Madhya Pradesh High Court
Shankar Singh vs Baldul Kachi S/O Baraiya Kachi (Dead) ... on 7 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
SECOND APPEAL No. 798 OF 2019
BETWEEN:-
1. SHANKAR SINGH S/O DHAMKAN
SINGH THAKUR, AGED ABOUT
74 YEARS, R/O GRAM DALUN
TEHSIL AND DISTRICT
CHATTARPUR (MADHYA
PRADESH)
2. HEERA BAI W/O PRABHUDAYAL
DIXIT, AGED ABOUT 74
YEARS, GRAM DALAUN
TEH. AND DISTT. CHATTARPUR
(MADHYA PRADESH)
3. RAMESH S/O PRABHUDAYAL DIXIT,
AGED ABOUT 74 YEARS, GRAM
DALAUN TEH. AND DISTT.
CHATTARPUR (MADHYA
PRADESH)
4. BHAGIRATH S/O PRABHUDAYAL
DIXIT, AGED ABOUT 36 YEARS,
GRAM DALAUN TEH. AND DISTT.
CHATTARPUR (MADHYA PRADESH)
.....APPELLANTS
(BY MS. SANJANA SAHNI - ADVOCATE)
AND
1. BALDUL KACHI S/O BARAIYA KACHI
(DEAD) THAROUGH LRS HIRALAL
W/O LATE BALDUA KACHI, AGED
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/8/2024
5:20:19 PM
2
ABOUT 59 YEARS, R/O GRAM DALUN
TEHSIL AND DISTRICT (MADHYA
PRADESH)
2. FULABAI D/O LATE BALDUA KACHI,
AGED ABOUT 52 YEARS, GRAM
DALAUN TEH. AND DISTT. (MADHYA
PRADESH)
3. MUNNILAL S/O LATE BALDUA
KACHI, AGED ABOUT 49 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
4. LALLU ALIAS MANGALDEEN S/O
LATE BALDUA KACHI, AGED ABOUT
46 YEARS, GRAM DALAUN TEH. AND
DISTT. (MADHYA PRADESH)
5. ACHHELAL S/O LATE BALDUA
KACHI, AGED ABOUT 44 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
6. KAALI S/O LATE BALDUA KACHI,
AGED ABOUT 34 YEARS, GRAM
DALAUN TEH. AND DISTT. (MADHYA
PRADESH)
7. RAMKI D/O GHANSUA, AGED ABOUT
64 YEARS, GRAM DALAUN TEH. AND
DISTT. (MADHYA PRADESH)
8. AMNI W/O RAMDAYAL KACHI, AGED
ABOUT 69 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
9. GYASI S/O GHURKA KACHI, AGED
ABOUT 64 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
10. MEHDUA S/O VANSHI KACHI, AGED
ABOUT 69 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
11. CHUNTAIYA (DEAD) THROUGH LRS.
BHANTI W/O LATE CHUNTAIYA
KACHI, AGED ABOUT 74 YEARS,
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/8/2024
5:20:19 PM
3
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
12. SARJU S/O LATE CHUNTAIYA KACHI,
AGED ABOUT 49 YEARS, GRAM
DALAUN TEH. AND DISTT. (MADHYA
PRADESH)
13. MOHAN S/O LATE CHUNTAIYA
KACHI, AGED ABOUT 46 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
14. KAMTU S/O LATE CHUNTAIYA
KACHI, AGED ABOUT 42 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
15. BALKISHUN S/O LATE CHUNTAIYA
KACHI, AGED ABOUT 39 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
16. PURAN S/O LATE CHUNTAIYA KACHI,
AGED ABOUT 34 YEARS, GRAM
DALAUN TEH. AND DISTT. (MADHYA
PRADESH)
17. KOSHABAI D/O LATE CHUNTAIYA
KACHI, AGED ABOUT 36 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
18. GHANABAI D/O LATE CHUNTAIYA
KACHI, AGED ABOUT 31 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
19. BHAGWATI D/O LATE CHUNTAIYA
KACHI, AGED ABOUT 28 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
20. PHULABAI D/O LATE CHUNTAIYA
KACHI, AGED ABOUT 22 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
21. BABULAL S/O HALLU, AGED ABOUT
44 YEARS, GRAM DALAUN TEH. AND
DISTT. (MADHYA PRADESH)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/8/2024
5:20:19 PM
4
22. MONIYA W/O BABUA ALIAS BABUA
KACHI, AGED ABOUT 44 YEARS,
GRAM DALAUN TEH. AND DISTT.
