Chandmal vs Prabhulal
2023 Latest Caselaw 17978 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 30th OF OCTOBER, 2023

            SECOND APPEAL No. 58 of 2016

BETWEEN:-
   CHANDMAL S/O WALA JI CHAMAR, AGED ABOUT 63 YEARS,
1. OCCUPATION: BUSINESS VILLAGE BARKHEDA SONDHIYA,
   DISTT. NEEMUCH (MADHYA PRADESH)
   LABHCHAND S/O WALA JI CHAMAR, AGED ABOUT 53 YEARS,
2. OCCUPATION:   AGRICULTURE    VILLAGE   BARKHEDA
   SONDHIYA NEEMUCH (MADHYA PRADESH)
   NANURAM S/O WALA JI CHAMAR, AGED ABOUT 51 YEARS,
3. OCCUPATION:   AGRICULTURE    VILLAGE   BARKHEDA
   SONDHIYA NEEMUCH (MADHYA PRADESH)
                                     .....APPELLANTS
(MR. SAMEER ANANT ATHAWALE,ADVOCATE FOR APPELLANTS)

AND
   PRABHULAL S/O PYARAJI CHAMAR, AGED ABOUT 59 YEARS,
1. OCCUPATION:    AGRICULTURE    VILLAGE   BARKHEDA
   SONDHIYA, DISTT. NEEMUCH (MADHYA PRADESH)
   HEERABAI W/O GOBARLAL CHAMAR, AGED ABOUT 63
2. YEARS, OCCUPATION: AGRICULTURE VILALGE BARKHEDA
   OSNDHIYA NEEMUCH (MADHYA PRADESH)
   AVANTIBAI W/O LALURAM CHAMAR, AGED ABOUT 38
3. YEARS, OCCUPATION: HOUSEWIFE VILLAGE CHANGERI
   TEHSIL MALHARGARH MANDSOUR (MADHYA PRADESH)
   BULAKBAI W/O OMPRAKASH CHAMR, AGED ABOUT 30
4. YEARS, OCCUPATION: HOUSEWIFE VILLAGE LASUDI
   TANWAR NEEMUCH (MADHYA PRADESH)
   FORIBAI D/O GOBARLAL CHAMAR, AGED ABOUT 22 YEARS,
5. OCCUPATION: HOUSEWIFE VILLAGE BARKHEDA SONDHIYA
   NEEMUCH (MADHYA PRADESH)
   THE COLLECTOR THE STATE OF MADHYA PRADESH
6.
   NEEMUCH (MADHYA PRADESH)
                                  2

   PRAKASHBAI W/O RATANSINGH SONDHIYA, AGED ABOUT 30
7. YEARS, OCCUPATION: AGRICULTURE VILLAGE BARKHEDA
   SONDHIYA NEEMUCH (MADHYA PRADESH)
   LAXMANSINGH S/O BHANWARSINGH, AGED ABOUT 38
8. YEARS, OCCUPATION: AGRICULTURTE VILLAGE BARKHEDA
   SONDHIYA NEEMUCH (MADHYA PRADESH)
                                              .....RESPONDENTS
(MR. SATISH JAIN, ADVOCATE FOR THE RESPONDENT NO.1
[LR/S].
(MS. GEETANJALI CHAURASIA, ADVOCATE FOR RESPONDENT
NO.6/STATE)

                    Reserved on : 26.10.2023
                  Pronounced on: 30.10.2023
_______________________________________________________
      This second appeal having been heard and reserved for
orders, coming on for pronouncement this day, Justice Shri Achal
Kumar Paliwal pronounced the following:

                             ORDER

This second appeal filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 07.11.2015 passed by Additional District Judge, Neemuch (MP) in RCA No.48-A/2015, thereby confirming the judgment and decree dated 09.01.2012 passed by Second Civil Judge, Class-1, Neemuch in Civil Suit No.7-A/2011 by which the suit filed by respondent No.1 was decreed.

(2) The brief facts of the case are that respondent No.1/plaintiff filed the suit for declaration of title, partition, delivery of possession and permanent injunction on the ground that Hiraji had four sons namely; Bhera, Hansa, Bala and Pyara. The plaintiff is son of Pyara. Bheraji got separated during lifetime of Hiraji and

thereafter Hiraji and his remaining three sons Hansa, Bala and Pyara continued to be members of joint family and remaining property was of joint family properties. Later on, there was a partition between Hansaji, Balaji and Pyaraji and after partition Hansaji died issue-less and his wife had already expired during lifetime of Hansaji. Therefore, after the death of Hansaji, the share of Hansaji would devolve on his real brother and therefore Balaji and Pyaraji would receive ½ share each in the property left by Hansaji. Deceased Hansaji did not adopt anyone during his lifetime and labhchand is not the adopted son of Hansaji but has got illegally mutated his name over the property of Hansaji and after mutation, labhchand and chandmal etc sold the property to defendants No.9 and 10. On above grounds, plaintiff sought decree of declaration of title, partition, delivery of possession and permanent injunction.

