Madhya Pradesh High Court

Bade Prajapati vs The State Of Madhya Pradesh on 23 February, 2024

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

ON THE 23rd OF FEBRUARY, 2024

SECOND APPEAL No. 1029 of 2014

BETWEEN:-

1. BADE PRAJAPATI S/O LATE
SHRI SOORA PRAJAPATI, AGED
ABOUT 57 YEARS, VILLAGE
CHHATI BAMHOURI, TEHSIL
CHANDLA, DISTT.
CHHATARPUR, M.P. (MADHYA
PRADESH)
2. BACHCHULAI S/O LATE SHRI
SOORA PRAJAPATI, AGED
ABOUT 52 YEARS, VILLAGE
CHHATI BAMHOURI, TEHSIL
CHANDLA, DISTT.
CHHATARPUR, M.P. (MADHYA
PRADESH)
3. GIRJA PRAJAPATI W/O LATE
SHRI SOORA PRAJAPATI, AGED
ABOUT 76 YEARS, VILLAGE
CHHATI BAMHOURI, TEHSIL
CHANDLA, DISTT.
CHHATARPUR, M.P. (MADHYA
PRADESH)
4. QYAMUDDEN S/O IMAMI
KHAN, AGED ABOUT 57 YEARS,
VILLAGE CHHATI BAMHOURI,
TEHSIL CHANDLA, DISTT.
CHHATARPUR, M.P. (MADHYA
PRADESH)
.....APPELLANTS

(BY SHRI MANOJ KUMAR MISHRA - ADVOCATE)

Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:03:03 PM
2

AND

1. THE STATE OF MADHYA PRADESH
COLLECTOR / DISTRICT
MAGISTRATE CHHATARPUR
(MADHYA PRADESH)

2. DIVISIONAL FOREST OFFICER
FOREST DEPARTMENT DISTT
CHHATARPUR M.P (MADHYA
PRADESH)
3. VALMIK SHUKLA, DEPUTY RANGER
FOREST DEPARTMENT RANGE
CHANDLA DISTT CHHATARPUR M.P
(MADHYA PRADESH)
4. RAMKUMAR ANURAGI, FOREST
GUARD FOREST DEPARTMENT RANGE
CHANDLA DISTT CHHATARPUR M.P
(MADHYA PRADESH)
5. KAMTU S/O BHAWANIDEEN RAJPOOT,
AGED ABOUT 55 YEARS, VILLAGE
CHHATI BAMHOURI, TEHSIL
CHANDLA, DISTT. CHHATARPUR, M.P.
(MADHYA PRADESH)
6. KAMALIYA W/O BHAWANIDEEN
RAJOOT VILLAGE CHHATI
BAMHOURI, TEHSIL CHANDLA, DISTT.
CHHATARPUR, M.P. (MADHYA
PRADESH)
7. RAMDEO SHUKLA S/O SHR PRESHNI
SHUKLA, AGED ABOUT 42 YEARS,
VILLAGE CHHATI BAMHOURI, TEHSIL
CHANDLA, DISTT. CHHATARPUR, M.P.
(MADHYA PRADESH)
...RESPONDENTS
( BY SHRI GAURAV PATHAK - PANEL
LAWYER FOR THE RESPONDENT/STATE)
_______________________________________________________________
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 30.07.2014 passed by First

Additional District Judge, Chhatarpur (MP) in Regular Civil Appeal No.18A/13, arising out of the judgment and decree dated 18.03.2013 passed in Civil Suit No.24A/2012 by First Civil Judge, Class-I Laundi District-Chhatarpur.

2. Brief facts of the case are that plaintiffs filed a suit for declaration of title and permanent injunction on the ground that suit property is plaintiff's ancestral property and/self acquired property and they are owner and in possession of suit property. Suit properties have never being Forest Department properties but now, Forest Department wants to take possession of suit property. Disputed properties are situated outside Forest Department limit/ boundaries. Suit property is under cultivation since last 60-70 years and plaintiffs are in possession thereof since last 40 years. But now, defendants intend to take possession of suit property forcibly.

3. Learned counsel for the appellants/plaintiffs submits that they are owner and are in possession of suit property. They have purchased the suit property by registered sale deed (Annexure P/6). From the revenue records, especially Khasra filed by the plaintiffs, it is established that plaintiffs have been in possession of suit property since thereof and have been cultivating the same. It is also urged that in Kharsa, crops have been shown against relevant Khasra number. There is nothing on record to prove that disputed land ever belonged to Government or Forest Department. Documents filed by Forest Department have been manipulated just to show that property belong to Forest Department. Learned counsel for the appellants, after referring to deposition of defendant witness B.L. Verma submits that this witness has not been able to state specifically about the land. 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 Panel Lawyer for the respondent/State submits that learned trial Court as well as first appellate Court has rightly dismissed plaintiff's suit/appeal and findings recorded by them cannot be said to be erroneous. Hence, no

interference is required in the same. Therefore, appeal filed by the appellant be dismissed.

5. Heard and perused the record of the case.

6. Learned trial Court vide judgment dated 18.03.2013 passed in RCS No. 24- A/2012 dismissed the suit filed by the plaintiff and appellate Court also dismissed the appeal filed by plaintiff vide judgment dated 30.07.2014 passed in Civil Appeal No.18-A/2013.

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. I have gone through the evidence as well as plaint averments and assessed and examined them in the light of submissions of learned counsel for the appellant.

With respect to submissions of learned counsel for the appellant, depositions of plaintiffs witnesses required to be referred. In this connection, plaintiff's witness Qyamuddeen's, who he is also plaintiff, paras-10,12 and 13 of cross-examination are important and from cross-examination of Qyamuddeen, especially, from above paras, it is more than evident that disputed properties are situated within the limits/boundaries/(Monaray). Plaintiff's witness Kamaliya Bai has also deposed similarly in her cross-examination, especially, in para-11 of her cross-examination. Similarly, other plaintiff's witness Chhotta has also deposed in para-11 of his cross-examination.

11. Thus, from plaintiff's evidence itself, it appears that disputed property is Forest land and it is within the limits/boundaries of Forest Department land.

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