Madhya Pradesh High Court
Jeewan Singh vs Bhujbal Singh Rajput on 1 May, 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 1 st OF MAY, 2024
SECOND APPEAL No. 856 of 2009
BETWEEN:-
1. JEEWAN SINGH S/O GULAB SINGH RAJPUT, AGED
ABOUT 55 YEARS, MAJA MUHARI TEH AND DISTT
HOSHANGABAD (MADHYA PRADESH)
2. SUSHILA BAI W/O KUNJBHAWAN SINGH, AGED
ABOUT 50 YEARS, MOJA MUHARI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
.....APPELLANTS
( BY SHRI ALOK KUMAR SHARMA WITH SHRI DEVENDRA RAJ
SURYAWANSHI - ADVOCATE)
AND
1. BHUJBAL DEAD THROUGH:
1-A NAGENDRA SINGH, AGED ABOUT 45 YEARS.
S/O LATE SHRI BHUJBAL SINGH R/O SARLA
BHAWAN, NEAR BHARAT MANDIR,
SOORAJGANJ, ITARSI, DISTRICT-
HOSHANGABAD.
1-B KUSUM BAI, AGED ABOUT 55 YEARS, D/O
LATE SHRI BHUJBAL SINGH, W/O LATE SHRI
KISHAN SINGH, R/O 362, SARVA SAMPANN
NAGAR COLONY, COLAMBIA, NEAR CARMENT
SCHOOL, INDORE
1-C SHOBHA BAI, AGED ABOUT 50 YEARS, D/O,
LATE SHRI BHUJBAL SINGH, W/O SHRI RAMESH
SINGH THAKUR, R/O NEAR FOREST DEPOT,
BUDNI, TEHSIL BUDNI DISTRICT-SEHORE.
2. THE STATE OF MADHYA PRADESH
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY AGRAWA -SENIOR ADVOCATE WITH SHRI
ARPIT AGARWAL - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 5/2/2024
5:53:04 PM
2
following:
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 29.06.2009 passed by
District Judge, Hoshangabad (MP) in RCA No.5-A of 2008, arising out of
judgment and decree dated 01.05.2008 passed in C.S.No.28-A of 2007, by 1st
Civil Judge, Class I, Hoshangabad.
2. Brief facts of the case are that plaintiff filed a suit for declaration of title and
permanent injunction on the ground that Murat Singh had three sons namely
Shambhu Singh, Gulab Singh and Bhujbal Singh and Prakashwati is wife of
Shambhu Singh. Plaintiffs are descendant of Gulab Singh. Shambhu Dayal and
his wife Prakashwati adopted Bhujbal Singh at the age of 7-8 years. Therefore,
Bhujbal has no right in ancestral property. This is also clear from registered Will
dated 21.12.1992.
3. Learned counsel for the appellant submits that Murat Singh had three sons
namely Shambhu Singh, Gulab Singh and Bhujbal Singh and Shambhu Dayal
died issueless. It is also urged that Will executed by Prakashwati wife of
Shambhu Dayal document (Ex.D/2) in favour of Bhujbal Singh and Gulab Singh
is to be construed as adoption deed and not as a Will. Shambhu Dayal and his
wife had adopted Bhujbal Singh. Therefore, Bhujbal has no right in ancestral
property. On above grounds, it is urged that in the instant appeal, substantial
question of law as mentioned in the appeal memo, arises for determination.
Therefore, appeal be admitted for final hearing.
4. Learned Senior counsel for the respondent submits that Courts below have
rightly dismissed plaintiff suit and has rightly held that Ex.D/2's document
cannot be construed as adoption deed, it is a Will. Therefore, appeal filed by
appellant be dismissed.
5 Heard. Perused record of the case.
6.Learned trial Court vide judgment dated 01.05.2008 passed in RCS No.28-
A/2007 dismissed plaintiff suit and decreed defendants counter claim and
appellate Court vide judgement dated 29.06.2009 passed in RCA No.5-A/2008
dismissed appeal filed by the plaintiff and affirmed trial Courts findings.
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:-
" 3 3 (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. Sole issue involved in the case is whether document (Ex.D/2) is a Will
or adoption deed. In Ex.D/2, Murat Singh is mentioned as father of Bhujbal
Singh and age of Bhujbal is mentioned as 60 years. Document (Ex.D/2) has
been executed on 21.12.1992. It is mentioned in Ex.D/2 that at the age of 7-8
years, Bhujbal was adopted by Prakashwati as well as her husband Shambhu
Dayal Singh.
11. In view of above facts, (i.e.) age of Bhujbal Singh on the date of execution
of document (Ex.D/2), and name of defendant Bhujbal father's and age of
Bhujbal Singh at the time of alleged adoption, in this Court's opinion, Ex.D/2's
document cannot be construed as adoption deed.
12. Further, from evidence on record it is also established that in the year 1980,
partition took place between Shambhu Singh, Gulab Singh and Bhujbal Singh.
Therefore, in view of above also, it cannot be said that Bhujbal Singh was
adopted by Shambhu Dayal and Prakashwati at the age of 7-8 years and he did
not have share in ancestral property. In view of above, no ground is made out
for interference in the findings recorded by the Courts below.
13. 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.
14. 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.
15.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.
16. 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