(3) Learned trial Court vide judgment dated 09.01.2012 passed in RCS-A No.07/2011 decreed suit filed by respondent/plaintiff and appeal filed against above judgment by appellants/defendants was dismissed by Additional District Judge, Neemuch in RCS-A No.48/2015 vide judgment dated 07.11.2015 has affirmed the findings of trial Court. Against this, appellants/defendants has filed this second appeal.

(4) Learned counsel for the appellants/defendants after referring to Para Nos. 52, 53 and 54 of trial Court's judgment submits that respondent/plaintiff was well aware of appellant's mutation over Hansa's property in the year 1995, still he did not file any suit,

challenging the appellant's mutation. Hansa expired in the year 1993 and the name of Labhchand was mutated in the revenue papers in the year 1995. The plaintiff has not clarified anywhere in the plaint as to when he came to know about mutation of labhchand. Limitation would start from the date of knowledge about mutation. The present suit has been filed on 12.04.2005 and there are no specific averments about the cause of action, therefore relying upon Shyam Lal alias Kuldeep vs. Sanjeev Kumar and Others reported in AIR 2009 SUPREME COURT 3115, it is submitted that suit filed by plaintiff is time barred.

(5) Learned counsel for the appellants/defendants after referring to Damayanti Devi and Others vs. Munna Shah and Others reported in [2014(4) MPLJ 342, Gurnam Singh and Others vs. Gurbachan Kaur (D) and Others reported in 2017(2) JLJ 166 and Perumon Bhagyavathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) and Others reported in (2008) 8 Supreme Court Cases 321 submits that when first appellate Court decided the appeal, the respondent No.3 Avantibai was already dead but her legal representatives were not taken on record and without taking on record the legal representatives of deceased Avantibai, appellate Court decided the appeal. Therefore, judgment passed by the first appellate Court is nullity and therefore, the case be remanded back to the first appellate Court to decide the appeal afresh after taking on record the legal representatives of deceased Avantibai.

(6) Learned counsel for the appellants/defendants has further

submitted that the appellants/defendants has incorporated the essential facts relating to adoption in the written statement by amendment but the Courts below did not take into consideration the amended pleadings with respect to adoption which is contrary to law as amendment takes effect from the date of filing of written statement. The appellants have produced sufficient evidence to prove the fact of adoption. As adoption took place in the year 1970, therefore, it is not possible to produce independent witnesses in 2011, though appellants have examined Bageram as DW/3 to prove the factum of adoption and has also produce DW/11 and DW/13. It is also urged that civil case has to be decided on the basis of preponderance of probability. Hence from evidence on record, adoption of Labhchand by Hansa is clearly proved. On above ground, it is urged that substantial questions of law as mentioned in the appeal memo arise for determination of this Court.

(7) Learned counsel for the respondent No.1/plaintiff has submitted that first appeal was filed by appellants himself and deceased Avantibai is family member of appellants. Therefore, they must be aware of her death. Hence, they should have initiated proceedings to take legal representatives of deceased Avantibai on record. Further, it is apparent from the result of suit that Avantibai is not adversely affected at all and there is no order against deceased Avantibai and therefore case should not be remitted back to the first appellate Court. Counsel has also submitted that there is no document on record, wherein, the appellant has been mentioned as adopted son of Hansa, instead, in all the documents filed by

appellants and even otherwise also, the name of natural father of appellants is mentioned in the documents. Learned trial Court, in Paras 29 to 40, has elaborately discussed the documents and evidence on record and has given the categorical findings. It is not proved that appellant is adopted son of Hansa. In this connection, he has relied upon the judgments of Keerat Singh and Another vs. Ramjee and 2 Others reported in 2007 (II) MPJR 314, Pappusingh vs. Hazari reported in AIR ONLINE 2020 MP 86 and Ratanlal Alias Babulal Chunilal Samsuka vs. Sundarabai Govardhandas Samsuka (Dead) through legal representatives and Others reported in (2018) 11 Supreme Court Cases 119 to bolster his submissions. As Bala and Pyara are real brothers and Hansa did not have any issue, therefore, as per Section 6 and 8 of Hindu Succession Act, 1956, the property of Hansa will devolve upon Bala and Pyara.

