Madhya Pradesh High Court
Kanhaiyalal @ Kandhilal Tiwari (Now ... vs Bala Prasad Tiwari (Now Deceased) ... on 22 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 22nd OF FEBRUARY, 2024
SECOND APPEAL No. 1186 of 2023
BETWEEN:-
1. KANHAIYALAL @ KANDHILAL
TIWARI (NOW DECEASED)
THROUGH LRS. HANUMAN
PRASAD TIWARI S/O LATE
KANHAIYALAL TIWARI, AGED
ABOUT 72 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE
JAMUNIHAI TEHSIL NAGOD
DISTRICT SATNA (MADHYA
PRADESH)
2. RAMANUJ TIWARI S/O LATE
KANHAIYALAL TIWARI, AGED
ABOUT 66 YEARS, OCCUPATION:
AGRICULTURIST AND SERVICE
R/O VILLAGE JAMUNIHAI TEHSIL
NAGOD DISTRICT SATNA
(MADHYA PRADESH)
3. CHANDRABHUSHAN TIWARI S/O
LATE KANHAIYALAL TIWARI,
AGED ABOUT 61 YEARS,
OCCUPATION: AGRICULTURIST
AND SERVICE R/O VILLAGE
JAMUNIHAI TEHSIL NAGOD
DISTRICT SATNA (MADHYA
PRADESH)
4. BRIJBHUSHAN TIWARI S/O LATE
KANHAIYALAL TIWARI, AGED
ABOUT 53 YEARS, OCCUPATION:
AGRICULTURIST AND SERVICE
R/O VILLAGE JAMUNIHAI TEHSIL
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:03:03 PM
2
NAGOD DISTRICT SATNA
(MADHYA PRADESH)
5. SAMANTI DEVI @ SUNITA DEVI
D/O LATE KANHAIYALAL TIWARI
W/O SHRI MAHESHKANT MISHRA
R/O UCHEHRA, TEHSIL
UCHEHRA, DISTRICT SATNA
(MADHYA PRADESH)
.....APPELLANTS
(BY R.P. KHARE - ADVOCATE)
AND
1. BALA PRASAD TIWARI (NOW
DECEASED) THROUGH LRS.
DAYARAM TRIPATHI S/O LATE BALA
PRASAD TRIPATHI, AGED ABOUT 75
YEARS, R/O AKASH GANGA NAGAR
PATERI SATNA DISTRICT SATNA
(MADHYA PRADESH)
2. DAYARAM TRIPATHI S/O LATE BALA
PRASAD TRIPATHI, AGED ABOUT 75
YEARS, R/O AKASH GANGA NAGAR
PATERI SATNA DISTRICT SATNA
(MADHYA PRADESH)
3. SEWARAM TRIPATHI S/O LATE BALA
PRASAD TRIPATHI, AGED ABOUT 73
YEARS, R/O HOUSE NO 6, RAJNI
GANDHA, SILPI UPWAN, REWA
(MADHYA PRADESH)
4. SMT. GULAB BAI D/O LATE BALA
PRASAD TRIPATHI W/O SHRI
NARENDRA PANDEY, AGED ABOUT 70
YEARS, R/O VILLAGE AND POST
MURHA, TEHSIL RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
5. RAMSOHAWAN TIWARI(DEAD) S/O NOT
MENTION NOT MENTION (MADHYA
PRADESH)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:03:03 PM
3
6. RAMPAD TIWARI S/O LATE MAHESH
PRASAD TIWARI, AGED ABOUT 73
YEARS, R/O VILLAGE JAMUNIHAI,
TEHSIL NAGOD, DISTRICT SATNA
(MADHYA PRADESH)
7. SURESH TIWARI S/O LATE
RAMSOHAWAN TIWARI, AGED ABOUT 53
YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE JAMUNIHAI, TEHSIL
NAGOD, DISTRICT SATNA (MADHYA
PRADESH)
8. RAKESH KUMAR TIWARI S/O LATE
RAMSOHAWAN TIWARI, AGED ABOUT 47
YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE JAMUNIHAI, TEHSIL
NAGOD, DISTRICT SATNA (MADHYA
PRADESH)
9. RAJA BETI(DEAD) D/O NOT MENTION
NOT MENTION (MADHYA PRADESH)
10. CHANDA BAI D/O JAGESHWAR PRASAD
W/O SHRI VISHNUDUTT CHATURVEDI,
AGED ABOUT 75 YEARS, R/O VILLAGE
SOHAWAL, POST SOHAWAL, TEHSIL
RAGHURAJNAGAR, DISTRICT SATNA
(MADHYA PRADESH)
11. RAMSAKHI S/O JAGESHWAR PRASAD
W/O SHRI VIDYANARAYAN MISHRA,
AGED ABOUT 59 YEARS, R/O VILLAGE
GURHWA, TEHSIL RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
12. RAMNIWAS MISHRA(DEAD) S/O NOT
MENTION NOT MENTION (MADHYA
PRADESH)
13. BITTI BAI D/O LATE SHRI RAMJI W/O
SHRI RAMKHELAWAN PANDEY, AGED
ABOUT 58 YEARS, R/O NAGOD, TEHSIL
NAGOD,DISTRICT SATNA (MADHYA
PRADESH)
14. STATE OF M.P., THROUGH COLLECTOR,
SATNA DISTRICT SATNA (MADHYA
PRADESH)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:03:03 PM
4
.....RESPONDENTS
(BY SHRI YOGESH BAGHEL - ADVOCATE)
_______________________________________________________________
This appeal coming on for admission 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 20.03.2023 passed by
Second District Judge, Nagod, District-Satna in regular Civil Suit No.02-A/16,
arising out of the judgment and decree dated 28.11.2015 passed by Ist Civil
Judge, Class-II Nagod in Civil Suit No.02-A/2001
2. Brief facts of the case are that plaintiffs filed suit for declaration of title,
