Ramlal vs Ajudyabai
2023 Latest Caselaw 19661 MP

Madhya Pradesh High Court

Ramlal vs Ajudyabai on 24 November, 2023

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                                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 24th OF NOVEMBER, 2023

              SECOND APPEAL No. 781 of 2022

BETWEEN:-
RAMLAL S/O SHOBHARAM LOHAR, AGED ABOUT 73 YEARS,
R/O VILLAGE KATARGANV TEHISL MAHESHWAR (MADHYA
PRADESH)
                                    .....APPELLANT/DEFENDANT
(SHRI KAMAL KISHORE KAUSHAL, ADVOCATE FOR APPELLANT)

AND
   AJUDYABAI D/O SHOBHARAM, AGED ABOUT 72 YEARS, R/O
1. SIDDHESHWAR COLONY BEHIND OF HANSA LAJ, JHABUA
   (MADHYA PRADESH)
   URMILABAI D/O SHOBHARAM W/O MOTILAL LOHAR, AGED
2. ABOUT 62 YEARS, VILLAGE KAVDIA, TEH. MAHESHWAR
   (MADHYA PRADESH)
   BASUBAI D/O SHOBHARAM W/O SUKHDEV LOHAR, AGED
3. ABOUT 57 YEARS, MAHATMA DIST. KHARGONE. (MADHYA
   PRADESH)
   COLLECTOR / DISTRICT MAGISTRATE COLLECTOR OFFICE
4.
   DIST. KHARGONE (MADHYA PRADESH)
                               .....RESPONDENTS/PLAINTIFFS
(SHRI MAYANK       MISHRA,    ADVOCATE      FOR    RESPONDENT
NO.4/STATE)
      This appeal coming on for admission this day, the court
passed the following:

                           ORDER

This second appeal has been filed by the appellant/defendant under Section 100 of Code of Civil Procedure, 1908, against the

judgment and decree dated 31.01.2022 passed by Principal District Judge, Mandleshwar (MP) in Regular Civil Appeal No.07/2014, whereby the learned Judge has upheld the findings and confirmed the judgment and decree passed by learned Civil Judge, Class-2, Maheshwar in Civil Suit No.114-A/2010 on 30.06.2014 decreeing the suit filed by respondents/plaintiffs.

(2) The brief facts of the case are that respondents/plaintiffs filed a suit for partition and delivery of possession on the ground that suit properties are ancestral property of the plaintiffs/defendants No.1 and plaintiffs/defendants No.1 are real sisters and brothers and as the suit property is ancestral, therefore, plaintiffs are entitled to 1/4 to 1/4 share in the suit properties.

(3) Learned trial Court vide judgment dated 30.06.2014 passed in RCS No.114-A/2010 decreed the suit filed by plaintiffs and appeal against this judgment filed by appellant/defendant was dismissed by Principle Judge, West Nimar (Mandleshwar) vide judgment dated 31.01.2022 passed in RCA No.07/2014. Against this, appellant/defendant has filed the present second appeal.

(4) Learned counsel for the appellant/defendant has submitted that appellate court has wrongly dismissed the application under Order 41 Rule 27 CPC. The plaintiffs suit was barred by limitation as plaintiffs father expired on 24.01.1994 and the present suit was filed on 01.02.2010 and in between above period, plaintiffs never initiated any proceedings for partition and delivery of possession of suit property. The appellant/defendant is in possession of the suit property. Learned courts below have wrongly held the suit

within limitation. Hence substantial questions of law as mentioned in the appeal memo arise for determination of this Court and appeal be admitted for final hearing.

(5) I have heard counsel for the appellant/defendant and have perused the records of Courts below.

(6) It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. plaintiffs suit was decreed and appeal filed by the appellant/defendant against this judgment was dismissed.

(7) 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".

(8) 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 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".

(9) 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".

(10) A perusal of the pleadings of parties and evidence adduced by the parties, reveals that admittedly plaintiffs and appellant/defendant are real sisters and brother and suit property is ancestral property and after the death of father - Shobharam, the suit property was mutated in the name of plaintiffs as well as appellant/defendant. Hence in view of above, it cannot be said that plaintiffs did not have any right or title in the suit property. In view of above and pleadings in the plaint, it cannot be said that the suit

was time barred. In the instant case, suit property will be deemed to be in joint possession of the parties.

(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 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 plaintiffs 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 Arun/-

ARUN

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=d5b56e3de75e7828ced1a96bc4f01804c3ea1f0a

NAIR 5497e4019e41c0a82cbabbf0, postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC004DD8FF22B3F2FF C3D1EF75981FCBEF3B2B76823F270F7, cn=ARUN NAIR Date: 2023.11.27 13:54:07 +05'30'