Madhya Pradesh High Court
Sushil Chandra Gupta vs Hiralal 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. 627 of 2009
BETWEEN:-
1. SUSHIL CHANDRA GUPTA S/O
MAHAVIR GUPTA, AGED ABOUT 60
YEARS, OCCUPATION:
AGRICULTURE, SIDHI KHURD,
TEH.GOPAD BANAS, DISTT.SIDHI
(MADHYA PRADESH)
DEAD THROUGH LR'S
1(A) MS. LALNI W/O LATE SHRI
SUSHIL CHANDRA GUPTA, AGED
ABOUT 67 YEARS R/O VILLAGE
SIDHI KHURD, WARD NO.24,
TEHSIL GOPAD BANAS, DISTRICT-
SIDHI
1(B) DIGANLAL GUPTA S/O LATE SHRI
SUSHIL CHANDRA GUPTA, AGED
ABOUT 51 YEARS R/O VILLAGE
SIDHI KHURD, WARD NO.24,
TEHSIL GOPAD BANAS, DISTRICT-
SIDHI
1(C) BRIJLAL GUPTA W/O LATE SHRI
SUSHIL CHANDRA GUPTA, R/O
VILLAGE SIDHI KHURD, WARD
NO.24, TEHSIL GOPAD BANAS,
DISTRICT-SIDHI
1(D) RAMSWAROOP GUPTA S/O LATE
SHRI SUSHIL CHANDRA GUPTA,
R/O VILLAGE SIDHI KHURD,
WARD NO.24, TEHSIL GOPAD
BANAS, DISTRICT-SIDHI
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:11:14 PM
2
1(E) MUNNI GUPTA W/O SHRI RAJ
KARAN GUPTA AGED ABOUT 48
YEARS R/O VILLAGE BATAULI
TEHSIL GOPAD BANAS DISTRICT-
SIDHI.
1(F) KALAWATI GUPTA W/O SHRI
SANTOSH GUPTA AGED ABOUT 46
YEARS R/O NEW ADARSH
COLONY, KACHPUR BRIDGE
JABALPUR.
1(G) SAROJ GUPTA W/O SHRI SURESH
CHANDRA GUPTA ABOUT 36
YEARS R/O GALLA MANDI
CHAKGHAT, TEHSIL TEONATHAR,
DISTRICT-REWA.
1(H) PANCHWATI GUPTA W/O SHRI
GYAN CHANDRA GUPTA AGED
ABOUT 29 YEAR R/O VILLAGE
PASCHIM SHARIRA, DISTRICT-
KAUSHAMBI
.....APPELLANTS
(BY SHRI HARSH WARDHAN- ADVOCATE)
AND
1. HIRALAL S/O PARASNATH, AGED ABOUT
50 YEARS, OLD SIDHI, TEH.GOPAD BANAS,
DISTT.SIDHI (MADHYA PRADESH)
2. DHYAN LAL S/O PARASNATH BANI, AGED
ABOUT 55 YEARS, KATHAS, TEH. GOPAD
BANAS, DISTT. SIDHI (MADHYA PRADESH)
3. RAMBHUWAN S/O PARASNATH BANI,
AGED ABOUT 42 YEARS, KATHAS, TEH.
GOPAD BANAS, DISTT. SIDHI (MADHYA
PRADESH)
4. RAMMILAN S/O PARASNATH BANI, AGED
ABOUT 40 YEARS, KATHAS, TEH. GOPAD
BANAS, DISTT. SIDHI (MADHYA PRADESH)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:11:14 PM
3
5. VAKIL PRASAD S/O PARASNATH BANI,
AGED ABOUT 35 YEARS, KATHAS, TEH.
GOPAD BANAS, DISTT. SIDHI (MADHYA
PRADESH)
6. YAGYALAL S/O PARASNATH BANI, AGED
ABOUT 30 YEARS, KATHAS, TEH. GOPAD
BANAS, DISTT. SIDHI (MADHYA PRADESH)
7. SMT. BASANT W/O SHESHMANI BANI,
AGED ABOUT 55 YEARS, BARI, TEH.
GOPAD BANAS, DISTT. SIDHI (MADHYA
PRADESH)
8. SMT. MUNIA W/O JAGANNATH BANI, AGED
ABOUT 45 YEARS, KUBRI, TEH. SINHAWAL,
DISTT. SIDHI (MADHYA PRADESH)
9. KEDAR BANI S/O RAM NARAIN @ RAM
SHARAN BANI, AGED ABOUT 70 YEARS,
SIDHI KHURD, TEH. GOPAD BANAS, SIDHI
(MADHYA PRADESH)
10. RAM BAHAR S/O DASHRATH BANI, AGED
ABOUT 68 YEARS, SIDHI KHURD, TEH.
GOPAD BANAS, SIDHI (MADHYA PRADESH)
11. KANHAI S/O JOKHAI JOKHU BANI, AGED
ABOUT 30 YEARS, SIDHI KHURD, TEH.
GOPAD BANAS, SIDHI (MADHYA PRADESH)
12. ARJUN S/O JOKHAI BANI, AGED ABOUT 25
YEARS, SIDHI KHURD, TEH. GOPAD
BANAS, SIDHI (MADHYA PRADESH)
13. ASHOK S/O JOKHAI BANI, AGED ABOUT 20
YEARS, SIDHI KHURD, TEH. GOPAD
BANAS, SIDHI (MADHYA PRADESH)
14. SMT. BUTI W/O LATE LOKHAI BANI, AGED
ABOUT 35 YEARS, SIDHI KHURD, TEH.
GOPAD BANAS, SIDHI (MADHYA PRADESH)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
8:11:14 PM
4
15. COLLECTOR THE STATE OF MADHYA
PRADESH SIDHI (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
--------------------------------------------------------------------------------------------
RESERVED ON : 13.02.2024
PRONOUNCED ON : 29.02.2024
_______________________________________________________________
This appeal having been heard and reserved for judgment, 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 30.01.2009 passed by
Ist Additional Judge, Sidhi, to the Court of Ist Additional District, Judge Sidhi in
regular Civil Appeal No.10-A/2007, arising out of the judgment and decree
dated 31.10.2006 passed in Civil Suit No.190-A/2013 and 355-A/2003 passed
by Ist Civil Judge, Class-II Sidhi.
2. Brief facts of the case are that plaintiff filed a suit for declaration,
permanent injunction and an alternately for partition on the ground that
plaintiff as well as defendant are member of joint Hindu Family. Suit property
is ancestral property of plaintiff as well as defendant. In 1948, oral partition
took place between plaintiff as well as defendant and they received properties
as mentioned in the plaint. Memorandum with respect to partition was
recorded in the year 1960 and it was signed by both the parties. Therefore,
plaintiff's suit be decreed and relief as mentioned in prayer clause of plaint be
given.
3. Learned counsel for the appellant, after being repeatedly asked to argue
on the point of admission, did not argue. Therefore, this appeal was reserved
for order on admission.
4. Heard. Perused record of the case.
5. Learned trial Court vide judgment dated 31.10.2006 passed in RCS
No.355-A/2003 and 190A/2003 partly decreed the suit filed by the plaintiff and
appeal filed by appellant/plaintiff was dismissed by Appellate Court vide
judgment dated 30.01.2009 passed by in RCA No.10-A/2007.
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:-
"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. I have gone through the pleadings as well as evidence adduced by the parties
and have examined and assessed the same. Hence, if pleadings and evidence
adduced 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.
13. 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.
14. 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.
15. 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
