Madhya Pradesh High Court
Smt. Saroj Bai vs Laxminarayan on 14 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 14 th OF MAY, 2024
SECOND APPEAL No. 1467 of 2023
BETWEEN:-
1. SMT. SAROJ BAI W/O LATE RAMESH CHANDRA
OJHA, AGED ABOUT 67 YEARS, R /O WARD NO.4,
MAHATMA GANDHI WARD, KHIRKIYA, TAHSIL
KHIRKIYA DISTRICT HARDA(M.P.) (MADHYA
PRADESH)
2. TANMAY S/O LATE RAMESH CHANDRA OJHA,
AGED ABOUT 37 YEARS, OCCUPATION: SELF
EMPLOYED R/O WARD NO.4, MAHATMA GANDHI
WARD, KHIRKIYA, TAHSIL KHIRKIYA DISTRICT
HARDA (MADHYA PRADESH)
3. SMT. TARPTI W/O W/O NITIN D/O LATE RAMESH
CHANDRA OJHA, AGED ABOUT 48 YEARS,
OCCUPATION: HOUSEWIFE R/O WARD NO.4,
MAHATMA GANDHI WARD, KHIRKIYA, TAHSIL
KHIRKIYA DISTRICT HARDA(M.P.) (MADHYA
PRADESH)
4. SMT. POOJA W/O W/O GUDESH D/O LATE RAMESH
CHANDRA OJHA, AGED ABOUT 45 YEARS,
OCCUPATION: HOUSEWIFE R/O WARD NO.4,
MAHATMA GANDHI WARD, KHIRKIYA, TAHSIL
KHIRKIYA DISTRICT HARDA (MADHYA
PRADESH)
5. NARSINGH OJHA S/O LATE BALKRISHNA OJHA,
AGED ABOUT 63 YEARS, OCCUPATION: SELF
EMPLOYED R/O WARD NO.4, MAHATMA GANDHI
WARD, KHIRKIYA, TAHSIL KHIRKIYA DISTRICT
HARDA (MADHYA PRADESH)
6. SHIVAJI W/O GOPAL D/O LATE CHAYABAI, AGED
ABOUT 44 YEARS, OCCUPATION: HOUSEWIFE R/O
WARD NO.4, MAHATMA GANDHI WARD,
KHIRKIYA, TAHSIL KHIRKIYA DISTRICT HARDA
(MADHYA PRADESH)
7. SURYAKANT S/O LATE CHAYABAI, AGED ABOUT
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 5/21/2024
6:54:06 PM
2
40 YEARS, R /O WARD NO.4, MAHATMA GANDHI
WARD, KHIRKIYA, TAHSIL KHIRKIYA DISTRICT
HARDA (MADHYA PRADESH)
8. SHITAL W/O VIBHOR D/O LATE CHAYABAI, AGED
ABOUT 32 YEARS, R / O WARD NO.4, MAHATMA
GANDHI WARD, KHIRKIYA, TAHSIL KHIRKIYA
DISTRICT HARDA (MADHYA PRADESH)
9. VINITA W/O W/O RAJENDRA SHARMA D/O LATE
BALKRISHNA, AGED ABOUT 53 YEARS,
OCCUPATION: HOUSEWIFE R/O WARD NO.4,
MAHATMA GANDHI WARD, KHIRKIYA, TAHSIL
KHIRKIYA DISTRICT HARDA (MADHYA
PRADESH)
10. PREETI W/O NARENDRA KUMAR JOSHI, AGED
ABOUT 50 YEARS, OCCUPATION: HOUSEWIFE R/O
WARD NO.4, MAHATMA GANDHI WARD,
KHIRKIYA, TAHSIL KHIRKIYA DISTRICT HARDA
(MADHYA PRADESH)
11. PRATIBHA W/O W/O SARAD OJHA D/O LATE
BALKRISHNA, AGED ABOUT 55 YEARS, R/O WARD
NO.4, MAHATMA GANDHI WARD, KHIRKIYA,
TAHSIL KHIRKIYA DISTRICT HARDA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. LAXMINARAYAN S/O HABBULAL RATHOR R/O
KIRKIYA, TAHSIL KHIRKIYA, DISTRICT HARDA
(M.P.) (MADHYA PRADESH)
2. THE STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, HARDA DISTRICT HARDA
(MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI AMAN PATEL- PANEL LAWYER)
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 14.03.2023 passed by
Principal District Judge, Harda District-Harda in RCA No.100070/2015 arising
out of judgment and decree dated 23.09.2009 passed in RCS No.57-A/2009
by 2nd Additional Judge to the Court of 1st Civil Judge Class I, Harda, District-
Harda.
