Manvasiya also died about 15 years back and accordingly, her name was deleted from the revenue records and as such the plaintiff is the sole bhumiswami and in possession of the land in dispute.

4. According to the plaintiff, the family tree is as under:-

Durjan Patel

Sahdev @ Sahdeuna Gaurishankar

Buddha Patel (dead) Jagdev (dead)

Ramphal (alive)

Manvasiya (widow) Sukhbindi Makole (dead) (plaintiff) (dead - issueless)

5. It is the claim of the plaintiff that the defendant No.1 does not belongs to the family of the plaintiff and therefore, he has no right or title in the land in dispute. Sahdev - the grandfather of the plaintiff had constructed a house on the ancestral land and had also planted seven Mango trees and one Mahua tree and one Well was also dug over the land in dispute. Buddha Patel resided in the said house during his life time and after his death, the plaintiff and her mother also resided in the said house. Since the plaintiff was of the view that no male child would remain alive if the family resides in the house in dispute, therefore on 06/07/1992 her husband purchased another land from Purushottam Patel for a consideration amount of Rs.5,000/- and accordingly constructed a house over it and now the plaintiff and her husband and child are residing in Village Baderaha bearing survey No.407/543 area 0.30 decimal and the ancestral house constructed on Araji No.406 is lying vacant. Since the ancestral house constructed on Araji No.406 was lying vacant, therefore the plaintiff let out the same to Ramniwas and Vishwanath on a monthly tenancy of Rs.600/- because they were

the adversely affected persons of Bansagar Project. The tenants resided in the said house continuously for three years and in the meanwhile, the Rehabilitation Officer allotted pattas to the displaced persons and Ramniwas and Vishwanath also got the patta and accordingly, they constructed their house in New Ramnagar and vacated the house in question about 10 years back and therefore the same was lying vacant. The defendant No.1 had some dispute with his cousin brother Ramkaran Patel and therefore, about three years back, he requested the plaintiff to let out the disputed house constructed on Araji No.406 and accordingly, the plaintiff let out the house in question to the defendant No.1 on monthly rent of Rs.600/-. However, for last about one year, the defendant has stopped making payment of rent. On 01/02/2014, when the defendant No.1 was getting the land demarcated, then the plaintiff objected to the Patwari for demarcation and insisted that the crop is standing, therefore the demarcation should not be done. Then she was informed by the Patwari that Araji No.406/2 is recorded in the name of defendant No.1 whereas Araji No.406/1 is recorded in the name of the plaintiff. The plaintiff immediately lodged a report and also sent a notice through her counsel on 12/03/2014. In spite of service of the notice, the defendant did not make payment of rent and also did not vacate the house and has also forcibly cultivated the crop sown by the plaintiff. Because of the political pressure, no criminal case was registered against the defendant No.1. The plaintiff also came to know that the defendant No.1 had fraudulently got his name mutated in the revenue record, as a result Araji No.406 has been bifurcated into two parts, i.e. 406/1 and 406/2. It was further claimed that neither the plaintiff nor her father or mother had executed any document of conveyance in favour of the defendant No.1 and the mutation of the

name of the defendant No.1 in the revenue records is illegal and accordingly, the suit was filed for declaration of title, possession and mesne profits.

6. The defendant No.1 filed his written statement and claimed that Sahdev had two children, namely Vansha Patel and Buddha Patel. The plaintiff has filed a wrong family tree. The defendant No.1 represents the family of Vansha Patel whereas the plaintiff represents the family of Buddha Patel. Since the property is ancestral property of Sahdev, i.e. father of Vansha and Buddha, therefore the defendant No.1 is having half share in the land in dispute, whereas the plaintiff and her mother have half share in the remaining land.

7. Thus, the case of the defendant No.1 was that being the legal representative of Sahdev, he has half share in the property of Sahdev. Whereas, it is the case of the plaintiff that she is the sole surviving legal heir of Sahdev, therefore she is entitled for the entire property.

8. The Trial Court after framing issues and recording evidence dismissed the suit filed by the plaintiff but did not address to the question as to whether the defendant No.1 is the legal heir of Sahdev being great grandson of Sahdev or not?

9. The plaintiff/ respondent No.1 preferred an appeal which has been allowed by the First Appellate Court by specifically deciding that Sahdev had only one son, namely Buddha Patel and the defendant No.1 has failed to prove that Vansha was another son of Sahdev.

10. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the counsel for the appellant that the First Appellate Court erred in law in holding that Vansha Patel was not

the son of Sahdev and proposed the following substantial questions of law:-

"1. Whether, the learned lower appellate court is legally and justifidely reversing the finding of learned trial court which was based on proper appreciation of law and facts?

2. Whether, the learned lower appellate court is rightly allowed the appeal of respondent no.1 and illegally reversed judgment and finding of the trial court, by which mutation order dated 16.04.1976 passed by the Tahsildar was declared as illegal and void by the trial court.

3. Whether, the learned court below rightly disbelieved the sajra khandan adduced by the appellant before the court below which has been prepared by the Sarpanch Gram Panchayat Bhitari before the witnesses.

4. Whether, the lower appellate court rightly hold that respondent no.1 has not filed the suit before Rent Control Authority for the eviction of appellant on non-payment of rent and mutation passed in year 1976 and respondent no.1 has filed suit against the same in year 2014 after 40 years.

5. Whether, the learned lower appellate court is correct in holding that respondent no.1 has not made party to Vijay Kumar who purchased the part area 35 dismil land from the appellant on 02.04.2009.

6. Whether the respondent no.1 got ownership in the disputed land whereas her grandfather name has not been entered in the kistbandi khatauni (Ex-D/8).

7. Whether, the appellant being legal successor of late Bansha, as, being successor of first category as per sajra khandan (Ex-D/9), also was liable to be declared ½ share holder in disputed land.

8. Whether, the decree passed by lower appellate court holding the respondent no.1 as sole title and possession holder and ignoring the right and title of

appellant no.1 in the suit property is legally sustainable?"

11. Per contra, the counsel for the respondent No.1 has supported the findings recorded by the First Appellate Court and submitted that whether Vansha Patel was the son of Sahdev or not, is a pure question of fact and the same should have been addressed by the Trial Court which was not done and the First Appellate Court after properly appreciating the evidence has come to the conclusion that Vansha Patel was not the son of Sahdev or the defendant No.1 is not the great grandson of Sahdev, therefore he has no share in the property in dispute. It is submitted that the findings of facts recorded by the First Appellate Court do not suffer from any perversity, therefore the same may not be interfered under Section 100 of CPC.

12. Heard the learned counsel for the parties.

13. It is well established principle of law that the finding of fact recorded by the First Appellate Court is not to be interfered under Section 100 of CPC unless and until the same is found to be perverse or contrary to the record.

14. The Supreme Court in the case of Christopher Barla Vs. Basudev Naik (Dead) by LRs. reported in (2005) 9 SCC 207 has held as under:-

"5. Learned counsel appearing on behalf of the appellant submitted that the High Court itself noticed the fact that the onus had been wrongly placed on the plaintiff to prove his title, and that the appellate court did not even look into the evidence led by the defendant. The submission is that since both the parties had led evidence on the question as to whether in the oral partition of the year 1941 the

plot in question fell to the share of Kunu or Benudhar, the appellate court ought to have looked into the evidence adduced by both the parties and it was not justified in merely examining the evidence produced by the plaintiff and not the evidence adduced by the defendant. Having noticed this fact the High Court initially thought that the matter may have to be remanded, but on further consideration the High Court wanted to be satisfied as to whether there was any evidence adduced by the defendant, which if accepted, would have supported the case of the plaintiff. The High Court, therefore, called upon the counsel for the appellant to point out any particular evidence adduced by the defendant which would necessitate the disturbance of the finding of fact recorded by the appellate court. The High Court has further noticed the insistence of the counsel for the appellant to consider the reasoning given by the appellate court while rejecting the evidence led on behalf of the plaintiff. However, the High Court was of the view that in second appeal it was not permissible for the High Court to do so, unless the case fell within one of those categories of cases where the High Court may be justified in looking at the evidence afresh. The mere fact that on appreciation of the evidence the appellate court came to record a finding from which it may be possible to differ, was not a sufficient ground for interfering in second appeal."

15. The Supreme Court in the case of Dinesh Kumar Vs. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-

"13. A second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

14. In Ram Prasad Rajak v. Nand Kumar & Bros.

[(1998) 6 SCC 748 : AIR 1998 SC 2730], this Court held that existence of the substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether the need of the landlord was bona fide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record.

15. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law". Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the realm of jurisprudence, has been explained as under:

"A question of fact is one capable of being answered by way of demonstration--a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong."

(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC 682], at SCC p. 705, para 34.)

16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 : AIR 1976 SC 830] this Court held that whether the trial court should not have exercised its jurisdiction differently, is not a question of law or a substantial question of law and, therefore, the second appeal cannot be entertained by the High Court on this ground.

