Madhya Pradesh High Court
Harishchandra vs State Of M.P. 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. 1314 OF 2022
BETWEEN:-
HARISHCHANDRA S/O LATE CHARKU
SHAH, AGED ABOUT 58 YEARS,
OCCUPATION: AGRICULTURIST R/O GRAM
JAMUA, TEH. AND DISTT. SINGRAULI, M.P.
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI GREESHM JAIN - ADVOCATE)
AND
STATE OF M.P. THROUGH
COLLECTOR SINGRAULI M.P.
SINGRAULI, M.P. (MADHYA
PRADESH)
.....RESPONDENTS
( BY GAURAV PATHAK - PANEL LAWYER
FOR THE RESPONDENT/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 23.01.2021 passed by
4th Additional District Judge, Waidhan, District Singrauli in RCA No.20/2017,
arising out of the judgment and decree dated 22.12.2016 passed in Civil Suit
No.900108/2016.
2. Brief facts of the case are that plaintiff filed a suit for declaration of title
and permanent injunction on the ground that he is owner and in possession of
survey number 99/2, 101/1 and 204 since the time of his grand father.
Plaintiff's father's name was recorded in revenue records from 1960-61to
1977-78, but thereafter, name of Charku, plaintiff's father, has been deleted
from records and has been recorded in the name of State of MP.
3. Learned counsel for appellant/plaintiff submits that learned courts
below have dismissed plaintiff's suit solely on the ground of limitation.
Plaintiff has been in possession of suit property since the time of his
grandfather Baijnath and plaintiff's father was granted Lease in the year 1961
and his name was also mutated in revenue records. After death of father,
plaintiff is in possession of suit property. There is nothing on record as to how
and on what ground name of plaintiff's father has been deleted from the
records. Plaintiff has examined three witnesses and in rebuttal, no evidencehas
been adduced by the defendant. Appellate court as well as well trial court did
not pass any order on merits. Cause of action arose in the year 2015-2016 and
present suit has been filed on 06.08.2016. Therefore, it cannot be said that suit
is not within limitation. On above grounds, it is urged that substantial question
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 22.12.2016 passed in RCS
No.900108/2016 (Harishchandra Vs. State of MP) dismissed the suit and
appellate court vide judgment dated 23.01.2021 passed in RCA No.220/2017
(Harishchandra Vs. State of MP) dismissed the appeal filed by plaintiff.
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. Perusal of Khasra exhibit P2 and P3 reveals that from 1968-69 to 1977-78,
name of Charku, plaintiff's father was recorded in Khasra as owner and in
possession of the suit property. But plaintiff has not filed any Khasras for the
period after 1977-78 up to 2005. Since 2006, name of State of MP has been
continuously recorded over suit property. Plaintiff has not filed any document to
show as to how and on what basis, state's name has been recorded. In para 5 of
plaint, it is mentioned that Charku was granted lease in the year 1960-61 vide
order dated 18.06.1962 passed in case No. 121/A-6/1960-61 but plaintiff has not
filed above lease deed and copy of proceedings relating thereto and plaintiff has
not furnished any explanation for the same.
10. Further, plaintiff has not filed any revenue record wherein plaintiff's
name has been recorded as owner and in possession or in any capacity
whatsoever.
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 nterfered 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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