Madhya Pradesh High Court
Geeta Sahu vs Khusiram Sahu on 17 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
th
ON THE 17 OF JANUARY, 2024
SECOND APPEAL No. 1267 OF 2021
BETWEEN:-
GEETA SAHU D/O LATE SHRI RAMGOPAL
SAHU, AGED ABOUT 49 YEARS,
OCCUPATION: LABOUR SHER CHOWK
KATNI, DISTT. KATNI (MADHYA PRADESH)
SANJAY SAHU S/O LATE SHRI RAMGOPAL
SAHU OCCUPATION: LABOUR SHER
CHOWK KATNI (MADHYA PRADESH)
.....APPELLANT
(BY DR.ANUVAD SHRIVASTAVA - ADVOCATE)
AND
1. KHUSIRAM SAHU S/O LATE SHRI
RAMGOPAL SAHU, AGED ABOUT 65
YEARS, BEHIND PURANI HANUMAN
MANDIR, KATNI (MADHYA
PRADESH)
2. PURSHOTTAM SAHU S/O LATE
SHRIRAMGOPAL SAHU, AGED
ABOUT 53 YEARS, JAIN MANDIR
GALI GANDHIGANJ (MADHYA
PRADESH)
3. MUNNA SAHU S/O LATE SHRI
RAMGOPAL SAHU, AGED ABOUT 43
YEARS, SHER CHOWK KATNI
(MADHYA PRADESH)
4. RAJKUMAR SAHU S/O LATE SHRI
RAMGOPAL SAHU, AGED ABOUT 47
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 2/24/2024
4:18:52 PM
2
YEARS, SHER CHOWK KATNI
(MADHYA PRADESH)
5. SMT. LAXMI SAHU W/O SHRI
SHARDA SAHU JHARKHAD KAALRI
(CHHATTISGARH)
6. SMT. SARMANI W/O SHRI
KASHIPRASAD INFRONT OF BUS
STAND UMARIYA (MADHYA
PRADESH)
7. SMT. HIRAMATI W/O SHRI MOTILAL
NEAR DALIBABA MANDIR (MADHYA
PRADESH)
8. NAGAR PALIKA NIGAM KATNI
DISTT. KATNI (MADHYA PRADESH)
9. RAJESH SAHU S/O SHRI RAMGOPAL
SAHU, AGED ABOUT 45 YEARS, SHER
CHOWK KATNI (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
_______________________________________________________________
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 30.07.2021 passed by
5th Additional District Judge, Katni (MP) in regular Civil Appeal RCA
No.124/2018, arising out of the judgment and decree dated 04.08.2018 passed
in Civil Suit No.21-A/2015.
2. Brief facts of the case are that plaintiffs filed a suit for declaration of
title and injunction and for declaring Will dated 31.05.2008 as null and void
etc, on the ground that plaintiffs and defendants are member of joint Hindu
Family and they are real brothers and sisters. In the instant case, suit property
is ancestral property of plaintiffs as well as defendants. Original owner of
above house was father of defendants and after death of their father, suit
property got mutated in the name of mother of plaintiffs as well as defendants.
But defendants have allegedly get executed Will by mother in their favour and
she has not right to execute Will with respect to whole property.
3. Learned counsel for the appellants submits that plaintiffs as well as
defendants are real brothers and sisters and suit property was purchased by
father of plaintiffs/defendants. After death of father, suit property was inherited
by mother their and Will (Ex.P/5) was executed by mother in favour of
defendant No.1/appellant. Learned Courts below have partly decreed counter
claim filed by appellants. It is also urged that relief of partition was not sought
in the plaint but still Courts below have granted relief of partition. On above
grounds, it is urged that in the instant appeal substantial question of law as
mentioned in the appeal memo arise. Therefore, appeal be admitted for final
hearing.
4. Heard learned counsel for the appellants and perused record of the case.
5. Learned trial Court vide judgment dated 04.08.2018 passed in RCS No.21-
A/2015 partly decreed the suit as well as counter claim and appeal filed by
defendants No.1 and 2 was dismissed vide judgment dated 30.07.2021 passed in
RCA No.124/2018 and modified the judgment and decree passed by the trial
court and decreed 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/trial 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:-
"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 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 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".
9. Admittedly, plaintiffs as well as defendants are real brothers and sisters
and original owner of suit property was their father and it is an ancestral
property. Admittedly, after death of father, suit property came into name of
plaintiff's mother. In this Court's considered opinion, above mutation did not
make mother of plaintiff absolute owner of suit property and neither it can be
said that suit property was 'Stridhan' of plaintiff's mother. Hence, mother of
plaintiff as well defendants was not entitled to execute Will with respect to
whole property. She was entitled to execute Will only with respect to her share.
10. Further, admittedly plaintiffs have not sought any relief of partition and
neither any relief of partition has been given by Courts below to plaintiffs.
11. If pleadings and evidence adduced by the parties and the impugned
judgment passed by the first appellate court/trial 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/trial court are not liable to be nterfered with in the instant
case and it cannot be said that first appellate court/trial court has ignored any
material evidence or has acted on no evidence or first appellate court/trial
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.
12. A perusal of the impugned judgment and decree passed by the first
appellate court/trial 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/trial court has
legally and rightly dealt with the issues involved in the matter and has recorded
correct findings of fact.
13. For the reasons aforesaid, I find no merit in the instant second appeal.
Findings recorded by the first appellate court/trial court are fully justified by
the evidence on record. Fndings recorded by the first appellate court/trial
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, appeal is dismissed in limine.
14. 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
SM