18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR 1998 SC 3063], this Court held that question of reappreciation of evidence and framing the substantial question as to whether the findings relating to the factual matrix by the court below

could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120] this Court held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was deciding the first appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.

20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC 1428] this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. The Court observed as under: (SCC pp. 637-38, para 6) "6. ... While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter--it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669] this Court reiterated the principle that interference in the second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said

view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to a substantial question of law.

24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. [Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604], Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353], Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423], Ragavendra Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ]

25. Thus, the law on the subject emerges to the effect that second appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent."

16. The Supreme Court in the case of S.R. Srinivasa and Others Vs. S. Padmavathamma reported in (2010) 5 SCC 274 has held that the High Court must exercise its power with proper care and caution by thoroughly examining the evidence led by the parties, especially when

it was not in agreement with the reasons recorded by the First Appellate Court.

17. If the facts of the present case are considered, then it is clear that the Trial Court did not consider at all the question as to whether the appellant/ defendant No.1 is the legal heir of Sahdev being his great grandson or not.

18. The counsel for the appellant was requested to point out any such finding from the judgment passed by the Trial Court, however, the counsel for the appellant has fairly conceded that no specific issue was framed by the Trial Court in this regard and no finding has been given as to whether the defendant No.1 is the legal heir of Sahdev being his great grandson or not.

19. The Trial Court in paragraph 17 of its judgment has held that although the appellant/ defendant No.1 had claimed that Vansha was his maternal grandfather but he has not filed any document to show that the father of the Vansha was Sahdev.

20. The Trial Court has also referred to the evidence of Bandi Patel (DW-4) who claimed that her father Vansha was the son of Sahdev but she fairly admitted that she has not seen her father and she was told by her uncle that the name of her father was Vansha.

21. Narmada Patel (DW-1) has stated that Sahdev had two sons, Vansha and Buddha but he fairly conceded that he has never seen Vansha. Kodu Patel (DW-2) was not in position to narrate the date of death of Vansha.

22. The Trial Court in paragraph 30 of its judgment has come to a conclusion that there is nothing on record to show that when and how

Sahdev got the land in dispute, whereas from the khasra panchshala of the year 1958-59, it is clear that the name of father of the appellant/ defendant No.1, namely Chunka was recorded and it has not been clarified by the parties that how the name of Buddha was recorded in the subsequent khasra panchshalas and accordingly, it was observed that on the basis of the evidence which has come on record, it is not necessary to consider the family tree and other facts in detail.

23. Thus, the Trial Court was of the view that since in the khasra panchshala of the year 1958-59, the name of the father of the appellant / defendant No.1 was recorded in the revenue record, therefore the plaintiff has failed to prove the source of her title and she cannot be declared to be the owner of the disputed property merely on the basis of mutation entries. Thus, it was held that the plaintiff has failed to prove that she is the owner of Araji No.406/2. It was further held that in the khasra panchshala of the years 1992-96 to 1996-97, Ex.-P/5 and Ex.-D/6 and D/7, it is clear that the name of the defendant No.1/ appellant is recorded in respect of Araji No.406/2, therefore the plaintiff has failed to prove that she is the owner of Araji No.406/2 as well as of the house constructed over the said land and trees situated in Araji No.406/2.

24. If the judgment pronounced by the Trial Court is considered, then it is clear that on one hand the Trial Court has held that the title of a person cannot be declared on the basis of mutation entries, but at the same time, the Trial Court has held that because of mutation of name of the appellant/ defendant No.1 in the khasra panchshala of the year 1992-96 to 1996-97, Ex.-P/5, Ex.-D/6 and D/7, the plaintiff has failed to prove her title over the land in dispute. Thus, it is clear that the Trial

Court itself has given self-contradictory reasons for dismissing the suit.

25. The First Appellate Court has considered this aspect in detail. The First Appellate Court has held that the defendant No.1/ appellant has not filed any document to show that Vansha was the son of Sahdev and has also not filed any document that his mother Bandi was the daughter of Vansha. The defendant No.1 has produced the family tree, Ex.-D/9, which is written on a plain paper purportedly signed by Sarpanch and witnesses but the defendant has not examined the aforesaid Sarpanch and the witnesses who had attested the family tree, Ex.-D/9.