(8) It is also submitted that cause of action arose when labhchand tried to sale property as adopted son of Hansa and that there is discussion in Para 53 of trial Court's judgment about the cause of action. In this connection, he has relied upon judgments of Mangilal vs. Saligram and Others reported in AIR 2009 (NOC) 1273 (MP) and Munni Bai vs. Surju Jaddu reported in AIR 2023 (NOC) 457 (MP) to bolster his submissions. On above grounds, it is urged that no substantial questions of law arise in the instant case and hence the appeal cannot be admitted and the same be dismissed.

(9) I have heard learned counsel for the parties and have

perused the records of Courts below.

(10) It is apparent from records of Courts below that it is a case of concurrent findings of facts/law i.e. trial Court decreed suit filed by the respondent/plaintiff and the appeal filed by appellants/defendants was also dismissed.

(11) 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".

(12) 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".

(13) 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 authorized 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".

(14) Now I will discuss the submissions/grounds taken by appellants in his submissions. The first ground urged by appellants/defendants is that when first appellate Court passed the judgment, defendant Avantibai was already dead and her legal representatives were not brought on record. Therefore, on this ground alone the judgment passed by first appellate Court is nullity. In this respect, he has relied upon Damayanti Devi, Gurnam Singh and Perumon Bhagvathy (supra). In this connection, it has to be kept in mind that first appeal was filed by present appellants, therefore, it was their duty to have informed the appellate Court about the death of Avantibai and to have initiated proceeding to take on record the legal representatives of aforesaid

deceased. Therefore, now they cannot take the benefit of their own mistake and hence, on this ground, the case cannot be remitted back to the first appellate Court. Further, it is pertinent to mention here that from the impugned judgment deceased Avantibai has not been adversely affected in any way. Therefore also, it would not be proper to remit back the case to the first appellate Court.

(15) It is also apparent from the records of the case that appellant Avantibai did not appear before trial Court and neither filed any written statement and before first appellate Court also, deceased Avantibai did not appear and she was proceeded ex-parte in this case.

(16) In Bhagirathmal vs. Bhagwan Datt, reported in AIR 1996 Raj, 27, it has been held held that decree against a dead person is not nullity when deceased-defendant had not filed written statement and had not made legal appearance during pendency of trial and in fact the trial has proceeded against him ex-parte. The appeal against such decree, cannot also be dismissed for not bringing LR's of deceased-defendant on record.

(17) Hence, in view of discussion in the foregoing paras, principles laid down in the case of Damayanti Devi, Gurnam Singh and Perumon Bhagvathy (supra) does not apply in the present facts and circumstances of the case.

(18) In view of the above, it would not be proper to remit back the case to first appellate Court on the ground that at the time of passing of impugned judgment, Avantibai was dead.

(19) Learned counsel for the appellants/defendants after referring

to Para-15 of plaintiffs witness Prabhulal's deposition and relying upon the judgment of Shyamlal (supra) submits that learned trial Courts below have wrongly held the suit within limitation and limitation would start from the date of knowledge of mutation.

(20) Before proceeding further, it would be appropriate to discuss as to what is meant by "cause of action" and when does "right to sue" arise. In this connection, I would like to refer certain judgments of Hon'ble Apex Court and of this Court also.

(21) So far as cause of action is concerned, the Hon'ble Apex Court in the case of Alchemist Ltd and another vs. State Bank of Sikkim and Others reported in [2007(3) MPLJ 284 has held as under:

"23. It may be stated that the expression 'cause of action' has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit.

24. The classic definition of the expression 'cause of action' is found in Cooke v. Gill, (1873) 8 CP 107 : 42 LJ PC 98, wherein Lord Brett observed:

"'Cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court".

25. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed".

(22) In the case Swami Atmananda and Others vs. Sri Ramakrishna Tapovanam and Others reported in AIR 2005 Supreme Court 2392, it has been held as under:-

"24. Osborn's Concise Law Dictionary defines 'cause of action' as the fact or combination of facts which give rise to a right or action.

25. In Black's Law Dictionary it has been stated that the expression cause of action is the fact or facts which give a person a right to judicial relief.

26. In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of facts that give rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.

27. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded".

(23) In the case of Y. Abraham Ajith and Others vs. Inspector of Police, Chennai and Another reported in (2004) 8 Supreme Court Cases 100 it has been held as under:

"14. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.

15. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action".

16. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

17. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black's Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.

18. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:

"Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to

entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".

(24) In the case of State Bank of India vs. Ranjan Chemicals Ltd and Another reported in [2007(2) MPLJ 18, it has been held as under:-

"The elements of a cause of action are: the breach of duty owing by one person to another and; second, the damage resulting to the other from the breach, or the fact or combination of facts which gives rise to a right to sue."

(25) So far as "right to sue" is concerned, the Hon'ble Apex Court judgment in the case of Mst.Rukhmabai vs. Lala Laxminarayan and Others reported in AIR 1960 Supreme Court 335 has been held as under:

"(31) The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads:

------------------------------------------------------------- Description of suit, Period of Limitation, Time from which period begins to run

---------------------------------------------------------------------------------------

120. Suit for which Six years When the right to sue accrues no period of limitation is provided elsewhere in this Schedule.

-------------------------------------------------------------------------------

This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Court of various States. The leading decision on the subject is that of the Judicial Committee in Bolo v. Koklan (1). Therein, Sir Benod Mitter, observed:

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."

(32) The said principle was restated and followed by the Judicial Committee in Annamalai Chattiar v. A.M.K.C.T Muthukaruppan Chettiar (2) and in Gobinda Narayan Singh v. Shain Lal Singh (3). The further question is, if there are successive invasions or denials of a right, when it can be held that, a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State (4), a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasiibba Rao, J., after considering the relevant decisions, expressed his view thus: "

"There is nothing in law which says that the moment a person's right is denied, he is bound at (1) (1929-30) L.R. 57 I.A, 325, 331. (2) (1930) I.L.R. 8 Rang. 645. (3) (1930-31) L.R. 58 I.A. 125. (4) A.I.R. 1938 Mad. 193, 198, his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit ". He adds at p. 199:

" It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action ? "

(33) The legal position may be briefly stated thus: The right to sue under Art. 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be

considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right".

(26) Hence, in the light of above legal principles, it would be examined as to when cause of action along with right to sue arose. A perusal of Shyamlal's case (supra) reveals that therein no absolute principle has been laid down by Hon'ble Apex Court that as soon as mutation is effected, cause of action/right to sue arise to the other party. Further, it is well established that mere mutation does not affects rights or title of true owner, mutation is for fiscal purpose only. (Asha Lamba (Smt.) and Others vs. Board of Revenue and Others reported in 1999 RN 401).

(27) In this court's considered opinion, mutation may or may not give rise to cause of action/right to sue and it will depend on the facts and circumstances of each case and no absolute principle can be laid down in this connection.

(28) In the instant case, a perusal of plaint filed by the plaintiff, especially para 11 of suit, reveals that plaintiff has filed the present suit for partition etc, on the ground that he being real brother of deceased Hansa, is entitled to 1/2 share of Hansa's property. Therefore, in view of pleadings in para 11 of the plaint, along with testimony of plaintiff witness Prabhulal in examination-in-chief, it cannot be said that the plaintiff's suit is time barred, just on the basis of para 15 of cross-examination. It is well established fact that deposition of a witness has to be read as a whole and not in a

piecemeal manner. Hence, in view of the above, it cannot be said that plaintiffs suit was time barred.

(29) So far as conclusions with respect to appellant labhchand being adopted son of deceased Hansa is concerned, I have gone through the evidence adduced by the parties and in view of absence of sufficient documentary and oral evidence, it cannot be said that deceased Hansa has adopted the appellant - labhchand.

(30) A perusal of impugned judgments passed by courts below reveals that in this regard, evidence on record has been appreciated by the courts below properly and findings recorded by both the courts below cannot be said to be perverse or against the evidence or contrary to law. Further, if evidence on record is assessed in the light of principles laid down in the case of Keerat Singh, Pappulal and Ratanlal (supra), then evidently from evidence on record, it is not proved at all that Hansa adopted appellant - Labhchand.

(31) Thus, 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.

(32) 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/defendants 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.

(33) 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.

(34) 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=d5b56e3de75e7828ced1a96bc4f 01804c3ea1f0a5497e4019e41c0a82cbabbf

NAIR 0, postalCode=452001, st=Madhya Pradesh, serialNumber=192F2423E128DC1CC004D D8FF22B3F2FFC3D1EF75981FCBEF3B2B76 823F270F7, cn=ARUN NAIR Date: 2023.10.31 16:14:12 +05'30'