Madhya Pradesh High Court
Vijaya Kumari Jain vs Basant Kumar Jain 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
th
ON THE 5 OF MARCH, 2024
SECOND APPEAL No. 1411 OF 2023
BETWEEN:-
VIJAYA KUMARI JAIN W/O RAJENDRA
JAIN, AGED ABOUT 70 YEARS, VILLAGE
BEOHARI (MADHYA PRADESH)
2. JITENDRA KUMAR JAIN S/O LATE
RAJENDRA JAIN, AGED ABOUT 45 YEARS,
NOT MENTION (MADHYA PRADESH)
3. DECEASED ABHAY KUMAR JAIN S/O LATE
MOHANLAL JAIN THROUGH LEGAL
HEIRS SMT. GULAB JAIN W/O ABHAY
KUMAR JAIN, AGED ABOUT 69 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
4. ASHISH JAIN S/O LATE ABHAY KUMAR
JAIN, AGED ABOUT 43 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
5. ANUP JAIN S/O LATE ABHAY KUMAR JAIN,
AGED ABOUT 41 YEARS, R/O VILLAGE
BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
6. ANJU JAIN S/O LATE ABHAY KUMAR JAIN,
AGED ABOUT 39 YEARS, R/O VILLAGE
BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/23/2024
2:24:02 PM
2
7. NIRBHAY KUMAR JAIN S/O LATE
MOHANLAL JAIN, AGED ABOUT 65 YEARS,
R/O VILLAGE BEOHARI DISTRICT
SHAHDOL PRESENTLY AT SATNA
(MADHYA PRADESH)
8. ARUN KUMAR JAIN S/O LATE MOHANLAL
JAIN, AGED ABOUT 61 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
9. BHAWAN KUMAR JAIN S/O LATE
MOHANLAL JAIN, AGED ABOUT 59 YEARS,
R/O VILLAGE BEOHARI DISTRICT
SHAHDOL PRESENTLY AT SATNA
(MADHYA PRADESH)
10. DECEASED ASHOK KUMAR JAIN S/O LATE
MOHANLAL JAIN THROUGH LRS. SADHNA
JAIN W/O LATE ASHOK KUMAR JAIN,
AGED ABOUT 55 YEARS, R/O VILLAGE
BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
11. `NIDHI JAIN D/O LATE ASHOK KUMAR
JAIN, AGED ABOUT 25 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
12. SHASHANK JAIN S/O LATE ASHOK KUMAR
JAIN, AGED ABOUT 23 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
13. ANKIT JAIN S/O LATE ASHOK KUMAR
JAIN, AGED ABOUT 21 YEARS, R/O
VILLAGE BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI GIRISH KUMAR SHRIVASTAVA - ADVOCATE)
AND
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/23/2024
2:24:02 PM
3
1. BASANT KUMAR JAIN S/O LT.
DEVCHAND JAIN, AGED ABOUT 62
YEARS, VILLAGE BEOHARI
(MADHYA PRADESH)
2. VEERENDRA KUMAR JAIN S/O LATE
DEVCHAND JAIN, AGED ABOUT 60
YEARS, R/O VILLAGE BEOHARI
DISTRICT (MADHYA PRADESH)
3. NEETU ALIAS SMITA JAIN W/O DILIP
JAIN, AGED ABOUT 43 YEARS, R/O
VILLAGE BEOHARI DISTRICT
SHAHDOL PRESENTLY AT SATNA
(MADHYA PRADESH)
4. PRANSHU AARJAV S/O SMT. NEETU
ALIAS SMITA JAIN, AGED ABOUT 9
YEARS, OCCUPATION: MINOR
THROUGH MOTHER AND GUARDIAN
SMT. NEETU ALIAS SMITA JAIN R/O
VILLAGE BEOHARI DISTRICT
SHAHDOL PRESENTLY AT SATNA
(MADHYA PRADESH)
5. PUSHPENDRA KUMAR JAIN S/O
LATE DEVCHANDRA JAIN, AGED
ABOUT 51 YEARS, R/O VILLAGE
BEOHARI DISTRICT SHAHDOL
PRESENTLY AT SATNA (MADHYA
PRADESH)
6. PRADEEP KUMAR JAIN S/O LATE
DEVCHANDRA JAIN, AGED ABOUT 50
YEARS, R/O VILLAGE BEOHARI
DISTRICT SHAHDOL PRESENTLY AT
SATNA (MADHYA PRADESH)
7. TRILOK CHANDRA JAIN S/O
PARMANAND JAIN, AGED ABOUT 57
YEARS, R/O VILLAGE BEOHARI
DISTRICT (MADHYA PRADESH)
8. DHARMENDRA KUMAR S/O
KAUSHAL PRASAD PATEL, AGED
ABOUT 56 YEARS, R/O BHOGIA TOLA
TEHSIL BEOHARI DISTRICT
(MADHYA PRADESH)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/23/2024
2:24:02 PM
4
9. STATE OF M.P. THROUGH
COLLECTOR SHAHDOL (MADHYA
PRADESH)
10. RAJKUMAR W/O PANNA LAL GUPTA,
AGED ABOUT 47 YEARS, R/O WARD
NO. 15 BEOHARI DISTRICT (MADHYA
PRADESH)
.....RESPONDENTS
( BY GAURAV PATHAK - PANEL LAWYER
FOR THE RESPONDENT NO.9/STATE)
_______________________________________________________________
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 02.03.2023 passed by
