Madhya Pradesh High Court
Chief Nagar Panchayat Officer vs Raghunath Prasad on 10 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 10 th OF MAY, 2024
SECOND APPEAL No. 654 of 2013
BETWEEN:-
CHIEF NAGAR PANCHAYAT OFFICER NAGAR
PANCHAYAT AMARPATAN DISTT. SATNA (MADHYA
PRADESH)
.....APPELLANT
( BY SHRI S.K. KUSHWAHA - ADVOCATE)
AND
1. RAGHUNATH PRASAD S/O KAMTA PRASAD
PATEL, AGED ABOUT 48 YEARS, VILLAGE
KANCHANPUR TEHSIL MAIHAR DISTT. SATNA
(MADHYA PRADESH)
2. COLLECTOR / DISTRICT MAGISTRATE THE
STATE OF MADHYA PRADESH SATNA (MADHYA
PRADESH)
.....RESPONDENTS
( SHRI SHAILENDRA MISHRA- PANEL LAWYER)
(SHHRI AMAN PATEL- ADVOCATE APPEARING ON BEHALF OF SHRI
SHRI DINESH PRASAD PATEL - ADVOCATE)
This appeal coming on for admission this day, th e 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 21.01.2013 passed by
2nd District Judge (Fast Track Court) Maihar Districi-Satna in Civil Appeal
No.40-A/2011, arising out of judgment and decree dated 30.01.2011 passed in
civil suit No.25-A/10, by Civil Judge, Class I, Maihar.
2. Briefs facts of the case are that plaintiff filed a suit for declaration of title,
mandatory injunction, recovery of possession and for mesne profit on the
ground that he is owner of suit property and defendant has encroached on part
of the suit property.
3. Learned counsel for the appellant submit that plaintiff has not filed any
documents to prove his title over the suit property. Therefore, in absence of any
document, no declaratory decree with respect to title can be granted in favour
of plaintiff and just on the basis of revenue entries, title cannot be decided. It is
also urged that first appellate Court allowed appellants, application under Order
41 Rule 27 CPC but it did not remand the case, whereas, it should have
remanded the case for recording of evidence. It is also urged that demarcation
report available on record is not proper as defendant were not present at the
time of demarcation and in absence of appropriate demarcation report issue
involved in the case cannot be decided. It is also urged that in map (Ex.D/1),
there are no divisions of Survey No.850. Therefore, no demarcation is possible.
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. Heard. Perused record of the case.
5 . Learned trial Court vide judgment dated 31.01.2011 passed in RCS No.
25.01.2010 decreed plaintiff suit and appellate Court vide judgment dated
21.01.2013 passed in RCA No.40-A/11 dismissed defendants appeal and
affirmed trial Court findings.
6.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."
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. So far as plaintiff's title over suit property is concerned, perusal of plaint
averments as well as written statement filed by defendants and other documents
on record, it is evident that plaintiff is owner and in possession of suit property
and defendant is owner and in possession of Survey No.853. Thus, virtually
there is no dispute with respect to title of Survey No.850 and 853. Therefore,
Courts below have rightly held that plaintiff is owner of suit property. It is also
so because defendant has not filed any contrary revenue entry showing
someone else owner of Survey No.850/disputed property.
10. It is correct that in Khasra Panchsala, there are divisions of Survey No.850
but there are no corresponding divisions of Survey No.850 in revenue map
(Ex.D/1). Perusal of demarcation report (Ex.P/1 to P/4) reveal that demarcation
was conducted and in the said report it was found that on part of Survey
No.850 Nagar Panchayat has encroached and encroached part is shown by red
ink. It is not the case of appellant that he is owner and in possession of Survey
No.850 or any part thereof. Thus, demarcation report (Ex.P/1 to P/4) cannot
said to be contrary or against revenue map (Ex.D/1). Further, as per Panchnama
(Ex.P/4), Nagar Panchayat Amarpatan's employee Radhika Prasad Gautam and
Siddharth Khare were present during demarcation proceedings but they refused
to sign the Panchnama. Defendant witness Vishwajeet has admitted in his cross-
examination that presently Radhika Prasad Gautam is posted at Amarpatan in
water supply project and Siddharth Khare has been transferred to Rampur
Baghelan. It is also evident from record of the case as well as submissions
made by learned counsel for the appellant that above demarcation report has
not been challenged till today by appellant before any competent forum.
Therefore, now defendant cannot contend that demarcation report is not proper
or it was done in his absence. Further, in Ex.P/1, it is clearly mentioned that
notice was issued with respect to demarcation.
11. Thus, evidently, from evidence on record it is clearly established that
plaintiff is owner of disputed property and there was need for First Appellate
Court to remand the case after allowing appellants' application under Order 41
Rule 27 CPC. Further, in view of overall facts and circumstances of the case, it
cannot be said that demarcation report submitted by plaintiff and relied upon by
Courts below is not proper or it suffers from any infirmity.
12. Hence, in view of above, appeal cannot be admitted on substantial question
of law a,b and c as mentioned in appeal memo. Hence, no interference is
required 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
