Madhya Pradesh High Court
Bhallu Patel vs Ramgopal Patel (Died) Through L.Rs. ... on 1 August, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1 SA-1953-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 1 st OF AUGUST, 2024
SECOND APPEAL No. 1953 of 2021
BHALLU PATEL AND OTHERS
Versus
RAMGOPAL PATEL (DIED) THROUGH L.RS. SMT.BABI PATEL AND
OTHERS
Appearance:
Shri Brijesh Kumar Mishra - Advocate for the appellants.
Shri Sandeep Kumar Dubey-Panel Lawyer for the respondent/State.
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 09.12.2021 passed
by learned Second District Judge, Shahdol (MP) in Regular Civil Appeal
No. 300025/2015, arising out of the judgment and decree dated 17.07.2015
passed in Civil Suit No.12-A/2013.
2. Brief facts of the case are that appellants/plaintiffs have filed a
suit for declaration of title and permanent injunction on the ground that suit
properties are ancestral property of plaintiffs as well as defendants and
plaintiffs have 1/2 share in the suit property.
3. Learned counsel for the appellants submits that suit properties are
ancestral property of plaintiffs as well as defendants. Nema Patel was
original owner of the suit property. Nema Patel has three sons i.e.
Bhagwandeen, Molai and Ferva. Ferva and his wife had expired before
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1971. It is also urged that neither Ferva nor his wife signed Ex. D/1 and
there are no thumb impression of Ferba and his wife on Ex.D/1. Alleged
partition is not legal as at the time of above partition, Nema Patel has only
two sons. It is also urged that Ferva and his wife do not have any son or
daughter. Defendants have alleged that Ferva's wife has executed will in
their favour but no such will has been filed in the instant case. Therefore, on
above grounds, it is urged that plaintiffs have 1/2 share in the suit property.
Learned trial court has rightly decreed suit but First appellate Court has
wrongly reversed findings recorded by the trial Court. On above grounds, it
is urged that substantial questions of law as mentioned in the appeal memo
arise for determination. Hence, appeal be admitted for final hearing.
4. Heard, perused record of the case.
5. Learned trial Court vide judgment dated 17.07.2015 passed in RCS
No. 12A/2013 decreed suit in favour of appellants/plaintiff but Appellate
Court vide judgment dated 09.12.2021 passed in RCA No. 300025/2015
allowed defendant's appeal and reversed findings recorded by the trial Court
and dismissed plaintiff's suit.
6. Therefore, question arises as to when this Court can interfere with
the findings of facts arrived at by the first appellate court. 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:-
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"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."
7. 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
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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".
8. 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
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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-
6 SA-1953-2021
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 finding. This was in Second
Appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference
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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".
9. Perusal of plaint filed by the appellants/plaintiffs reveals that in
para 1, family tree is mentioned and therein it is shown that Nema Patel had
two sons namely Bhagwandeen and Molai. In plaint, it is nowhere mentioned
that Nema Patel has three sons namely Bhagwandeen, Molai and Ferva. It is
also not mentioned in plaint that Ferva and his wife had expired before 1971
and that Ferva does not having any siblings. In plaint, there is no mention
about Ex. D/1's partition. Perusal of Ex. D/1 reveals that it contains thumb
impression of plaintiff's father Farasram. In plaint, it is not mentioned as to
when Farasram expired and whether he ever challenged Ex. D/1's partition
during his life time. In absence of above material pleadings in plaint filed by
the plaintiff, plaintiff's suit cannot be decreed. Therefore, in this court's
opinion, learned First Appellate Court has not committed any error in
dismissing the plaintiff's suit.
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10. Further, if pleadings and evidence adduced by the parties and
the impugned judgment passed by the first appellate court is considered, in
the light of above legal principles/legal provisions reiterated in aforesaid
judgments, then, in this Court's considered opinion, the findings of facts
recorded by the first appellate court are not liable to be interfered with in the
instant case and it cannot be said that first appellate court has ignored any
material evidence or has acted on no evidence or first appellate court has
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 first appellate court/trial
court are based on inadmissible evidence.
11. A perusal of the impugned judgment and decree passed by the
first appellate court reveals that it is well reasoned and has been passed after
due consideration of oral as well as documentary evidence on record.
Learned counsel for the appellant has failed to show that how the findings of
facts recorded by the first appellate court/trial court are illegal, perverse and
based on no evidence etc. The learned first appellate court has legally and
rightly dealt with the issues involved in the matter and has recorded correct
findings of fact.
12. For the reasons aforesaid, I find no merit in the instant second
appeal. Findings recorded by the first appellate court are fully justified by the
evidence on record. Findings recorded by the first appellate court 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
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appeal. No question of law, much less substantial question of law, arises for
adjudication in the instant appeal. Hence, appeal is dismissed in limine.
13. A copy of this order along with record be sent back to the first
appellate court/trial court for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
L.R.