The Court of District Judge, Shehdol in RCA No.42A/2022, arising out of the
judgment and decree dated 10.05.2019 passed in Civil Suit No.35A/2017.
2. Brief facts of the case are that plaintiff filed a suit for declaration of title
and injunction on the ground that the plaintiffs as well as defendants are
descendants of Parmanand Jain. Parmanand Jain has three sons, namely,
Mohanlal, Dev Chandraand Trilokchandra. Plaintiffs are LRs of Mohanlal,
Respondent number 1 to 5 are Lrs Dev Chandra and for R-6 is Trilok Chandra.
Original owner of suit property was permanent and partition took place
between Parmanand Jain and plaintiffs' father with respect to ancestral
property in the year 1955 and thereafter, plaintiffs father started residing
separately. After the partition, plaintiff's father acquired suit property vide
order dated 21-03-1956 &and this property is subject matter of the suit.
Therefore, defendants have no right in above properties received by plaintiffs
father vide order dated 21.03,1956.
3. Learned counsel for appellant submits that plaintiffs as well as
defendants are descendants of Parmanand Jain. In the year 1955, partition took
place between Parmanand and his sons and after that plaintiffs' father
Mohanlal acquired suit property on lease. Original lease deed was in
possession of Parmanand and Dev Chandra/Trilok Chandra used to reside with
Parmanand. Hence, after death of Parmanand, lease deed was in possession of
the Dev Chandra and Trilok Chand andthey made interpolations in the lease
deed in connection with share. Exhibit D1's partition deed, being unregistered,
is inadmissible in law and it has never been acted upon. Hence, defendants
have no share in the suit property. On above grounds, it is urged that
substantial questions of law as mentioned in the appeal memo arise for
determination. Hence, appeal be admitted for final hearing.
4. Heard. Perused record of the case.
5. learned trial court vide judgment dated 10.05.2019 passed in C.S.
No.35A/2017 (Vijaya Kumari Jain & others Vs. Chanda Bai and others)
dismissed the suit filed by appellants and appeal filed by appellants was also
dismissed by appellate court vide judgment dated 02.03.2023 passed in RCA
No.42A/2022 ( Vijaya Kumari Jain Vs. Vasant Kumar Jain).
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. Admittedly, appellants' suit has also been dismissed on the ground that suit is
barred by limitation&in para 24, trial court has also held that there is defect of
nonjoinder of necessary parties but above findings have not been challenged by
appellants in present appeal.
10. It is correct that plaintiff Bhawan Kumar has admitted in para 20 of his
deposition that his father effected partition of ancestral properties on 04.10.1955
vide exhibit D1. But in view of para 24, 25 & 26 of plaintiff Bhawan Kumar's
testimony, it cannot be said that the suit property, i.e. survey number 212 and
216 are self acquired properties of plaintiffs' father Mohanlal. So far as alleged
interpolations in lease deed, exhibit D5 are concerned, plaintiffs have not filed
certified copy of exhibit D5 to prove the same. Further, plaintiffs did not get
examined interpolations in exhibit D/5 by any handwriting expert.
11. 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.
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 has
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 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.
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
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