Madhya Pradesh High Court
Smt. Beni Bai vs Ghinua Ahirwar on 5 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
ON THE 5TH OF MARCH 2024
SECOND APPEAL No. 2641 OF 2023
BETWEEN:-
SMT. BENI BAI W/O SHRI
HARISHAKAR VANSHKAR,
AGED ABOUT 48 YEARS,
OCCUPATION: AGRICULTURE
R/O WARD NO.09, KRISHNA
PURA MARG SAHU
DHARAMSHALA KE SAMNE,
BIORA RAJGARH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI JAGDIHS PRASAD SINGROL - ADVOCATE)
AND
1. THE GHINUA AHIRWAR S/O SHRI
CHANGEY AHIRWAR R/O GRAM
ASTARI TAHSIL NIWARI DISTRICT
NIWARI (MADHYA PRADESH)
2. OMPRAKASH AHIRWAR S/O SHRI
GHINUA AHIRWAR R/O GRAM ASTARI
TEHSIL NIWARI DISTRICT NIWARI
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR
TIKAMGARH DISTRICT TIKAMGAHR
(MADHYA PRADESH)
...RESPONDENTS
(BY SHRI GAURAV PATHAK - PANEL
LAWYER FOR THE RESPONDENT/STATE)
_______________________________________________________________
2
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 13.09.2023 passed by IInd
District Judge, Niwari District-Tikamgarh (MP) in Regular Civil Appeal
No.75/2019, arising out of the judgment and decree dated 25.09.2019 passed in
Civil Suit No.300019/2014 by Civil Judge, Class-I Niwari District-Tikamgarh.
2. Brief facts of the case are that plaintiff filed a suit for declaration of title
and permanent injunction on the ground that defendant No. was owner of 5/12
share in survey number111/5, 111/6 and 112/1 situated in village Teharka Bhata
& defendant No. 2 was owner of survey number 111/12 situated in Teharka
Bhata. Defendants sold suit property to plaintiff vide registered sale deed on
26.09.2009. Therefore, plaintiff is owner and in possession of suit property.
Tehsildar had wrongly held that suit property was banned for sale.
3. Learned counsel for the appellant submits that he has purchased the
disputed suit property by sale deed Ex.P/1 on 26.06.2009 and he has filed an
application under Order 41 Rule 27 of CPC for brining on record the sale deed.
Suit property was given on lease to respondents and they have became owner
after 10 years of lease, therefore, they were entitled to execute sale deed in favour
of plaintiff. On above grounds, it is urged that substantial questions of law arises
in this appeal and appeal be admitted for final hearing.
4. Heard and perused the record of the case.
5. Learned trial court vide judgement dated 25.09.2019 passed in RCS No.
30019A/2014 (Smt. Bainibai Vs, Ghinau & others) dismissed suit filed by plaintiff
and appellate court vide judgement dated 13.09.2023 passed in RCA No. 75/2019
(Smt. Bainibai Vs. Ghinau & others) dismissed appeal filed by plaintiff and
affirmed the findings of trial court.
6. 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".
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 lease deed exhibit D1 reveals that is in the name of Ghinau and Kunji
and above lease has been granted in the year 1990-91 and with respect to survey
number 111/5 and 111/6. Lease deed exhibit D2 is in the name of Guddi Devi and
Om Prakash and with respect to survey number 111. On left side of top of exhibit
D2, it is mentioned " Sale Prohibited" and exhibit D1's top right side is torn.
Plaintiff has not filed original copy of exhibit D1 and exhibit D2. Plaintiffs filed
appeal against order exhibit D3 passed by Tehsildar dismissing plaintiffs'
application for mutation on the basis of sale deed exhibit P1. Tehsildar's above
order was set aside by by SDO on appeal filed by plaintiffs & and case was
remanded to tehsildar to decide the matter afresh after hearing the parties and
making a detailed enquiry but plaintiffs have not filed the order passed by tehsildar
after remand of the case and no explanation has been furnished for the same.
Further, plaintiffs have not filed copy of proceedings relating to lease exhibit D1
and exhibit D2 to show that as to on what terms and conditions lease was granted.
In view of above, documents filed by plaintiffs along with application under order
41 rule 27 of CPC are not relevant and necessary for just decision of the case.
Hence, the same is dismissed. Hence, in view of above, it cannot be said that trial
court and appellate court has committed any illegality in dismissing the suit and
appeal.
10. 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.
11. 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.
12. 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.
13. 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
