Madhya Pradesh High Court
Ramgopal vs Ramnarayan on 10 October, 2023
Author: 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
SECOND APPEAL No. 829 of 2021
BETWEEN:-
RAMGOPAL S/O MANGILAL PATIDAR, AGED ABOUT 65 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEH. BHANPURA,
DISTRICT-MANDSAUR (MADHYA PRADESH)
.....APPELLANT
(SHRI SUNIL JAIN - LEARNED SENIOR ADVOCATE WITH SHRI KUNJAN
MITTAL - ADVOCATE FOR APPELLANT)
AND
1. RAMNARAYAN S/O BHUVANIRAM PATIDAR, AGED ABOUT 72 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEH. BHANPURA,
DISTRICT-MANDSAUR (MADHYA PRADESH)
2. RAMCHANDRA S/O SHANKARLAL PATIDAR, AGED ABOUT 62 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEH. BHANPURA,
DISTRICT-MANDSAUR (MADHYA PRADESH)
3. HIRALAL S/O MANGILAL PATIDAR, AGED ABOUT 47 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEH. BHANPURA,
DISTRICT-MANDSAUR (MADHYA PRADESH)
4. BALMUKAN S/O MANGILAL PATIDAR, AGED ABOUT 42 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEHSIL
BHANPURA, DISTRICT-MANDSAUR (MADHYA PRADESH)
5. STATE OF M.P. THR COLLECTOR MANDSAUR (MADHYA PRADESH)
6. SHANKARLAL S/O NANDRAM PATIDAR, AGED ABOUT 57 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEHSIL
BHANPURA, DISTRICT-MANDSAUR (MADHYA PRADESH)
7. ARPIT KUMAR S/O RISHABH JAIN, AGED ABOUT 27 YEARS,
OCCUPATION: AGRICULTURE BHAWANIMANDI TEHSIL
BHAWANIMANDI JILA JHALAWAR (RAJASTHAN)
8. PREMBAI D/O MANGILAL PATIDAR, AGED ABOUT 57 YEARS,
--2--
OCCUPATION: HOUSEWIFE GRAM BHENSODA, TEH. BHANPURA
JILA MANDSAUR PRESENT R/O GRAM BARDIYA AMRA TEHSIL
GAROTH JILA MANDSAUR (MADHYA PRADESH)
9. SUMANBAI D/O MANGILAL PATIDAR, AGED ABOUT 54 YEARS,
OCCUPATION: AGRICULTURE GRAM BHENSODA, TEHSIL
BHANPURA, DISTRICT-MANDSAUR (MADHYA PRADESH)
10 RADHABAI D/O MANGILAL PATIDAR, AGED ABOUT 43 YEARS,
OCCUPATION: HOUSEWIFE GRAM BHENSODA, TEHSIL BHANPURA,
DISTRICT-MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BALDEEP SINGH GANDHI - ADVOCATE FOR RESPONDENT NO.10)
RESERVED ON : 05.10.2023
PRONOUNCED ON : 10.10.2023
This appeal coming on for orders this day, the court passed the
following:
JUDGEMENT
This second appeal has been filed by the appellant being aggrieved
by the judgment and decree dated 19.03.2021 passed in RCA No.08/2019
by Additional District Judge, Bhanpura, District-Mandsaur whereby the
first appellate court has upheld the decree and judgment passed by Civil
Judge, Class-I, Bhanpura, District-Mandsaur in Civil Suit No.70A/2011.
02. Briefly, facts of the case are that appellant/plaintiff filed a suit for
partition, delivery of possession, declaration of title and permanent
injunction on the ground that both plaintiff and defendants belong to same
family and no partition of agricultural land etc. has taken place between
the parties mets and bounds. On account of some family arrangement,
parties are residing separately and cultivating the agricultural lands
separately.
03. Learned counsel for the appellant/plaintiff has submitted that this
--3--
second appeal has been filed on two grounds: (i) that, learned courts below
have wrongly concluded that the suit is time barred, and (ii) that, partition
had already taken place. It is also urged that properties are ancestral and
no partition by mets and bounds has taken place between the parties and
conclusions drawn by appellate court in para 25 and 26 about partition are
patently wrong. In this respect, it is also urged that in para 21 of the
judgment, the appellate court has held that no partition by meets and
bounds has taken place. Learned counsel also referring to para 36 of the
trial court's judgment, submits that conclusion with respect to suit being
time barred by learned trial court is palpably wrong and is against the
evidence on record. As per Article 65 of Limitation Act, the limitation for
recovery of possession is of 12 year. In the present case, the suit property
being joint and ancestral, presumption will be about joint possession of
land. In this connection, learned appellate court's conclusion in para 30
and 31 are also wrong. On above grounds, it is urged that the learned
courts below have committed material illegality in dismissing the appeal
and there are substantial questions of law as mentioned in the appeal
memo.
04. Learned counsel for the respondent No.2 submits that learned courts
below have rightly dismissed the suit after taking into consideration over
all evidence and pleadings of the parties, there is no illegality and
perversity in the findings of the courts below. There is concurrent finding
of facts by the courts below. It is also urged that the plaintiff has not
included all the properties for partition in the instant suit. Hence, it is
urged that there is no substantial question of law, therefore, the appeal be
dismissed.
05. I have heard learned counsel for the appellant/plaintiff and have
--4--
perused the records of Courts below.
06. 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
appellant/plaintiff.
07. 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".
08. 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
--5--
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".
09. 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
--6--
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".
--7--
10. With respect to submissions of learned counsel for appellant and
grounds taken by the appellant in appeal memo etc., I would like to briefly
refer the pleadings and evidence on record. Perusal of pleadings of both
the parties and evidence adduced by both the parties and especially para
Nos.28 to 33, 35 to 37, 39, 44, 48 and 49 of deposition of
appellant/plaintiff himself (PW-1) and para Nos.7, 8 and 11 of PW-2
clearly reveal that long time back, as per family arrangement, partition had
taken place between the parties and in this connection, conclusions drawn
by courts below cannot be said to be perverse or against evidence and it
cannot be said that they are based on no evidence.
11. Similarly, I have gone through para Nos.30 and 31 of appellate
court's judgment and para 36 of the trial court's judgment along with
pleadings and evidence on record and from above, suit appears to be time
barred and in this connection also findings of courts below cannot be said
to be perverse or without evidence.
12. 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.
13. A perusal of the impugned judgments and decree passed by the
--8--
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/plaintiff 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.
14. For the reasons aforesaid, I find no merit in the instant second
appeal. Concurrent findings recorded by the Courts below in favour of
defendant 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.
15. 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: 2023.10.10
18:35:56 +05'30'