(MADHYA PRADESH)
23. SUKKAN S/O RAGHUWAR KACHI,
AGED ABOUT 49 YEARS, GRAM
DALAUN TEH. AND DISTT. (MADHYA
PRADESH)
24. GALWALIYA S/O MOTI KACHI, AGED
ABOUT 64 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
25. BASANTA S/O MOTI KACHI, AGED
ABOUT 59 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
26. PIRUA S/O PARMALAL, AGED ABOUT
59 YEARS, GRAM DALAUN TEH. AND
DISTT. (MADHYA PRADESH)
27. RAMGOPAL S/O RAMDAYAL, AGED
ABOUT 37 YEARS, GRAM DALAUN
TEH. AND DISTT. (MADHYA
PRADESH)
28. STATE OF M.P. THROUGH
COLLECTOR CHHATARPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BINOD KUMAR TIWARI -
ADVOCATE)
-------------------------------------------------------------------------------------------------
RESERVED ON : 31.01.2024
PRONOUNCED ON : 07.02.2024
_______________________________________________________________
This appeal having been heard and reserved for order,
coming on for pronouncement on this day, the court passed the
following:-
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 17.01.2019 passed in
Regular Civil Appeal No.21/2018 by Vth Additional District Judge, District
Chhatarpur, arising out of the judgment and decree dated 29.11.2013 passed in
Civil Suit No.85-A/2009.
2. Brief facts of the case are that appellants/plaintiffs filed a suit for declaration
of title, setting aside order dated 25.06.1984 and 27.08.1984 passed by Nayab
Tahsildar and for permanent injunction on the ground that suit property is
ancestral property of plaintiffs as well as defendants No.1 to 6. Accordingly,
plaintiffs and defendants No.1 to 6 are in possession thereof. In the year 1983-
84, name of defendant No.7 was mutated on suit property in place of Ghansua
etc., whereas Ghansua etc., has not transferred suit property to defendant No.7.
3. Learned Trial Court vide judgment dated 29.11.2013 passed in RCSNo.85-
A/2009 dismissed the suit but Appellate Court vide judgment dated 17.01.2019
passed in RCA No.21/2018 allowed the appeal filed by the plaintiffs and
decreed the suit.
4. Learned counsel for the appellant/defendant submits that the suit property
was given by plaintiffs to defendant no. 7 for cultivation and defendant no. 7
cultivated the land for ten years and, thereafter under Section 190 of the
Madhya Pradesh Land Revenue Code, defendant no. 7 acquired ownership over
the suit property in the year 1984. Thereafter, defendant no. 7 sold the suit
property to defendant nos. 8 to 10 in the year 1984. Till 1984, defendant no 7
was in possession of the suit property and after 1984, defendant nos. 8 to 10 are
in possession of the suit property. From Ex. D-4 and D-9 also, possession of
defendant nos. 8 to 10 is established. It is also urged that plaintiff has
knowledge of defendant no. 7's mutation over the suit property and sale deed
executed in favour of defendant nos. 8 to 10 but plaintiffs did not file the suit for
declaration etc. within three years. It is also urged that no relief for recovery of
possession was sought in the plaint. Therefore, plaintiff's suit is time barred.
