Guman Singh vs Narayan Singh
2024 Latest Caselaw 4008 MP

Madhya Pradesh High Court

Guman Singh vs Narayan Singh on 12 February, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

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                                                            S.A. No. 944/2021


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                ON THE 12th OF FEBRUARY, 2024

                 SECOND APPEAL No. 944 of 2021

BETWEEN:-
GUMAN SINGH S/O BAPUSINGH, AGED ABOUT 50 YEARS, VILLAGE
DHABLA TEH. BADOD (MADHYA PRADESH)
                                                        .....APPELLANT
(SHRI GAGAN PARASHAR, LEARNED COUNSEL FOR THE APPELLANT.)

AND
   NARAYAN SINGH S/O KANJI, AGED ABOUT 60 YEARS, VILL-
1.
   DHABLA TEH. BADOD (MADHYA PRADESH)
   MADAN SINGH S/O KANJI, AGED ABOUT 58 YEARS, VILLAGE
2. DHABLA, TEHSIL BADOD DIST AGAR MALWA (MADHYA
   PRADESH)
   M AND B SWITCH GEARS LIMITED SURVEY NO. 211/1, OPPOSITE
3. SECTOR C A AND MENTAL MAIN INDUSTRIAL AREA SANWER
   ROAD INDORE (MADHYA PRADESH)
   STATE OF MADHYA PRADESH THR COLLECTOR AGAR MALWA
4.
   (MADHYA PRADESH)
                                                     .....RESPONDENTS
(MS. PRATIBHA VERMA, LEARNED COUNSEL                         FOR      THE
RESPONDENTS NO.1 AND 2.)
(SHRI RAUNAK CHOUKSE, LEARNED COUNSEL                         FOR     THE
RESPONDENT NO.3.)


      This appeal coming on for hearing on admission this day, the
court passed the following:
                                ORDER

1. This second appeal is filed by the plaintiff. The plaintiff filed the

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suit for declaration of title challenging the sale-deed dated 4.2.2014 executed by defendants No.1 and 2 in favour of defendant No.3 in respect of land bearing Survey No. 26 area 1.050 Hect. ("suit land" for short) situated at Dhabla Sondhya, Tehsil Barod, District Agar Malwa.

The plaintiff claimed 3/4th share in the property and according to him, defendants No.1 and 2 owners of only 1/4th share and without partition, they have illegal sold the entire land to defendant No.3 vide registered sale-deed which is liable to be declared to be void.

2. After summons, defendants No.1 and 2 filed their written statement by submitting that Nagji had four sons viz. Kanji, Bapulal, Sabsingh and Sardarsingh. Kanji died leaving behind Narayan Singh and Madan Singh; Bapulal died leaving behind Gumansingh and Asanbai; Sabsingh died leaving behind Narayansingh; and Sardarsingh is alive. A partition had already taken place during life time of Nagji took in the year 2003 between four sons which was recorded by the Tehsildar and thereafter the all the family members are in possession of their respective shares in the land. The plaintiff already got his share in the entire family property vide Exh. D/1. The defendants also raised an objection that virtually the suit suffers from non-joinder of necessary parties. At present mother and sister of the plaintiff are alive and they have not been impleaded as plaintiff or defendant, therefore, the suit is liable to be dismissed. Defendant No.3 also filed the written statement on the same line opposing the plaint allegations.

3. On the basis of pleading, the learned Civil Judge framed five issues for adjudication. The parties were allowed to adduce their evidence. After appreciating the evidence came on record learned Civil judge has held that the plaintiff's claim is based only on certain entries

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in Kishtabandi Khatauni (Exh. P/1) which cannot be treated as title document. The plaintiff himself filed the document relating the partition (Exh. P/) and the same has also been exhibited by the defendants as Exh. D/2. By the aforesaid document, the partition took place and the land bearing Survey Nos. 26 area 1.050 Hect. 827 area 0.18 Hect. Came into the share of Narayan Singh, Madan Singh, sons of Kanji. The plaintiff had a knowledge about the partition in the year 2003. He remained silent and filed the suit only when the defendants No.1 and 2 executed the sale-deed in favour of defendant No.3. Learned Civil Judge also found that the suit suffers from non-joinder of necessary parties. The plaintiff alone cannot claim share in the ancestral property without impleading his mother and daughter as party to the suit. Vide judgment dated 1.8.2015, learned Civil Judge has dismissed the suit.

4. Being aggrieved by the aforesaid judgment and decree, the plaintiff filed appeal and vide judgment dated 27.1.2020, learned 2 nd Additional District Judge, Agar, District Shajapur dismissed the appeal and affirmed the findings recorded by the learned Civil Judge. Hence, the present second appeal before this Court.

5. The appellant/plaintiff has proposed the following substantial questions of law :

"(i) Whether the learned judges of the courts below have erred in overlooking the admission made by respondent No.1 that appellant has ¼ share in their joint properties?

(ii) Whether the learned judges of the courts below have erred in not declaring the sale deed dated 04/02/2014 as null and void as it has been executed without getting the individual shares ascertained?

(iii) Whether the learned judges of the courts below have erred in not holding the sale deed dated 04/02/2014 as null and void as it

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was executed for more than ¼ share in the suit property?

(iv) Whether the findings of the first appellate court stand vitiated on account of misreading of material evidence and therefore are illegal and perverse?"

6. Learned counsel for the appellant submits that defendants have admitted 1/4th share in the ancestral property, therefore,the trial Court ought to have granted 1/4th in the suit land in view of the aforesaid admission of the defendants.

7. Learned counsel for the respondents submit that the defendants had admitted 1/4th share in the entire ancestral property which was partitioned and not 1/4th share in the suit land. By way of partition in the year 2003 the suit land came into the share of the defendants in which the plaintiff has no share. The entire suit is based on some entries made in Kishtabandi Khatauni of 2011. There could be a mistake in the revenue entries, therefore, the same are not treated as title document. Such entries were corrected u/s. 115 of the M.P. Land Revenue Code. But so far as partition held in the year 2003 vide Exh. P/1 and D/2 whereby the suit land came into the share of defendants is concerned, that is not in dispute between the plaintiff and the defendants. Therefore, the entire suit and the appeal are misconceived. Both the Courts below have rightly dismissed the suit and the appeal. This appeal has no merit and no substantial question of law is involved in this appeal and the same deserves to be dismissed.

8. It is settled law that the revenue entries do not confer any title. In view of the above, I do not find any question of law much less substantial question of law is involved in this appeal. Even otherwise, the Apex Court in the case of Kondiba Dagadu Kadam v/s Savitribai

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Sopan Gujar reported in (1999) 3 SCC 722 has held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

7. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830] held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

9. In case of Laxmidevamma v/s Ranganath reported in (2015) 4

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SCC 264 again the Apex court has held as under:-

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have fullfledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."

10. Recently, the Apex Court in case of Adiveppa & Others v/s Bhimappa & Others reported in (2017) 9 SCC 586 has held as under:

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."

11. In view of the above, this Second Appeal stands dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2024.02.15 16:30:00 +05'30'