partition and delivery of possession on the ground that Jageshwar Prasad was
original owner of the suit property. Plaintiff received suit property vide
registered partition deed dated 27.01.81. Jageshwar Prasad never executed any
sale deed in on 10.07.1974. Sale deed dated 10.07.1974 is fake and forged. It
is also averred in the plaint that Jageshwar Prasad did not execute any Will on
21.01.1980 in favour of defendant No.9
3. Learned counsel for the appellants/plaintiffs submits that plaintiffs
received suit property vide registered partition deed dated (Ex.P/9/P/9-A). Sale
deed dated 10.07.74 (Ex.D/63 and D/64) have not been executed by Jageshwar
Prasad and they are fake and forged. To prove that above sale deeds are forged
and have not executed by Jageshwar, appellant filed an application under
Section 45 of the Evidence Act for examining signature of Jageshwar Prasad
from sale deed as well as registered partition deed but the same has been
dismissed by the trial Court. Therefore, appellant could not establish that sale
deed does not contain signature of Jageshwar Prasad. It is also urged that
Ex.P/9 and P/9-A are admitted documents and there is no dispute with respect
to them. Further, it is also urged that no mutation proceedings have been
initiated on the basis of sale deed Ex.D/63 and D/64. It also show that
Jageshwar did not execute sale deed in favour of defendant. On above
grounds, it is urged that in the instant appeal, substantial question of law as
mentioned in the appeal memo, arises for determination. Therefore, appeal be
admitted for final hearing.
4. Learned counsel for the respondent/defendant has supported the
judgment passed by the trial Court.
5. Heard and perused the record of the case.
6. Learned trial Court vide judgment dated 28.11.2015 passed in RCS No. 2-
A/2001 dismissed the suit filed by the plaintiff and appeal filed by plaintiff was
also dismissed by appellate Court vide judgment dated 20.03.2023 passed in
7. Therefore, now question arises as to whether this Court can interfere with the
findings of facts arrived at by the Courts below. In this connection, I would like
to refer to law laid down by 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. During submissions, learned counsel for the appellant/plaintiffs has not
challenged/raised any objections on Will (Ex.D/1) dated 21.01.80.
11. So far as sale deed dated 10.07.74 (Ex.D/63 and D/64) is concerned, above
sale deeds are registered document. There is nothing on record to show that
above sale deeds were got executed by impersonating Jageshwar Prasad and
they were not executed by Jageshwar Prasad. Learned counsel for the appellant
has submitted that his application under Section 45 of the Evidence Act has
been dismissed by the trial Court, therefore, they could not prove that registered
sale deed Ex.D/63 and 64 does not contain signature of Jageshwar Prasad.
12. Perusal of order-sheet dated 17.11.2015 reveals that trial Court has
dismissed plaintiff's application under Order 26 Rule 10-A CPC read with
Section 45 of Evidence Act by a well reasoned order and it cannot be said that
above order passed by trial Court is erroneous or illegal.
13. 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 interfered 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 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.
14. A perusal of the impugned judgments and decree passed by the first
appellate court/trial court reveals 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 have recorded
correct findings of fact.
15. 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. Findings 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.
16. 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
vai