5. After referring to para 19, 21 and 22 of the trial court judgment, it is also
urged that the trial court has rightly dismissed the plaintiff's suit but the
appellate Court has wrongly appreciated the evidence on record and has
erroneously decreed the plaintiff's suit. In the instant case, substantial question
of law as mentioned in the appeal memo arises for determination. Hence, the
appeal be admitted for final hearing.
6. Learned counsel for the respondent/plaintiff, after referring to para 15 of
the trial court judgment and 14 to 18 of appellate court judgment, submits that
defendant no. 7 has not filed any document showing his title over the suit
property. It is also further urged that from Ex. D-7, it cannot be inferred that
defendant no. 7 acquired ownership over the suit property under Section 190 of
the Madhya Pradesh Land Revenue Code and the appellate court has rightly
decreed the suit. Hence, the appeal filed by the appellant be dismissed.
7. I have heard learned counsel for the parties and have perused the records of
Courts below.
8. 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".
9. 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".
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 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".
11. Perusal of submissions made by appellants/defendants as well as averments
made in written statement and evidence on record, it is evident that basis of
defendant No.7's title is Khatoni (Ex.P/4), wherein defendant No.7's name has
been mutated on suit property vide order dated 27.06.1984. In Khatoni (Ex.P/4),
it is nowhere mentioned that on what basis/on that ground, defendant No.7's
name has been mutated. Further, from record of trial Court, it is also evident
that defendants have not filed copy of proceedings relating to mutation as
mentioned in (Ex.P/4). Further, there is nothing on record to show that
defendant No.7 acquired ownership over suit property under Section 190 of
MPLRC. Therefore, in view of absence of material documents just on the basis
of entry in (Ex.P/4), it cannot be said that defendant No.7 had acquired
ownership over suit property.
12. So far as possession of defendant No.7 (Shankar) is concerned, before
execution of sale deed in favour of defendants No.8, 9 and 10, it is apparent that
in trial Court, defendant No.7 Shankar Singh has not been examined to prove
that before execution of sale deed (Ex.D/9), he was in possession of suit
property and after execution of above sale deed, he delivered possession to
purchasers. With respect to possession over suit property, defendant Shankar
Singh was most material witness. There is no explanation on record for non-
examination of Shankar Singh. It is also important that defendant witness
Sitaram in para-18 has admitted that it is correct that Shankar Singh has never
been in possession of suit property. Defendant witness Hersavek has deposed in
para-5 of his cross-examination that Shankar Singh has been in possession of
suit property for 50-60 years but it is not the case of defendants that before
execution of (Ex.D/9) sale deed, Shankar Singh had been in possession of suit
property for 50-60 years. As per submissions made by learned counsel for the
appellant himself, before execution of sale deed, Shankar Singh was in
possession of suit property for 10 years.
13. In view of above, in this Court's opinion, from evidence on record,
appellants possession over suit property is not proved. It is also not proved that
Shankar Singh had any authority/ was competent to execute sale deed (Ex.D/9).
Further in the instance case, it cannot be said that plaintiffs' suit was time
barred.
14. If pleadings of the parties and evidence adduced by the parties and the
impugned judgment passed by the First appellate Court are considered, in light
of the above legal principles/legal provisions reiterated in aforesaid judgments,
then, in this Court's considered opinion, the findings recorded by the Appellate
Court are not liable to be interfered with in the instant case and it cannot be said
that appellate Court has ignored any material evidence or has acted on no
evidence or 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 are based on inadmissible evidence.
15. A perusal of the impugned judgments and decree passed by the First
Appellate Court 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 defendant has failed to show that how the findings of facts
recorded by the First Appellate 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 have recorded correct findings of fact.
16. For the reasons aforesaid, I find no merit in the instant second appeal.
Findings recorded by the First Appellate Court in favour of plaintiff 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 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.
17. A copy this order along with record be sent back to Courts below for
information and its compliance.
(ACHAL KUMAR PALIWAL
JUDGE
vai
