Madhya Pradesh High Court
Kamlesh vs Kaushal Kishore Dubey on 4 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
th
ON THE 4 OF MARCH, 2024
SECOND APPEAL No. 2467 OF 2023
BETWEEN:-
1. KAMLESH S/O SHRI DWARKA BRAHMAN,
AGED ABOUT 56 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE KHADEHA
TEHSIL GAURIHAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ANIL KUMAR DWIVEDI - ADVOCATE)
AND
1. KAUSHAL KISHORE DUBEY S/O SHRI
DWARKA PRASAD DUBEY, AGED
ABOUT 53 YEARS, VILLAGE
KHADEHA TEHSIL GAURIHAR
DISTRICT CHHATARPUR (MADHYA
PRADESH)
2. RAM KISHORE DUBEY S/O SHRI
DWARKA PRASAD DUBEY, AGED
ABOUT 61 YEARS, R/O VILLAGE
KHADEHA, TEHSIL GAURIHAR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
3. AWADH KISHORE DUBEY S/O SHRI
DWARKA PRASAD DUBEY, AGED
ABOUT 48 YEARS, R/O VILLAGE
KHADEHA, TEHSIL GAURIHAR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/20/2024
4:54:47 PM
2
4. RAJ KISHORE DUBEY S/O SHRI
DWARKA PRASAD DUBEY, AGED
ABOUT 45 YEARS, R/O VILLAGE
KHADEHA, TEHSIL GAURIHAR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
5. RAM KINKAR DUBEY S/O SHRI
DWARKA PRASAD DUBEY, AGED
ABOUT 51 YEARS, R/O VILLAGE
KHADEHA, TEHSIL GAURIHAR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
6. DEVKI TRIVEDI W/O SHRIDATT
TRIVEDI, AGED ABOUT 63 YEARS,
R/O VILLAGE MADHA, TEHSIL
LAVKUSH NAGAR, DISTRICT
CHHATARPUR (MADHYA PRADESH)
7. MARI DUBEY D/O SHRI DWARKA
PRASAD DUBEY W/O SHRI
SHYAMALAL DUBEY, AGED ABOUT
60 YEARS, R/O WARD NO.23, NEAR
KADA KI BARIYA, CHHATARPUR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
8. RANI SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 26 YEARS,
R/O VILLAGE BANSHIYA, TEHSIL
CHANDLA, DISTRICT CHHATARPUR
(MADHYA PRADESH)
9. ANNU SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 24 YEARS,
R/O VILLAGE BANSHIYA, TEHSIL
CHANDLA, DISTRICT CHHATARPUR
(MADHYA PRADESH)
10. ANNU SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 21 YEARS,
R/O VILLAGE BANSHIYA, TEHSIL
CHANDLA, DISTRICT CHHATARPUR
(MADHYA PRADESH)
11. RANU SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 18 YEARS,
R/O VILLAGE BANSHIYA, TEHSIL
CHANDLA, DISTRICT CHHATARPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/20/2024
4:54:47 PM
3
12. KUMARI SIYA SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 12 YEARS,
MINOR THROUGH THEIR NATURAL
GUARDIAN FATHER SHRI NATTHU
PRASAD SHUKLA R/O VILLAGE
BANSHIYA, TEHSIL CHANDLA,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
13. KUMARI ARTI SHUKLA D/O NATTHU
SHUKLA, AGED ABOUT 11 YEARS,
MINOR THROUGH THEIR NATURAL
GUARDIAN FATHER SHRI NATTHU
PRASAD SHUKLA R/O VILLAGE
BANSHIYA, TEHSIL CHANDLA,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
14. SONU DWIVEDI D/O SHRI RAJ
KISHORE DWIVEDI, AGED ABOUT 31
YEARS, R/O VILLAGE KHADEHA,
TEHSIL GAURIHAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
15. DHARMENDRA @ KULDEEP S/O
SHRI AWADH KISHORE, AGED
ABOUT 32 YEARS, R/O VILLAGE
KHADEHA, TEHSIL GAURIHAR,
DISTRICT CHHATARPUR (MADHYA
PRADESH)
16. AWADHESH S/O SHRI RAMSANEHI
PANDEY, AGED ABOUT 38 YEARS,
R/O VILLAGE KHADEHA, TEHSIL
GAURIHAR, DISTRICT
CHHATARPUR (MADHYA PRADESH)
17. STATE OF MADHYA PRADESH
THROUGH COLLECTOR
CHHATARPUR DISTRICT
CHHATARPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ACHCHHE LAL PATEL - ADVOCATE AND
MS.NALNI GURANG - PANEL LAWYER)
_______________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/20/2024
4:54:47 PM
4
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 15.09.2023 passed by
The Court of District Judge, Lavkush Nagar, District Chhatarpur in RCA
No.29/2017, arising out of the judgment and decree dated 09.09.2016 passed in
Civil Suit No.27-A/2014.
