Madhya Pradesh High Court
Pratap Patel vs The State Of Madhya Pradesh on 6 March, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
th
ON THE 6 OF MARCH, 2024
SECOND APPEAL No. 1229 of 2020
BETWEEN:-
PRATAP PATEL S/O BHAIYA JI PATEL,
AGED ABOUT 37 YEARS, OCCUPATION:
CULTIVATION VILL. CHOUKITAL TEH.
AND DIST. JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY MR. RAM SUPHAL VERMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THR. COLLECTOR JABALPUR
DIST. JABALPUR (MADHYA PRADESH)
.....RESPONDENT
( MR. SANJEEV KUMAR SINGH- 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 12.02.2020 passed by
17th Additional District Judge, Jabalpur in R.C.A. No.18/2020, arising out of the
judgment and decree dated 07.12.2019 passed in Civil Suit No.1103-A/2017
passed by 14th Civil Judge, Class-I, District-Jabalpur (M.P.).
2. Brief facts of the case are that the plaintiff filed a suit for declaration
of title as well as permanent injunction on the ground that late Shanti Bai was
owner of Survey No.41/3, (Old)60(New) and Shanti Bai had executed Will on
16.08.2008 in favour of plaintiff. Therefore, on the basis of Will plaintiff is
owner and in possession of suit property.
3. Learned counsel for the appellant, after referring to judgment of trial
Court as well as of Appellate Court, submits that the Courts below have held
that the execution of Will is clearly established but appellant/plaintiff's suit has
been dismissed solely on the ground that the appellant has failed to prove the
fact that Shanti Bai was owner of suit property. It is also urged that the appellant
has filed application under Order 41 Rule 27 of CPC for taking relevant
certified copy of khasras on record to establish the fact that Shanti Bai acquired
the ownership of suit property from his father. Therefore, the appellant's
application filed under Order 41 Rule 27 be allowed. 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. Learned Panel Lawyer for the respondent submits that since long disputed
land has been recorded in the name of State and execution of Will is not proved
as per law. Therefore, Courts have rightly dismissed the suit. No interference is
required.
5. Heard. Perused record of the case.
6. Learned trial Court vide judgment dated 07.12.2019 passed in Regular Civil
Suit No.1103-A/2017 dismissed the suit filed by plaintiff and Appellate Court
vide judgment dated 12.02.2020 passed in R.C.A No.18/2020 dismissed the
appeal filed by appellant/plaintiff and reaffirmed the findings recorded by the
learned trial Court.
7. Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the first appellate court/trial 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".
8. 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".
9. 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".
10. It is correct that the Appellate Court as well as the trial Court has
dismissed the appellant's suit/appeal primarily on the ground that the appellant
failed to prove that Shanti Bai was the owner of suit property and in this
connection, to prove above fact, appellant has filed application under Order 41
Rule 27 of CPC along with document, during pendency of present second
appeal. A perusal of deposition of attesting witness Jugal Kishore, especially,
examination-in-chief reveal that he has nowhere deposed that he signed the Will
before/in the presence of testator which is a sine-qua-non for proving execution
of a Will.
11. Further perusal of Will reveal that first page of the Will has not been
signed by testator i.e. there is no thumb impression on the first page of Will. On
second page, there is thumb impression of testator and below thumb impression,
there is sufficient blank space for signature of attesting witnesses as well as
scribe of the Will but there are no signatures of attesting witnesses and scribe on
this blank portion of second page. There are signature of attesting witnesses as
well as scribe of the Will on 3rd page of the Will. Perusal of third page of the
Will reveal that therein word, signature, name, father, age, residents are typed
and in between therein, there is blank space which have been filled by hand.
Further perusal of ink as well as pen used at different places is quite different
from one another. Therefore, on account of above Will appears to be suspicious
and doubtful. Hence, even if appellant's application filed under Order 41 Rule
27 CPC is allowed, still, then it would not serve any purpose. Hence, it is also
dismissed.
12. 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.
13. 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.
14. 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.
Fndings 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.
15. 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
julie
JULIE SINGH
2024.03.14 18:20:27 +05'30'
