Deceased Chander Singh Through ... vs Lal Singh
2023 Latest Caselaw 18778 MP

                          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 7th OF NOVEMBER, 2023

            SECOND APPEAL No. 665 of 2022

BETWEEN:-
   DECEASED CHANDER SINGH THROUGH LRS. THAANUNWAR
1. BAI W/O CHANDER SINGH OCCUPATION: HOUSEHOLD
   VILLAGE RAGHOGARH TEHISL AGAR (MADHYA PRADESH)
   CHANDER SINGH (DECEASED) THR LRS RAMLAL S/O
2. CHANDER SINGH OCCUPATION: AGRICULTURE VILLAGE
   RAGHOGARH, TEHSIL AGAR (MADHYA PRADESH)
   CHANDER SINGH (DECEASED) THR LRS KARAN SINGH S/O
3. CHANDER SINGH OCCUPATION: AGRICULTURE VILLAGE
   RAGHOGARH, TEHSIL AGAR (MADHYA PRADESH)
   CHANDER SINGH (DECEASED) THR LRS GUMAAN SINGH S/O
4. CHANDER SINGH OCCUPATION: AGRICULTURE VILLAGE
   RAGHOGARH TEHISL AGAR (MADHYA PRADESH)
   CHANDER SINGH (DECEASED) THR LRS DHUL SINGH S/O
   MAADHU SINGH, AGED ABOUT 50 YEARS, OCCUPATION:
5.
   AGRICULTURE VILLAGE RAGHOGARH TEHISL AGAR
   (MADHYA PRADESH)
   CHANDER SINGH (DECEASED) THR LRS BHAGWA SINGH
   (BHAGWAN SINGH) S/O MAADHU SINGH, AGED ABOUT 45
6.
   YEARS,    OCCUPATION:    AGRICULTURE     VILLAGE
   RAGHOGARH TEHISL AGAR (MADHYA PRADESH)
                                      .....APPELLANTS
(MR. BALDEEP SINGH GANDHI, ADVOCATE FOR APPELLANTS)

AND
   LAL SINGH S/O RAM SINGH, AGED ABOUT 45 YEARS,
1. OCCUPATION: AGRICULTURE R/O PAAN BIHAR, TEHSIL
   UJJAIN (MADHYA PRADESH)
2. GANGARAM S/O RAM SINGH, AGED ABOUT 40 YEARS,
   OCCUPATION: AGRICULTURE VILLAGE RAGHOGARH AT
   PRESENT R/O PAAN BIHAR TEHSIL UJJAIN (MADHYA
                           2

   PRADESH)
   KANCHAN BAI W/O RAM SINGH, AGED ABOUT 70 YEARS,
   OCCUPATION: HOUSEHOLD VILLAGE RAGHOGARH AT
3.
   PRESENT R/O PAAN BIHAR TEHSIL UJJAIN (MADHYA
   PRADESH)
   TEJA BAI W/O KALU SINGH OCCUPATION: HOUSEHOLD
4. VILLAGE     TEJLAKHEDI   TEHSIL TARANA (MADHYA
   PRADESH)
   GOKUL SINGH S/O NATHU SINGH, AGED ABOUT 40 YEARS,
5. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
   MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
   GOPAL SINGH S/O NATHU SINGH, AGED ABOUT 40 YEARS,
6. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
   MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
   NARAYAN SINGH S/O NAG SINGH, AGED ABOUT 50 YEARS,
7. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
   MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
   SHYAM SINGH S/O NAG SINGH, AGED ABOUT 35 YEARS,
8. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
   MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
   SIDDHU SINGH S/O HARI SINGH, AGED ABOUT 55 YEARS,
9. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
   MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
    BADRI SINGH S/O HARI SINGH, AGED ABOUT 52 YEARS,
10. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
    MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
    BUDDHI BAI D/O HARI SINGH OCCUPATION: AGRICULTURE
11. VILLAGE GHONSLA, TEHSIL MAHIDPUR DIST UJJAIN
    (MADHYA PRADESH)
    GUDDI BAI D/O HARI SINGH, AGED ABOUT 40 YEARS,
12. OCCUPATION: AGRICULTURE VILLAGE GHONSLA, TEHSIL
    MAHIDPUR DIST UJJAIN (MADHYA PRADESH)
    HARIRAM S/O JAIRAM JAAT OCCUPATION: AGRICULTURE
13. VILLAGE GHONSLA, TEHSIL MAHIDPUR DIST UJJAIN
    (MADHYA PRADESH)
    PAPPU    SINGH   S/O   BABU   SINGH    OCCUPATION:
14. AGRICULTURE VILLAGE KAROHAN TEHSIL AND DISTRICT
    UJJAIN (MADHYA PRADESH)
     STATE OF MADHYA PRADESH THROUGH COLLECTOR
15.
     SHAJAPUR (MADHYA PRADESH)
    SOHAN BAI W/O GOKUL SINGH OCCUPATION: HOUSEHOLD
16.
    VILLAGE RAGHOGARH TEHISL AGAR (MADHYA PRADESH)
                                     .....RESPONDENTS
                                    3

(NONE FOR THE RESPONDENTS)
      This appeal coming on for admission this day, the court
passed the following:

                            ORDER

This second appeal has been filed by the appellants/plaintiffs under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 21.12.2021 passed by second District Judge, Agar, District - Shajapur (MP) in Regular Civil Appeal No.100023/2015, affirming the judgment and decree dated 16.04.2015 passed by Additional Civil Judge, Class-II, Agar, District - Shajapur, passed in Civil Suit No.8-A/2012, whereby suit filed by appellants/plaintiffs for declaration of title and permanent injunction against respondents/defendants was dismissed.

(2) The brief facts of the case are that appellants/plaintiffs filed a suit for declaration of title and permanent injunction on the ground that suit properties were jointly owned by plaintiffs and defendant No.6 and they filed an application under Section 178 of Madhya Pradesh Land Revenue Code, 1959 (for short 'MPLRC') for partition and it was stated therein that parties have partitioned the suit property twenty years ago, therefore, now the same may also be reflected in the revenue papers. Parties are in possession of suit property as per oral partition effected twenty years ago and plaintiffs have also sought relief of declaring the sale deed dated 02.11.2011 void and not binding on plaintiffs.

(3) Learned counsel for the appellants/plaintiffs submitted that

the courts below have not properly appreciated the evidence on record and have drawn wrong conclusions and conclusions drawn by courts below are against the evidence on record. The appellate court also erred in dismissing the applications filed under Order 41 Rule 27 of CPC. Therefore, substantial questions of law as mentioned in the appeal memo arise for determination of this Court. Therefore, this appeal be admitted for final hearing.

(4) I have heard learned counsel for the appellants/plaintiffs and have perused the records of Courts below.

(5) 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 appellants/plaintiffs.

(6) 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".

(7) Similarly in the case of Gurnam Singh (Dead) by legal representatives and Others vs. Lehna Singh (Dead) by legal representatives reported in (2019) Vol.7 SCC 641, 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".

(8) 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".

(9) I have gone through the pleadings of the parties and evidence adduced by the parties and if 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.

(10) 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 appellants/plaintiffs 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.

(11) For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of defendants 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.

(12) 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 Digitally signed by ARUN NAIR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=d5b56e3de75e7828ced1a96 bc4f01804c3ea1f0a5497e4019e41c0a

NAIR 82cbabbf0, postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC0 04DD8FF22B3F2FFC3D1EF75981FCBE F3B2B76823F270F7, cn=ARUN NAIR Date: 2023.11.08 17:59:30 +05'30'