26. Kodulal Patel (DW-2) is the witness who has signed the family tree, Ex.-D/9, but he has not said anything about the execution of the family tree, Ex.-D/9. The evidence of Kodulal Patel (DW-2) has been considered by the First Appellate Court in detail. Kodulal Patel was aged about 80 years as mentioned in his affidavit under Order 18 Rule 4 of CPC. Kodulal Patel (DW-2) had admitted that he had never seen Vansha and he is not aware of the date of the death of Vansha but he claimed that he has seen Sahdev and had claimed that Sahdev had expired after the marriage of this witness. Accordingly, the First Appellate Court was of the view that Kodulal Patel (DW-2) had not seen Vansha. Kodulal Patel (DW-2) was aged about 80 years in the year 2016 and has stated that Bandi (mother of the appellant) was also born in the same year. Thus, it was held that in the year 2016 when the affidavits were filed, Kodulal Patel (DW-2) was aged about 80 years whereas Bandi (DW-4) has claimed that her age is 60 years. Bandi (DW-4) has also stated that her age is similar to that of Narmada and Kodulal and again admitted that she is also aged about 80 years.

Narmada Patel (DW-1) has also been examined and his age is mentioned as 85 years. The First Appellate Court had also considered the evidence of the parties after ascertaining their ages. The First Appellate Court after considering the evidence of the parties and their ages came to the conclusion that the defendant No.1/ appellant shifted to Village Bhitari about 3 to 4 years prior to institution of the suit whereas the witnesses have claimed that the defendant No.1/ appellant is residing in the Village Bhitari for the last 20 years. Thus, it was held that there is a serious dispute as to when the appellant/ defendant No.1 shifted to Village Bhitari, therefore the evidence of the witnesses was rejected that he has shifted to Village Bhitari about 20 years back.

27. Narmada Prasad (DW-1) and Kodulal (DW-2) have admitted that a police report was lodged against them with regard to theft of crop and they were prosecuted. Thus, the First Appellate Court also came to the conclusion that Narmada Prasad (DW-1) and Kodulal (DW-2) are hand in glove with appellant and they have enmity with the plaintiff and her husband and accordingly, it was held that the evidence of Narmada Prasad (DW-1) and Kodulal (DW-2) cannot be accepted.

28. The First Appellate Court has also held that the witnesses have failed to prove the year of birth of Bandi or Vansha or Sahdev and they have deliberately suppressed the year of death of Vansha and Sahdev.

29. The counsel for the appellant could not point out any perversity in the findings recorded by the First Appellate Court. It is clear that the Trial Court did not address to the question as to whether the appellant/ defendant No.1 is the legal heir of Sahdev being his great grandson. In view of the fact that the appellant has failed to prove that he was grandson of Vansha and even has failed to prove that Vansha was son

of Sahdev, it is clear that the appellant/ defendant No.1 has failed to prove that he had one-half share in the land in dispute.

30. So far as the title of Sahdev is concerned, the name of Sahdev was recorded in the revenue record starting from the year 1925 to 1945 which is evident from Ex.-P/1. The plaintiff has also produced khasra panchshala of the year 1963-64 to 1976-77, Ex.-P/13 to P/18, to show that the name of Buddha was recorded in the revenue records. Thus, it is clear that earlier the name of Sahdev was recorded in the revenue records, however in the khasra panchshala of the year 1958-59, the name of Chunka Patel was recorded. No document has been filed by the defendant No.1/ appellant to prove that on what basis the name of his father was recorded in the revenue record of the year 1958-59. No document has been filed by the appellant to show that even subsequent to year 1958-59, the name of father of the appellant, namely Chunka continued in the revenue record. Thus, it appears that in order to take advantage of the provisions of M.P.L.R. Code, the father of the appellant got his name recorded in the revenue record in a clandestine manner to claim the rights of the bhumiswami.

31. Under these circumstances, this Court is of the considered opinion that the First Appellate Court did not commit any mistake by holding that the appellant is not a legal heir of Sahdev as he is not his great grandson and the plaintiff has succeeded to prove that she is the owner of khasra No.406/2 area 2.18 acres as well as the house constructed over it and mutation of the name of the appellant/ defendant No.1- Munna in the revenue record by order dated 16/04/1976 was also held to be null and void. Accordingly, the First Appellate Court was also right in granting a decree of possession in

favour of the plaintiff/ respondent No.1.

32. As no substantial question of law arises in the present appeal, accordingly, this Court is of the considered opinion that the appeal sans merits.

33. As a consequence thereof, the judgment and decree dated 31/01/2018 passed by First Additional District Judge Amarpatan, District Satna (M.P.) in Civil Appeal No.27A/2017, is hereby affirmed.

34. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.03.21 14:20:03 +05'30'