Mohan vs Housi Bai
2023 Latest Caselaw 17195 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 16th OF OCTOBER, 2023

              SECOND APPEAL No. 1790 of 2021

BETWEEN:-
MOHAN S/O LAKSHMAN MARATHA, AGED ABOUT 55 YEARS,
OCCUPATION: AGRICULTURIST VILL-JHIGDI TEH. BARWAH (MADHYA
PRADESH)
                                               .....APPELLANT

(SHRI RISHIRAJ TRIVEDI, LEARNED COUNSEL FOR THE APPELLANT)

AND
1. HOUSI BAI D/O LAKSHMAN, AGED ABOUT 60 YEARS, OCCUPATION:
   AGRICULTURIST SIMROL, DISTRICT-INDORE (MADHYA PRADESH)
2. MALUBAI D/O LAKSHMAN, AGED ABOUT 56 YEARS, OCCUPATION:
   AGRICULTURIST LOKNAYAK NAGAR, DHAR ROAD, DISTRICT-
   INDORE (MADHYA PRADESH)
3. PRABHAKAR S/O LAKSHMAN MARATHA, AGED ABOUT 60 YEARS,
   OCCUPATION: AGRICULTURIST SIRPUR, DHAR RAOD, DISTRICT-
   INDORE (MADHYA PRADESH)
4. GANGABAI W/O SOHANLAL MARATHA, AGED ABOUT 51 YEARS,
   OCCUPATION: AGRICULTURIST GRAM JHIGDI, TEHSIL BARWAH,
   DISTRICT-KHARGONE (MADHYA PRADESH)
5. BHEEM S/O LAKSHMAN MARATHA, AGED ABOUT 53 YEARS,
   OCCUPATION: AGRICULTURIST GRAM JHIGDI, TEHSIL BARWAH,
   DISTRICT-KHARGONE (MADHYA PRADESH)
6. RAJU S/O LAKSHMAN MARATHA, AGED ABOUT 45 YEARS,
   OCCUPATION: AGRICULTURIST ADARSH INDIRA NAGAR, DISTRICT-
   INDORE (MADHYA PRADESH)
7. STATE OF M.P. THROUGH COLLECTOR COLLECTOR OFFICE,
   DISTRICT-KHARGONE (MADHYA PRADESH)
                                            .....RESPONDENTS
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(SHRI DASHRATH GHODKE, LEARNED COUNSEL FOR THE RESPONDENT
NO.5)
___________________________________________________________

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

                                ORDER

This second appeal has been filed by the appellant being aggrieved by the judgment and decree dated 08.07.2021 passed by 3 rd Additional District Judge, Barwah, District-Mandleshwar, West Nimar in RCA No.10-A/2014 and 11-A/2014 whereby the first appellate court has upheld the decree and judgment dated 17.02.2014 passed by Civil Judge, Class-I, Barwah, West Nimar in RCS No.5-A/2011.

02. Brief facts of the case are that respondents/plaintiffs filed a suit for declaration of title and partition with respect to agricultural land as mentioned in the plaint etc. It was prayed that respondents/plaintiffs be declared owner of survey No.516/3 and it be also declared that respondents/plaintiffs have 1/7th share in the house etc.

03. Learned trial court vide judgment and decree dated 17.02.2014 declared that respondents/plaintiffs have 1/7 shares in survey No.516/3 comprising 0.928 Hectare but dismissed the suit with respect to share in house etc. Appellate court vide judgment dated 08.07.2021 passed in RCA No.11/14 & 10/14 dismissed the appeals filed by both plaintiffs and defendant-Mohan and confirmed the trial court's judgment.

04. Learned counsel for the appellant/defendant- Mohan has submitted that learned trial court has framed issue No.1 partly contrary to the pleadings/prayer clause and it is well established that if any relief is not

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claimed, then, such relief cannot be granted. Plaintiffs did not seek any relief to the effect that they have 1/7-1/7 shares in disputed agricultural land, instead, they sought a declaration to the effect that they are owner of disputed agricultural land, therefore, relief granted by the courts below could not have been granted to the respondents/plaintiffs. In this connection, learned counsel for the appellant has placed reliance upon a judgment delivered by the Apex Court in the case of Bachhaj Nahar Vs. Nilima Mandal and another, 2008 (17) SCC 491. It is also urged by the learned counsel for the appellant that in view of para Nos.14 and 15 of PW-1, suit was also time barred, therefore, in view of the above, it is urged that substantial questions of law arise as mentioned in the appeal memo in the instant case.

05. Learned counsel for the respondents has submitted that learned courts below have not committed any illegality and, therefore, findings are based on correct appreciation of evidence and no substantial question of law arises in the instant case, therefore, appeal cannot be admitted for final hearing.

06. I have heard learned counsel for the parties and perused the records of Courts below.

07. It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. trial court has partly decreed the respondent/plaintiff's suit and appeal filed against this judgment by appellant/defendant has also been dismissed by the trial court.

08. 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

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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".

09. 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;

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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".

10. 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

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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".

11. Perusal of the averments made in the plaint clearly reveal that suit with respect to agricultural land has been filed on 07.08.2007 i.e. after the death of plaintiff's father on 20.03.2007. It is also apparent that with respect to agricultural land, suit has been filed in relation to share of plaintiff's father. Therefore, in this respect, it cannot be said that the suit was time barred. It is also correct that generally, Court cannot give relief which is not prayed for. In the instant case, from pleadings and evidence

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and the judgments passed by Courts below, it is evident that courts below have not declared plaintiff's sole owner of survey No.516/3 as prayed for in para 10-A of plaint, instead, courts below have declared that plaintiffs are entitled to 1/7 -1/7 shares in above agricultural land. In this connection, para 15 of trial court's judgment and para 24 of appellate court's judgment can be gainfully referred. Therefore, in view of above, it cannot be said that learned courts below have given relief which was not prayed for.

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 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.

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14. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of respondent/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.

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: 2023.10.17 19:57:14 +05'30'