Fakira vs Sarlabai
2023 Latest Caselaw 18780 MP

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         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. 1329 of 2022

BETWEEN:-
FAKIRA S/O GANPAT, AGED ABOUT 75 YEARS, GRAM BORANWA,
TEHSIL KASRAWAD, DISTRICT-KHARGONE (MADHYA PRADESH)
                                                                                .....APPELLANT
(SHRI MUKESH                KUMAR         TARE,      LEARNED           COUNSEL          FOR       THE
APPELLANT)

AND
1. SARLABAI W/O FAKIRA, AGED ABOUT 69 YEARS, GRAM BORANWA,
   TEHSIL KASRAWAD, DISTRICT-KHARGONE (MADHYA PRADESH)
2. LAXMIBAI D/O GANPAT, AGED ABOUT 73 YEARS, GRAM BORANWA
   TEHSIL-KASRAWAD, DISTRICT-KHARGONE (MADHYA PRADESH)
3. THE STATE OF MADHYA PRADESH THROUGH COLLECTOR,
   KHARGONE (MADHYA PRADESH)
                                                                           .....RESPONDENTS

(SHRI MAYANK MISHRA, PANEL LAWYER APPEARING ON BEHALF OF
ADVOCATE GENERAL)

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

This second appeal has been filed by the appellant/defendant No.1 being aggrieved by judgment and decree dated 05.03.2022 passed by 1 st

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District Judge, West Niman, Mandleshwar in RCA No.49/2019 whereby the first appellate court has upheld the decree and judgment dated 23.10.2019 passed by Civil Judge, Class-II, Kasrawad, Mandleshwar in RCS -A 40/2018.

02. Brief facts of the case are that respondent No.1/plaintiff filed a suit for declaration of title and permanent injunction on the ground that defendant Nos.1 and 2 are real brother and sister and plaintiff is wife of defendant No.1. Disputed property was given to plaintiff as per compromise dated 20.10.1989 arrived at in maintenance proceedings. Therefore, on the basis of aforesaid compromise, plaintiff is owner of disputed property.

03. Learned counsel for the appellant/defendant No.1 has submitted that disputed property is parental/ancestral property and it was given to plaintiff for maintenance during her life time. Therefore, plaintiff is not absolute owner of the suit property. Present suit is barred by limitation and courts below have wrongly held the suit within limitation. In this connection, learned counsel for the appellant/defendant No.1 has referred to para Nos.20 and 21 of plaintiff- Sarlabai's testimony and he has also referred to Ex.D-5. As suit property was given to plaintiff only for maintenance 25-30 years ago and in view of Ex.D-5 and para Nos.20 and 21, plaintiff -Sarlabai's testimony, cause of action of right to sue arose before 25-30 years ago and, therefore, present suit is barred by limitation. Learned courts below have not taken into consideration above facts and testimony and have wrongly held that suit is within limitation. Hence, substantial question of law as mentioned in the appeal memo arise for determination and appeal be admitted for final hearing.

04. I have heard learned counsel for the appellant/defendant No.1 and

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perused the records of Courts below.

05. It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. trial court decreed the suit filed by plaintiff and appeal filed by defendant No.1/appellant has been dismissed.

06. 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".

07. 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

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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".

08. 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

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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

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of on 24.9.1985".

09. I have gone through the pleadings of parties as well as evidence adduced by the parties. Admittedly, suit property was given to plaintiff as per compromise (Ex.P-3/Ex.P-4). Perusal of above documents reveals that therein, it is not mentioned anywhere that property is being given to plaintiff for maintenance during her life time and after her death, property will devolve/revert back to the defendant No.1/appellant-Fakira. Therefore, it cannot be said, even prima facie that plaintiff/respondent- Sarlabai is limited owner of suit property. Further, in view of pleadings in paras 7, 8 and 9, it cannot be said that present suit is barred by limitation. Further, admittedly, plaintiff is in possession of suit property. Hence, it cannot be said that plaintiff's suit is barred by limitation.

10. 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.

11. 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/defendant has failed to show that how

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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.

12. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of plaintiff are fully justified by the evidence on record. Concurrent findings recorded by the Courts below are not based on misreading or mis- appreciation 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.

13. A copy of this order along with record be sent back to the courts below for information and its compliance.

(ACHAL KUMAR PALIWAL ) JUDGE N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2023.11.09 15:55:39 +05'30'