Madhya Pradesh High Court
Santosh vs Parasram on 9 August, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 SA-379-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 9 th OF AUGUST, 2024
SECOND APPEAL No. 379 of 2020
SANTOSH AND OTHERS
Versus
PARASRAM AND OTHERS
Appearance:
Shri Pushpendra Dubey - Advocate for the appellants.
Shri R. S. Khare - Advocate for respondent no.7.
Shri Brijesh Shrivastava - Panel Lawyer for the respondent -State.
ORDER
The present Second appeal by appellants/ defendants under Section 100 of
Civil Procedure Code has been filed against the judgment and decree dated
28.2.2019 passed by learned IIIrd Additional District Judge, Multai, district Betul
in C.A. No.123-A/2017, whereby learned IIIrd Additional District Judge, Multai,
district Betul has has dismissed the appeal and confirmed the judgment of the trial
court dated 13.01.2017 in Civil Suit No.82-A /2010.
2. The appellants lost in both the courts. The plaintiffs filed a suit for the
suit property as mentioned in Para-1 of the judgment of the trial court for
declaration of title, injunction and declaration to the effect that sale deed dated
17.2.1968 (Ex.P-1) was void against them.
3. It was admitted between the parties that Dewaji and Rewaji were
brothers. They had partitioned the suit property in revenue records. Rewaji had
two daughters namely Chandrabhaga and Mani Bai.
4. It was submitted by the plaintiffs/respondents that the suit property was
sold to the plaintiffs by the deceased Rewaji, but behind the back of L.Rs. of
Rewaji got the suit property mutated in their names and after plaintiffs came to
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know about it, they approached Revenue Court and filed the suit also.
3. The defence of defendants was that the sale deed was obtained by fraud
because Rewaji used to sign on the documents but the sale deed under challenged
has thumb impression. The defendants also filed the Counter Claim which was
opposed by the plaintiffs. The trial court framed six issues and after recording the
evidence of both the parties in Civil Suit No. 82-A of 2010 by judgment and
decree dated 13.01.2017 decreed the suit of the plaintiffs and dismissed the
counter claim of the defendants. Learned First Appellate Court in C.A. No. 123-A
of 2017 (Santosh and others Vs. Parasram and others), vide judgment and decree
dated 28.02.2019 dismissed the appeal.
4. Perused the record, considered the arguments and grounds of appeal.
5. In the considered view of this court, both the courts have dealt with all
factual and legal position. On the basis of evidence, it was not proved that Rewaji
used to sign the documents and did not put his thumb impression on documents.
Even otherwise, it was pleaded by defendants themselves that for about two
years before his death, Rewaji was very ill, therefore, when there is no satisfactory
proof that Rewaji used to sign documents, then when people in old age do put
thumb impression as it is not easy to make signature. It is also seen that in Ex.P-
13 sale deed by Rewa in favour of one Shyam, there is thumb impression of
Rewa as proved by PW-5, Sub Registrar, S.R. Choudhary.
6. Another ground is regarding poor condition of Rewaji. It is submitted
by learned counsel for the appellant that Rewaji was in very good financial
condition. he was a Malgujar. He had no need to sell the property in question but
it is seen that in the disputed registered sale deed, it is mentioned that Rewaji
sold the property as he was in need of money. It is also seen that the wife of
Rewaji also sold some land due to financial need by sale deed (Ex.D-23).
Therefore, this ground also fails.
7. It was also submitted that the suit was time barred but on perusal of the
record, it is seen that parties would be able to challenge any order only when
they came to know about it or otherwise when suddenly some action against
them is taken on account of the order. Nobody can be expected to check the
revenue records frequently. It is only when possession is challenged in the open,
then a person comes to know about the order.
8. It was also submitted that defendants - appellants had filed
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applications under Order 41 Rule 27 of CPC but they were rejected by the
learned First Appellate Court. On perusal of the record of first appellate court, it
is seen that appellants filed an application under Section 45 of Evidence Act as
they wanted to examine the disputed thumb impression on disputed document.
On the basis of signature in the order sheet of the court, W.S., reply in the court
of opposite party, i.e. the plaintiffs. The respondents opposed the application.
Learned First Appellate Court has mentioned in Para-16 that such an application
of the appellant was rejected on 1.12.2010 but that order was not challenged in
the higher forum, therefore, it became final. Some documents were also filed with
the prayer under Order 41 Rule 27 of CPC that these documents are important for
proper adjudication of the case and that was the order of Commissioner,
Hoshangabad and "Bakshishnama" copy. Opposite party had objected and the
trial court has again dismissed the application on the ground that they do not
relate to the disputed property. Another application under Order 41 Rule 27 of
CPC was filed on the ground that earlier in Civil Suit No. 251 of 1968 (Smt.
Gopika Vs. Shyamji and others) that case was compromised between the parties
and therefore that document is also important, therefore, suit would be barred
under Order 7 Rule 11 of CPC but Ex. D-23 is a sale deed in which Gopika, wife
of Rewaji sold the property because she required money for treatment of Rewaji
and therefore his wife- Gopika was in need of money. Regarding Civil Suit No.
251 of 1968 (Gopika Vs. Shyam), it is seen that on 26.7.1968, the suit was simply
withdrawn, therefore, new suit would not be hit by Order 7 Rule 11 of CPC.
Therefore, on the basis of this document, no inference can be drawn in favour of
the appellants and, therefore, the suit would not be hit by Order 7 Rule 11 of the
CPC. A very important aspect is that if the case of the defendant is to be believed,
then if the property was in their possession and they had title also then after the
death of Rewaji about 35 years, why they did not get the suit property mutated
in their names therefore, it shows that as the plaintiffs has submitted that the suit
property was sold by Rewaji to them is correct.
9. Therefore it is seen on perusal of record of both the courts that all the
facts and law has been considered by both the courts and there is no substantial
question of law in this case for which this appeal can be admitted.
10. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well defined
4 SA-379-2020
by catena of decisions of the Supreme Court. This Court cannot interfere with the
finding of fact until or unless the same is perverse or contrary to material on
record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009)
5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others, (2001) 7 SCC 189,
Union of India v. Ibrahim Uddin and Antoher, (2012) 8 SCC 148, D.R. Rathna
Murthy v. Ramappa, (2011) 1 SCC 158 Vishwanath Agrawal v. Sarla Vishnath
Agrawal, (2012) 7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao
Babu Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v.
Ranganath and Others, (2015) 4 SCC 264] The concurrent findings of fact
recorded by the courts below are based on meticulous appreciation of evidence on
record which by no stretch of imagination can be said either to be perverse or
based on no evidence.
11. For the reasons discussed above, this appeal has no merit and is
accordingly dismissed.
(AVANINDRA KUMAR SINGH)
JUDGE
bks
