Madhya Pradesh High Court
Sushila vs Gokuli 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. 88 OF 2022
BETWEEN:-
1. SUSHILA W/O LATE SHESHRAO BELSARE,
AGED ABOUT 65 YEARS, OCCUPATION:
HOUSEWIFE BERDI, TEH.SAUNSAR
(MADHYA PRADESH)
2. PRAMOD S/O LATE SHESHRAO BELSARE,
AGED ABOUT 32 YEARS, OCCUPATION:
NILL R/O BERDI, TAHSIL SAUNSAR, DISTT.
CHIINDWARA (MADHYA PRADESH)
3. VINOD S/O LATE SHESHRAO BELSARE,
AGED ABOUT 30 YEARS, OCCUPATION:
NILL R/O BERDI, TAHSIL SAUNSAR, DISTT.
CHIINDWARA (MADHYA PRADESH)
4. PRAMILA S/O LATE SHESHRAO BELSARE,
AGED ABOUT 45 YEARS, OCCUPATION:
NILL R/O BETUL PATANSAWANGI, TAHSIL
SAVNER, DISTT NAGPUR (MAHARASHTRA)
5. JAYSHREE S/O LATE SHESHRAO BELSARE,
AGED ABOUT 35 YEARS, OCCUPATION:
NILL R/O KHUBALA, TAHSIL SAVNER,
DISTT. NAGPUR (MAHARASHTRA)
6. SHANTARAM S/O LATE CHINTAMAN
BELSARE, AGED ABOUT 30 YEARS,
OCCUPATION: NILL R/O BERDI, TAHSIL
SAUNSAR, DISTT. CHIINDWARA (MADHYA
PRADESH)
.....APPELLANTS
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 2/24/2024
4:18:52 PM
2
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. GOKULI D/O MORBA BELSARE,
AGED ABOUT 53 YEARS, KABAR
PIPLA, TEH.SAUNSAR (MADHYA
PRADESH)
2. MANJULABAI W/O MORBA
MELSARE, AGED ABOUT 83 YEARS,
OCCUPATION: NILL R/O KABAR
PIPLA TAHSIL SAUSAR, DISTT.
CHHINDWARA (MADHYA PRADESH)
3. BHAURAO S/O MORBA BELSARE,
AGED ABOUT 68 YEARS,
OCCUPATION: NILL R/O TIGAON
TAHSIL PANDURNA, DISTT.
CHHINDWARA (MADHYA PRADESH)
4. BEBIBAI W/O PANDURAND
BELSARE, AGED ABOUT 43 YEARS,
OCCUPATION: NILL R/O
UBHEGAON TAHSIL BICHUA, DISTT.
CHHINDEARE (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 30.11.2021 passed by
Additional District Judge to the Court of District Judge, Saunsar, District
Chhindwara (MP) in regular Civil Appeal RCA No.59/2016, arising out of the
judgment and decree dated 29.01.2016 passed in Civil Suit No.119-A/2013.
2. Brief facts of the case are that plaintiffs filed a suit for deceleration of
title and permanent injunction, on the ground that they are owner and in
possession of suit property and they are cultivating suit property since last 40
years peacefully. Plaintiffs as well as defendants have been in possession of
suit property as per earlier partition and this partition was later on reduced
into writing dated 14.05.1999. Therefore, defendants are stopped from again
filing suit for partition. Plaintiffs have received suit property in the partition
effected between plaintiff and defendant.
3. Learned counsel for the appellants submits that Vithoba was original
owner of suit property. Vithoba has three sons, namely, Chintaman, Daulat and
Morba. Plaintiffs are sons of Chinaman whereas defendants No.1 to 3 are
sons/wife on Morba and remaining are successor of Daulat. On 14.05.1999
written partition took place between Chintaman, Daulat and Morba and in
above partition, plaintiffs got the suit property. It is also urged that on the one
hand, trial Court dismissed plaintiff's application under Order 11 Rule 12 of
CPC and application under Section 65 of Evidence Act . On the other hand, trial
Court also concluded that plaintiffs failed to prove partition dated 14.05.1999. It
is also urged that nature of documents/construction of documents is a substantial
question of law. In this connections, he has relied upon P.Chandrasekharan
Vs. S.Kanakarajan, reported in (2007) 5 SCC 669. It is also urged that
Appellate Court has wrongly dismissed plaintiff's application under Order 41
Rule 27 of CPC. Learned counsel for appellants, after relying on M.B.Ramesh
(Dead) by Lrs. Vs. K.M.Veeraje URS (Dead) by Lrs. And anothers, reported
in (2013) 7 SCC 490, submits that appellate Court has held that plaintiff is in
joint possession of suit property along with defendant. Therefore, injunction
should have been granted in favour of plaintiffs. 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 parties and perused record of the case.
5. Learned trial Court vide judgment dated 29.01.2016 in RCS No.119-A/2013
dismissed the suit filed by the plaintiffs and appeal filed by the
appellant/plaintiffs was also dismissed by appellate Court vide judgment dated
30.11.2021 passed in Civil Appeal No.59/2016.
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, Vithoba was original owner of suit property and Vidhoba
have three sons, Chintaman, Daulat and Morba. Plaintiffs are sons of Chintaman
whereas defendants No.1 and 2 are sons/wife of Morba and defendants No. 3 to
5 are successors of Daulat.
10. Sole issue involved in the case is that whether any partition was effected
between the plaintiff and defendant. Perusal of plaint averments, especially para
2A of plaint, reveals that plaintiff as well as defendant are in possession of suit
property and they are cultivating the same in accordance with "previous
partition". But no date/year of this "previous partition" has been mentioned in
the plaint. Thereafter, it is pleaded in the plaint that partition deed (Yadast
Suchi) was prepared on 14.05.1999 but in photocopy of this documents also, it
is not mentioned as to when previous partition took place between plaintiff and
defendant.
12. Further, it is also evident from the record of the case that neither plaintiff
nor defendant has initiated mutation proceedings and got their names mutated in
accordance with "previous partition" especially plaintiffs. Plaintiffs have not
explained that if partition took place between the parties, then why did not they
get their names mutated on respective properties received in the partition.
13. Hence, in view of above even if plaintiff's application for secondary
evidence was allowed, then, it would not help plaintiff in proving its case.
Further perusal of Appellate Court's judgment reveal that Appellate Court has
rightly dismissed appellant's application under Order 41 Rule 27 of CPC.
Futher, as it appear that plaintiff/defendant are in joint possession of suit
property and there is nothing on record to show that defendants are illegally
interfering in plaintiffs joint possession in suit property or intends to disposes
plaintiff's from joint suit property illegal. Hence, no injunction can be granted
in appellant's favour.
14. 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.
15. 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.
16. 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.
17. 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
