Madhya Pradesh High Court
Heeralal vs Rajaram on 1 March, 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
rd
ON THE 23 OF FEBRUARY, 2024
SECOND APPEAL No. 528 OF 2013
BETWEEN:-
HEERALAL S/O LATE MOTIRAM
MALAKER, AGED ABOUT 53 YEARS,
VILLAGE KISHANPURA SIHADA TAH.
KHANDWA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI K.S.RAJPUT - ADVOCATE)
AND
1. RAJARAM S/O LATE DHANNALAL
MALAKER, AGED ABOUT 60 YEARS,
NEAR NAGAR GHAT TEA SHOP
OMKARESHWAR TAH. PUNASA
(MADHYA PRADESH)
2. COLLECTOR/ DISTRICT
MAGISTRATE THE STATE OF
MADHYA PRADESH KHANDWA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GOURAV PATHAK - PANEL
LAWYER)
_______________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/1/2024
5:34:44 PM
2
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 5.03.2013 passed by
IIIrd Addtional District Judge, Khandwa in RCA No.8A/12, arising out of the
judgment and decree dated 18.05.2012 passed in Civil Suit No.73-A/10.
2. Brief facts of the case are that plaintiff filed a suit for declaration and
permanent injunction on the ground that approximately 9 years ago, plaintiff
was in need of Rs.10,000/- for agricultural expenses and house hold expenses.
Therefore, plaintiff asked for Rs.10,000/- from defendant, thereupon,
defendant told he will charge interest at the rate of Rs.10/- per Rs.100/- per
month. Aftersome time, defendant started demanding of Rs.25,000/- from
plaintiff and got executed sale deed on 09.12.1999 in his favour. Though,
plaintiff executed sale deed in favour of defendant, still, plaintiff is in
possession of suit property from date of sale deed. Sale deed was executed as
loan security. On above grounds, plaintiff sought a relief that plaintiff is owner
and in possession of suit property and sale deed dated 09.12.1999 is not
binding on plaintiff.
3. Learned counsel for the appellant submits that plaintiff took loan of
Rs.10,000/- and in lieu of above loan, defendant got executed sale deed, which
is disputed property. He did not sale suit property to defendant, sale deed was
executed as security for loan. It is also urged that no mutation has been effected
on the basis of above sale deed and plaintiff is in possession of suit property. On
above grounds, it is urged that in the instant appeal substantial question of law
as mentioned in the appeal memo arise. Therefore, appeal be admitted for final
hearing.
4. Heard learned counsel for the appellant and perused record of the case.
5. Learned trial Court vide judgment dated 18.05.2012 in Regular Civil Suit
No.72-A/2010 dismissed the suit filed by plaintiff but Appellate Court vide
judgment dated 05.03.2013 passed in RCA No.8A/2012 dismissed the appeal
filed by appellant.
6. Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the first appellate court. 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. Perusal of plaint averments reveals, that admittedly, plaintiff has executed
sale deed/document (Ex.P/1) in favour of defendant. Plaintiff has not filed any
revenue records i.e. khashra/katoni to show that defendant did not get his name
mutated over of suit property on the basis of sale deed (Ex.D/1) and still
plaintiff is in possession of suit property.
10. Further, sale deed (Ex.D/1) has been executed on 09.12.1999 and present
suit has been filed on 08.09.2010. Suit is also time barred.
11. If pleadings and evidence adduced by the parties and the impugned
judgment passed by the first appellate court/trial court are 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.
12. 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 have
legally and rightly dealt with the issues involved in the matter and has recorded
correct findings of fact.
13. 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 is 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.
14. 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
SM
