Madhya Pradesh High Court
Ramgopal Died Ramlal vs Ramswaroop (Died) Rampal on 29 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
SECOND APPEAL No. 992 of 2023
BETWEEN:-
1. RAMGOPAL DIED RAMLAL S/O
LATE RAMGOPAL, AGED ABOUT 64
YEARS, OCCUPATION:
AGRICULTURIST R/O GRAM
PATHRI TEHSIL SIRMAUR
DISTRICT REWA (MADHYA
PRADESH)
2. SHYAMLAL S/O LATE RAMGOPAL, AGED
ABOUT 58 YEARS, OCCUPATION:
AGRICULTURIST R/O GRAM PATHRI
TEHSIL SIRMAUR DISTRICT REWA
(MADHYA PRADESH)
3. DEVENDRA KUMAR S/O LATE RAMGOPAL,
AGED ABOUT 54 YEARS, OCCUPATION:
AGRICULTURIST R/O GRAM PATHRI
TEHSIL SIRMAUR DISTRICT REWA
(MADHYA PRADESH)
3. VIDYAVATI W/O LATE RAMGOPAL W/O
SURYABHAN KUSHWAHA, AGED ABOUT 51
YEARS, OCCUPATION: AGRICULTURIST
R/O GRAM BADRAI(LALPA), TEHSUL
HUJOOR, DISTRICT REWA (MADHYA
PRADESH)
4. LILAWATI D/O LATE RAMGOPAL W/O
RAMGOPAL KACHHI, AGED ABOUT 82
YEARS, R/O GRAM PATHRI TEHSIL
SIRMAUR DISTRICT REWA (MADHYA
PRADESH)
.....APPELLANTS
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
7:56:42 PM
2
(BY SHRI MANOJ KUSHWAHA - ADVOCATE)
AND
1. RAMSWAROOP (DIED) RAMPAL S/O
LATE RAMSWAROOP, AGED ABOUT
42 YEARS, OCCUPATION:
AGRICULTURIST R/O MIG- 08
HEDGEWAR NAGAR REAW TEHSIL
HUJOOR DISTRICT REWA (MADHYA
PRADESH)
2. HEERALAL S/O LATE
RAMSWAROOP, AGED ABOUT 57
YEARS, OCCUPATION:
AGRICULTURIST R/O MIG- 08
HEDGEWAR NAGAR REAW TEHSIL
HUJOOR DISTRICT REWA (MADHYA
PRADESH)
3. MOTILAL S/O LATE RAMSWAROOP,
AGED ABOUT 58 YEARS,
OCCUPATION: AGRICULTURIST R/O
MIG- 08 HEDGEWAR NAGAR REAW
TEHSIL HUJOOR DISTRICT REWA
(MADHYA PRADESH)
4. GULLI @ KAMLA DEVI(DEAD)
THROUGH LEGAL
REPRESENTATIVES DR. LALMANI
KUSHWAHA S/O BHAGWANDEEN
KUSHWAHA, AGED ABOUT 53
YEARS, OCCUPATION:
AGRICULTURIST R/O MIG- 08
HEDGEWAR NAGAR REAW TEHSIL
HUJOOR DISTRICT REWA (MADHYA
PRADESH)
5. VIKAS KUSHWAHA S/O LALMANI
KUSHWAHA, AGED ABOUT 46
YEARS, OCCUPATION:
AGRICULTURIST R/O MIG- 08
HEDGEWAR NAGAR REAW TEHSIL
HUJOOR DISTRICT REWA (MADHYA
PRADESH)
6. SAURABH KUSHWAHA S/O
LALMANI, AGED ABOUT 34 YEARS,
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
7:56:42 PM
3
R/O MIG- 08 HEDGEWAR NAGAR
REAW TEHSIL HUJOOR DISTRICT
REWA (MADHYA PRADESH)
.....RESPONDENTS
(NONE )
---------------------------------------------------------------------------------------------------
RESERVED ON : 05.02.2024.