2. Brief facts of the case are that original plaintiff namely Ramesh Chandra (of
whom the appellants 1 to 4 are legal representative), plaintiff 2/appellant 2 and
plaintiff 3 namely Balkrishna (of whom the appellants 6 to 11 are legal
representative) filed a suit seeking relief of declaration of title in respect of land
bearing Khasra No.215/3, admeasuring 1.10 acre located at Village Khirkiya,
District-Harda (M.P.) on the plea of adverse possession. The claim of the
plaintiffs based on the grounds that one Balram S/o Ram Ji was owner of
agricultural lands admeasuring 22.99 acres situated at Village Khirkiya District
Harda (M.P.). Out of 22.99 acres lands, land admeasuring 2 acres were
purchased by one Jetamal alias Jaykishan S/o Kanhaiyalal through registered
sale deed dated 17.05.1956. The same was sold to plaintiffs 1 and 2 by
registered sale deed dated 26.08.1963. At that time, Khasra number of aforesaid
lands was 231/3. Adjoining land to aforesaid land was having Khasra No.231/2
admeasuring 1.50 and 233/2 admeasuring 0.50 acres which was purchased by
plaintiffs 1 and 2 through registered sale deed dated 12.04.1968 from one
Swami Akshyanan Maharaj. It is submitted that to the north side of the Khasra
No.231/2 and 233/2 land owned by one Balaram were located which was sold
by his daughter Shanti Bai after his death in the year 1985 to defendant 1 and his
brothers, Ganesh Rathore, Jagdish Rathore which was subsequently divided
amongst them. It was pleaded that plaintiffs are in possession of the land, which
fell under the share of defendant 1 since more than 30 years. On 17.06.2005, a
demarcation was conducted in which the plaintiffs were found to be in
possession of lands belonging to defendant 1 and accordingly suit was filed.
3. Learned counsel for the appellants submits that plaintiffs purchased property
vide sale deed (Ex.P/7 and Ex.P/8). Plaintiff had purchased 4 acres of land but
in reality on ground, there was 5.01 acres of land. Plaintiff is in possession of
above area of land (5.01 acre) since the date of sale deed (Ex.P/7 and Ex.P/8).
Later on, daughter of Balram sold part of same survey number to defendant
No.1 in the year 1985. Defendant No.1 got demarcated his land in the year 2005
and in above demarcation report, it was found that plaintiffs have encroached
area 1.01 acre. Plaintiffs are in possession of above area since date of sale deed
(Ex.P/7 and P/8) and against defendant No.1 since 1985. Plaintiff's possession
over above excess land (1.01 acre) is open and hostile to defendant No.1 and
defendant No.1 was in the knowledge of the same since 1985, still, defendant
No.1 did not take any action or initiated any proceedings for taking back
possession from plaintiffs. After referring to para-4 and 5 of plaint and
deposition of DW-1 as well as Ex.P/3 and Ex.P/4, learned counsel for the
appellant submits that plaintiffs have acquired title over disputed property on
the basis of adverse possession. Learned first appellate Court has wrongly
dismissed appellants application under Order 41 Rule 27 CPC etc. Learned
Courts below have wrongly dismissed plaintiffs suit. Therefore, 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 23.09.2009 passed in RCS No.57-
A/2009 dismissed plaintiffs suit and decreed defendant No.1's counter claim
and appellate Court vide judgement dated 14.03.2023 passed in RCA
No.100070/2015 dismissed plaintiffs appeal and affirmed trial Courts 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. Perusal of submissions of learned counsel for the appellants and
record of the case reveal that plaintiffs have filed suit for declaration of title and
permanent injunction on the ground that at the time of purchase of property,
plaintiffs/appellants also received extra possession of 1acre 10 decimal land.
10. Perusal of plaint averments as well as evidence adduced by the parties,
especially plaintiffs, reveal that there is nothing on record to clearly indicate as
to when plaintiffs came to know that they are in possession of excess land,
1acre 10 decimal. It appears that when defendant got demarcated property,
then, they became aware that plaintiffs are in possession of above excess land.
11. Perusal of evidence adduced by the plaintiffs clearly reveal that before
defendant got demarcated land, there was no demarcation of suit property
whatsoever at any point of time. There is nothing on record to show that at the
time of purchase of property by plaintiffs, the same was demarcated and
thereafter, possession was handed over to plaintiff. This Court have also gone
through para-23 to 28 of first appellate Court judgment and judgment passed by
trial Court, especially, para-13 and 14. In this Court's opinion, Courts below
have discussed and examined overall evidence on record, including facts of the
case and this Court is in complete agreement with the findings recorded and
conclusion drawn by the Courts below.
12. Thus, if plaint averments are read and assessed along with evidence on
record, then, clearly plaintiffs have not acquired any title over disputed property
on the basis of adverse possession. Further, perusal of appellate Courts
judgment reveal that it has rightly dismissed plaintiff's applications under Order
41 Rule 27 CPC etc. Hence, submissions of learned counsel for the appellants
cannot be accepted and no substantial question of law arises in the instant case.
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