2. Brief facts of the case are that plaintiff filed suit for declaration of
title/partition and permanent injunction on the ground that suit property, joint
Hindu family property/ancestral property of plaintiff and defendants and they
are co-owner and joint possession of suit property. Original owner of disputed
properties and other properties was Ramnath. Ramnath had two sons, namely,
Dwarika Prasadand Deshraj. After death, Ramnath, properties devolved upon
Dwarika Prasad and Deshraj. In partition between Deshraj and Dwarka
Prasad, Dwarka Prasad got disputed properties. Plaintiff and defendants are
sons/daughters/descendants of Dwarika Prasad. Plaintiff has1/9 share in
disputed properties and will is null and void.
3. Learned counsel for the appellant after referring to Kenchegowda vs.
Siddegowda Alias Motegowda, (1994) 24 ALR 270 and Ex.D/21 (Bhu
Adhikar Rin Pustika) submits that plaintiff has filed present suit for partition,
therefore in a partition suit, whole of the property should be included but in
the instant case plaintiff has not included whole of the property. Further
relying upon Moreshar Yadarao Mahajan vs. Vyankatesh Sitaram Bhedi
and Ors., 2022 LiveLaw (SC) 802 and Tukaram vs. Sambhaji and Ors.
(1998) 3 Civil LJ 310 and Para 12 of the plaint, it is urged that plaintiff has
not joined Jagprasad, Ramvishal and Kunwar Prasad in the instant suit
whereas in the partition suit all parties should have been added, therefore in
view of above, suit filed by the plaintiff for partition is not maintainable. It is
also urged that first Appellate Court has wrongly dismissed appellant's
application under Order 41 Rule 27 of CPC. It is also urged that plaintiff has
failed to prove that suit property is ancestral/coparcenary property. It is also
urged that defendant has examined attesting witnesses of Will i.e. Ram Karan
and Shiv Gopal and from deposition of attesting witnesses, execution of Will
by Dwarka Prasad is clearly established. On above grounds, it is urged that in
the instant appeal, substantial question of laws as mentioned in the appeal
memo, arise for determination. Therefore, appeal filed by appellant be
admitted for final hearing.
4. Learned counsel for respondents submits that all the necessary parties
have been joined in the instant suit and persons mentioned in Para 12 are
neither necessary nor proper parties. It is also urged that whole of the property
has been included in the instant suit. Defendants have failed to prove
execution of will as well as partition by Dwarka Prasad during his lifetime.
Learned Courts below have rightly decreed plaintiff's suit and dismissed
appellant's appeal. Therefore, no interference is required in the instant case.
Hence, appeal filed by appellant be dismissed.
5. Heard. Perused record of the case.
6. Learned trial Court vide judgment dated 09.09.2016 passed in RCS
No.27-A/2014 decreed the suit and appeal filed by defendant was dismissed
vide judgment dated 15.09.2023 passed in RCA No.29/17.
7. It is apparent from records of Courts below that it is a case of concurrent
findings of facts i.e. both the Courts below have decreed the suit and appeal
filed by the appellants/defendants was dismissed.
8. 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".
9. 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".
10. 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".
11. As per plaintiff's case, Ram Nath had two sons, namely Deshraj and
Dwarika Prasad. Dwarka had 6 sons and 3 three daughters. In partition between
Deshraj andDwarika Prasad, Dwarika Prasad got disputed properties and after
death of Dwarika Prasad, disputed properties were inherited by plaintiff and
defendants &no partition has taken place between them till today regarding
above properties. Defendant Kamlesh has not specifically mentioned in his
written statement as to which properties have not been included for partition by
plaintiff in the instant suit. Perusal of written statement filed by defendant
Kamlesh and examination-in-chief of Kamlesh reveal that defendant Kamlesh
has stated therein that Dwarka Prasad had effected partition during his lifetime
20-25 years ago and defendant has specifically mentioned therein as to what he
got in partition, but defendant has not specifically mentioned therein as what
other brothers/other descendants got in the partition. Further, with respect to
above, no revenue records showing partition as pleaded and deposed by
defendant Kamlesh, are on record. It is correct that plaintiff has not impleaded
Sah Khatedar as party to the suit but it is immaterial because in the instant case,
dispute is only with regard share of Dwarika Prasad among descendants of
Dwarka Prasad.
12. So far as will exhibit D4 and exhibit D 18 are concerned, perusal of
depositions of Ram Karan, Shiv Gopal and Kamlesh etc. clearly reveals that
testator Dwarika Prasad was neither physically nor mentally fit to understand
the contents and implication of will and to execute the same. If there was
fracture in thumb of right hand and also tremor in the thumb, then, this material
fact should have been mentioned in the will itself, but but this fact is not
mentioned in the will. In view of above, documents filed by appellant along
with application under order 41 rule 27CPC are not necessary for Just decision
of the case. Hence, it cannot be said that appellate court has wrongly dismissed
defendant's above application. Therefore, pronouncements relied upon by
defendant counsel during his submissions do not help defendant in any way.
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 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.
14. 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.
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
sm
