Madhya Pradesh High Court
Ramnarayan vs Chouhan Singh 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 22 nd OF FEBRUARY, 2024
SECOND APPEAL No. 1377 of 2022
BETWEEN:-
1. RAMNARAYAN S/O LATE MITTU LAL, AGED
ABOUT 62 YEARS, R/O VILLAGE KHERI SILGENA,
POST NANDNER TEHSIL BUDNI DISTRICT
SEHORE (MADHYA PRADESH)
2. BHAGVAT S/O LATE MITTU LAL, AGED ABOUT 60
Y E A R S , OCCUPATION: AGRICULTURIST R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
3. MUKESH S/O LATE MITTU LAL, AGED ABOUT 56
Y E A R S , OCCUPATION: AGRICULTURIST R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. CHOUHAN SINGH S/O LATE SHRI KAMAL SINGH
R/O VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
2. ATAR SINGH S/O LATE SURAT SINGH R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
3. HOSIYAR SINGH S/O LATE SURAT SINGH R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
4. DEVI SINGH S/O LATE SURAT SINGH R/O VILLAGE
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 13-03-2024
10:49:25
2
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
5. GULLA SINGH S/O DEVI SINGH R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
6. GULLAN SINGH S/O DANAN LAL R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
7. BHAVANI SINGH S/O MADAN LAL R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
8. DHAN SINGH S/O BHAVANI SINGH R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
9. SUBHAM SINGH S/O BHAVANI SINGH R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
10. RAJESH SINGH S/O HOSIYAR SINGH R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
11. JITENDRA SINGH S/O HOSIYAR SINGH R/O
VILLAGE KHERI SILGENA, POST NANDNER
TEHSIL BUDNI DISTRICT SEHORE (MADHYA
PRADESH)
12. GENDA LAL S/O KAMAL SINGH R/O VILLAGE
KHERI SILGENA, POST NANDNER TEHSIL BUDNI
DISTRICT SEHORE (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been filed by the appellants under Section 100 of
CPC against the judgment and decree dated 25.2.2022 passed by District
Judge, Budni in RCA No.3/2021 arising out of judgment dated 18.3.2021
passed by Civil Judge, Class-I, Budni, District Sehore in Regular Civil Suit
No.8A/2014.
2. Brief facts of the case are that plaintiffs filed a suit for permanent
injunction on the ground that in oral partition, plaintiffs got the plot measuring
30 x 56 sq.ft. (1680 sq.ft.) and they have constructed a house on part of the
plot and they are in exclusive possession over the plot and sought injunction to
the effect that defendants be restrained from raising any constructions on the
disputed residential land etc.
3. Learned counsel for the appellants submits that the suit property was
joint property and appellants had got the plot area measuring 30x56 sq.ft.in oral
partition and they are in peaceful possession. They have also constructed a
house on part of the plot. Trial Court has also concluded that plaintiffs are in
possession of the suit property but has dismissed the plaintiffs suit for
injunction on the ground that suit property is of the State Government and
therefore, no relief can be granted with regard to the possession of the plaintiffs.
Plaintiffs have clearly established that the suit property is their property and
injunction should have been granted in their favour and defendants are illegally
trying to dispossess the plaintiffs from their possession without any due
process of law and are interfering in their possession illegally. On above
grounds, it is urged that substantial questions of law arises in this appeal, as
mentioned in the appeal memo and this appeal be admitted for final hearing.
4. Heard and perused the record of the case.
5 . Learned trial Court vide judgment dated 18.03.2021 passed in Civil
Suit No.8A/2014 dismissed the plaintiffs suit and appellate Court vide judgment
dated 25.2.2022 passed in RCA No.03/2021 dismissed the plaintiff appeal.
6. 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: -
3 3 (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
o f 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
o n 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
t h e 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
b a s e d 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. Perusal of plaint averments reveals that as per plaint averments, suit
property is part of survey nos.238, 244, 249, 290, 291, 292, 293, 294 and 296
measuring 0.943 hectares. It is also pleaded in the plaint that out of above land,
plaintiffs as well as defendants' ancestor Madanlal and was owner and in
possession of approximately 24060 sq. ft..for residential purpose. After death
of Madanlal, plaintiffs as well as defendants have partitioned above land area ie.
24060 sq.ft. amongst themselves. Perusal of case file reveals that plaintiffs have
filed Khasra Ex.P/1 for the year, 2013-14 wherein survey nos.238, 244, 249,
290, 291, 292, 293, 294 & 296 area 0.943 hectare are recorded as Government
land. Plaintiffs have not filed any revenue record/documents to prove that
plaintiffs ancestor Madanlal (dead) /they are the owner of above survey
numbers and are in possession thereof. There is no documentary evidence on
record with respect to ownership of plaintiffs ancestor Madanlal over the suit
property. Further, it is also not clear from record of the case that dispute land is
part of which survey numbers/survey numbers as mentioned in the preceding
paras. Further plaintiffs have not filed present suit against the State Government
and State Government is not party to the present suit.
10. 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 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.
11. 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.
12. 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.
13. 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
sh
