Madhya Pradesh High Court
Punibai vs Atmaram on 6 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 6th OF MARCH, 2024
SECOND APPEAL No. 1779 of 2022
BETWEEN:-
PUNIBAI W/O RAMKRISHNA BAGHMARE,
AGED ABOUT 72 YEARS, WARD NO. 6,
LODHIKHEDA, TAH. SAUNSAR, DISTT.
CHHINDWARA (M.P.) (MADHYA PRADESH)
.....APPELLANT
(MR. RAJEEV SHRIVASTAVA - ADVOCATE)
AND
ATMARAM S/O PARASRAM TELI, AGED
ABOUT 65 YEARS, R/O WARD NO. 6,
1. LODHIKHEDA, TAH. SAUNSAR, DISTT.
CHHINDWARA (M.P.) (MADHYA
PRADESH)
MADHYA PRADESH SHASAN THROUGH
2. COLLECTOR CHHINDWARA DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)
.....RESPONDENTS
( MR. HARSH GUPTA- PANEL LAWYER FOR 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 06.01.2020 passed by
Additional Sessions Judge, Sausar, District-Chhindwara (M.P.) in Regular Civil
Appeal No.12/2017, arising out of the judgment and decree dated 17.01.2017
passed in Civil Suit No.101-A /2011 passed by Civil Judge, Class-II, Sausar,
District-Chhindwara (M.P.).
2. Brief facts of the case are that the plaintiff filed a suit for declaration
of tile and mendatory injunction/permanent injunction on the ground that
original owner of suit property was Parasram and Parasram had three wives
namely Alokhabai, Chintabai and Yashodabai. Plaintiff is daughter of
Chintabai whereas defendant no.1 is son of Alokhabai and Yashodabai died
issueless, therefore, plaintiff is entitled to receive half share of Yashodabai in
Survey No.158/1 area 1.619 hectare.
3. Learned counsel for the appellant submits that original owner of suit
property was Parasram and Parasram had three wives, namely, Alokhabai,
Chintabai and Yashodabai. Plaintiff is daughter of Chintabai whereas defendant
No.1 is son of Alokhabai. Yasoda Bai did not have any child. In the instant case,
Parasram partitioned his property amongst his three wives during his life time.
In the instant case, there is dispute with respect to share of Yoshdabai and
plaintiff is claiming half share in Yasodabai's property. It is also urged that
plaintiff filed a suit against Yasodabai during her life time and it has been
dismissed. The new cause of action arose after death of Yasodabai. Defendant
No.1 got mutated his name over whole of the share of Yasodabai. In the instant
case, copies of earlier plaint's judgment have not been filed. Therefore,
Appellate Court has wrongly dismissed plaintiff's suit as barred by res judicata.
Plaintiff as well as defendant No.1 are entitled to receive half share each in
Yasodabai's share. 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 be admitted for final hearing.
4. Heard. Perused record of the case.
5. Learned trial Court vide judgment dated 17.01.2017 passed in Regular Civil
Suit No.101/2011 decreed plaintiff's suit but Appellate Court vide judgment
dated 06.01.2020 passed in RCA No.12/2017 allowed the appeal filed by
defendant and set aside the judgment of the trial Court and dismissed plaintiff's
suit.
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. Admittedly, appellant/plaintiff filed a suit with respect to property
involved in the instant case against Yashodabai during her life time and this suit
has been dismissed and appeal relating to above suit is pending and it is
apparent from Exhibit-P/1 filed by appellant herself. Thus, it is apparent that
appellant has filed two suits with respect to same property.
10. Further, plaintiff has not filed plaint/judgment passed by trial Court/First
Appellate Court in previous suit relating to Second Appeal No.527 of 2009
(Exhibit-P/1). Perusal of paragraph no.10(a) of plaint reveal that it appears that
deceased Yashodha Bai had sold survey no.158/1. In view of above pleading
mentioned in paragraph no.10(a) of plaint, appellant's present suit is not
maintainable at all because as per above plaint, Yashodabai had already sold
property involved in the instant case. Plaintiff has not impleaded purchaser of
survey no.158/1 as defendant in the instant suit and neither any relief of
cancellation above sale-deed has been sought in the instant case. Thus, in view
of above, plaintiff's present suit does not appear to be maintainable.
11. If pleadings and evidence adduced by the parties and the impugned
judgment passed by the first appellate 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 are not liable to be interfered with in the instant case and it cannot be said
that first appellate court has ignored any material evidence or has acted on no
evidence or first appellate 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 are based on inadmissible
evidence.
12. A perusal of the impugned judgment and decree passed by the first
appellate 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 are illegal, perverse and
based on no evidence etc. The learned first appellate 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 are fully justified
by the evidence on record. Findings recorded by the first appellate court
are not based on misreading or misappreciation 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 for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
julie