PRONOUNCED ON : 29.02.2024
_______________________________________________________________
This appeal having been heard and reserved for orders, coming on for
pronouncement on 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 13.01.2023 passed by
Additional District,Judge, Sirmour, Rewa, in RCA No.700039/2018, arising out
of the judgment and decree dated 29.09.2014 passed in Civil Suit
No.163A/2012.
2. Brief facts of the case are that appellant/plaintiff filed a suit for declaration
of title, injunction and for damages on the ground that original owner of suit
property was plaintiff's father Rameshwar and Rameshwar had purchased suit
property on 15.07.1950 and thereafter, he was in exclusive possession of suit
property. There was no share of Bhola or his successor in the suit property.
3. Learned trial Court vide judgment dated 29.09.2014 passed in RCS No.163-
A/12 dismissed the suit filed by plaintiff and Appellate Court vide judgment
dated 13.01.2023 passed in RCA No.700049/2018 dismissed the appeal filed by
appellant.
4. Learned counsel for the appellant submits that property of more than
Rs.100/- cannot be transferred without any registered document. Tahsildar
wrongfully mutated defendants name over suit property. It is also urged that in
year 1983-84, defendants forcibly dispossessed plaintiff from part of suit
property which was purchased by plaintiff's father vide sale deed (Ex.P/1).
Hence, it is prayed that substantial questions of law as mentioned in the appeal
memo, arise in the case for determination, hence, this appeal be admitted for
final hearing.
5. I have heard learned counsel for the appellant and have perused the records
of Courts below.
6. It is apparent from record of Courts below that it is a case of concurrent
findings of fact ie. trial Court dismissed the suit and appellate Court dismissed
the appeal filed by plaintiff and counter claim filed by defendants was also
dismissed but no appeal was filed by defendants.
7. 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:-
"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. As per plaintiff's case, father of plaintiff i.e. Rameshwar purchased Survey
Nos.713, 714 and 716 on 15.07.1950 after partition from Bhola, Bhurai and
Dhamodar. It is also averred in the plaint that suit property was never
partitioned between Rameshwar or Bhola. Evidently, there is no specific
evidence with respect to partition between Rameshwar and his brothers. It is
also evident from plaint averments itself that in the year 1982, Ramswaroop's
name was mutated over suit property and this order was challenged by plaintiff.
As per para-11 of plaint averment, defendant is in illegal possession of suit
property since 83-84. But present suit has been filed on 22.01.1994, therefore
plaintiff's present suit is clearly time barred.
11. Further, perusal of para-12, 17, 19 and 20 of trial Court judgment reveal
that trial Court has taken into consideration and discussed all the evidence,
especially, documents filed by plaintiff and thereafter has returned findings. It is
a case concurrent findings of facts.
12. If pleadings of the parties and evidence adduced by the parties and the
impugned judgments passed by the Courts below are considered, in light of the
above legal principles/legal provisions reiterated in aforesaid judgments, then,
in this Court's consider opinion, the findings of facts concurrently recorded by
the Courts below are not liable to be interfered with in the instant case and it
cannot be said that Courts below have ignored any material evidence or has
acted on no evidence or Courts have 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 Courts below are based on inadmissible evidence.
13. A perusal of the impugned judgments and decree passed by the Courts
below reveals that they are well reasoned and have been passed after due
consideration of oral as well as documentary evidence on record. Learned
counsel for the appellant/plaintiff has failed to show that how the findings of
facts recorded by the Courts below are illegal, perverse and based on no
evidence etc. The learned Courts below have legally and rightly dealt with the
issues involved in the matter and have recorded correct findings of fact.
14. For the reasons aforesaid, I find no merit in the instant second appeal.
Concurrent findings recorded by the Courts below are fully justified by the
evidence on record. Concurrent findings recorded by the Courts below 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, instant appeal is dismissed in limine.
15. A copy of this order along with record be sent back to the Courts below for
information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
vai
