Madhya Pradesh High Court
Budharm Lilhare vs Smt. Bhagratibai on 1 February, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 01st OF FEBRUARY, 2024
SECOND APPEAL No. 824 OF 2021
BETWEEN:-
BUDHARM LILHARE S/O SHRI
SHIVRAJ LILHARE, AGED ABOUT
60 YEARS, OCCUPATION:
LABOURER R/O WARD NO. 5
BAIHAR CHOUKI BALAGHAT
TEHSIL AND DISTT. BALAGHAT
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRAVESH NAVERIYA - ADVOCATE)
AND
1. SMT. BHAGRATIBAI W/O SHRI
BHARAT MARAR, AGED ABOUT 62
YEARS, R/O WARD NO. 5 BAIHAR
CHOUKI BALAGHAT TEHSIL AND
DISTT. BALAGHAT (MADHYA
PRADESH)
2. SMT.SARSATI BAI W/O RAMESH
KUMAR DESHMUKH, AGED ABOUT
57 YEARS, R/O WARD NO. 5 BAIHAR
CHOUKI BALAGHAT TEHSIL AND
DISTT. BALAGHAT (MADHYA
PRADESH)
.....RESPONDENTS
(BY SMT. EKTA GUPTA - PANEL LAWYER )
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/6/2024
6:21:33 PM
2
_______________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
JUDGEMENT
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 19.01.2021 passed by
Additional District, Judge to Court of 1st ADJ Balaghat in RCA No.90/19,
arising out of the judgment and decree dated 23.09.2019 passed in Civil Suit
No.2600047A/16.
2. Brief facts of the case are that appellant/plaintiff filed a suit for
permanent injunction on the ground that plaintiff is owner and is in possession
of house situated on Survey No.209/1/D, area 0.006 hectare. It is also averred
in the plaint that plaintiff had purchased above land vide sale deed dated
08.03.2014 and east side of above house, there is three feet (Nistari Gali) and
thereafter, defendant's land is situated. Defendant have encroached/have made
construction on above three foot land and it is disputed in the instant suit.
3. Learned trial Court vide judgment dated 23.09.2019 passed in RCS
No.2600047-A/16 dismissed the suit filed by plaintiff and appeal filed by
plaintiff was also dismissed vide judgment dated 19.01.2021 passed in RCA
No.90/19.
4. Learned counsel for the appellants submits that in the instant case, dispute
is with regard to alley of 3 ft. situated on east of plaintiff's house. The plaintiff
purchased the suit property vide Ex.-P/1 dated 08.03.2014. Previously,
predecessors of the plaintiff filed a suit with respect to the disputed alley and it
was decreed in favour of Jugraj and later on, the appeal filed against the above
decree, was also dismissed. Above documents are Ex.-P/4 and P/5. It is further
submitted that there is no demarcation report on record and the issue involved in
the case cannot be determined without there being any demarcation report. It is
submitted that the plaintiff purchased 2610 sq.ft. of plot vide sale-deed (Ex.-
P/1) and the alley situated on east of above property, is part of said plot
measuring 2610 sq.ft., but the defendants have encroached upon the said alley.
Hence, it is prayed that substantial questions of law as mentioned in the appeal
memo arise in the case for determination, hence, this appeal be admitted for
final hearing.
5. I have heard learned counsel for the parties and have perused the records of
Courts below.
6. It is apparent from record of Courts below that it is a case of concurrent
findings of fact ie. trial Court decreed the suit and appellate Court dismissed the
appeal filed by defendants and counter claim filed by defendants was also
dismissed by no appeal was filed by defendants.
7. 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".
8. 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".
9. 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 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 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".
10. Perusal of sale deed (Ex.P/1) reveals that vide above sale deed, plaintiff has
purchased a plot measuring 2610 Sq.ft of Survey No.209/1/D, area 0.024
hectare.
11. Perusal of (Ex.P/1) sale deed reveals that therein boundaries of property are
mentioned and on east side of property, land of Bhagrati Bai is mentioned and it
is not mentioned that in between the plot purchased by plaintiff and Bhagrati
bai's land, 3 feet vide alley (Nistari Gali) is situated.
12. Further, as per plaint averments, plaintiff has constructed house on above
land in the year 2014 but plaintiff has not filed any map sanctioned by
Municipal Corporation, Balaghat. Thus, it is not established from evidence on
record that in between plaintiffs/plot house and Bhagarti bai's land, any three
feet alley (Nistari Gali) was/has been in existence.
13. 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 consider 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.
14. A perusal of the impugned judgments and decree passed by the Courts
below reveals 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 fact.
15. For the reasons aforesaid, I find no merit in the instant second appeal.
Concurrent findings recorded by the Courts below 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 appeal. Hence, present appeal is dismissed in limine.
16. A copy of this order along with record be sent back to the Courts below for
information and its compliance.
(ACHAL KUMAR PALIWAL
JUDGE
vai
