Madhya Pradesh High Court
Bihari Lal Soni vs Bhagwaniya Bai 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 14th OF MAY, 2024
SECOND APPEAL No. 553 of 2018
BETWEEN:-
1. BIHARI LAL SONI S/O JAGDEO
SINGH, AGED ABOUT 60 YEARS,
PURANI BASTI ANUPPUR (MADHYA
PRADESH)
2. JAGDISH SONI S/O SHRI JAGDEO
SONI, AGED ABOUT 57 YEARS,
PURANI BASTI ANUPPUR (MADHYA
PRADESH)
3. LALITA SOI W/O SHRI GANESH
PRASAD SONI, AGED ABOUT 55
YEARS, PURANI BASTI ANUPPUR
(MADHYA PRADESH)
4. SATENDRA SONI S/O SHRI GANESH
PRASAD SONI, AGED ABOUT 35
YEARS, PURANI BASTI ANUPPUR
(MADHYA PRADESH)
5. REENA SONI D/O SHRI GANESH
PRASAD SONI, AGED ABOUT 28
YEARS, PURANI BASTI ANUPPUR
(MADHYA PRADESH)
6. RAJENDRA SONI S/O SHRI GANESH
PRASAD SONI, AGED ABOUT 25
YEARS, PURANI BASTI ANUPPUR
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI T.K. MODH-ADVOCATE )
AND
1. BHAGWANIYA BAI W/O PRATAP
SINGH MARAVI, AGED ABOUT 65
YEARS, VILL. KOILARI TEH.
PURSHPARAJGARH P.S
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
2
RAJENDRAGRAM (MADHYA
PRADESH)
2. RAMESH SONI S/O SHRI ANGAD
SONI, AGED ABOUT 60 YEARS,
PURANI BASTI ANUPPUR (MADHYA
PRADESH)
3. SANTOSH SONI S/O SHRI ANGAD
SONI, AGED ABOUT 55 YEARS,
PURANI BASTI ANUPPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI R.P MISHRA-ADVOCATE )
This appeal coming on for admission this day, the court passed
the following:
ORDER
This appeal has been filed by the appellants/ defendants under
Section 100 of CPC against the judgment and decree dated 8.9.2017
passed in Civil Appeal No.41-A/2016 by District Judge, (Presiding
Officer), Anuppur arising out of judgment and decree dated 18.10.2016
passed in Civil Suit No.65-A/2016 passed by II Civil Judge, Class- I
(Presiding Officer), Anuppur.
2. Brief facts of the case are that plaintiff filed a suit for
declaration of title, permanent injunction and for declaring order dated
23.11.2009 passed by the Court of Tahsildar, Anuppur null and void on
the ground that defendant no.1, who received the suit property in
partition., sold the suit property to plaintiff vide sale deed dated
16.02.2006. Defendant no.1 has sold the property after partition was
affected between co-owner of the suit property but later on, above
partition was set aside and fresh order was passed and it has been passed
without informing the plaintiff and in ignorance of plaintiff.
3. Learned counsel for the appellants, after referring to plaint
averments as well as deposition of plaintiff witness Bhagwaniya Bai,
especially, paras 2, 3 and 4 of her cross-examination and relying upon
Bhagwandas Vs. State of M.P. and another 2001 (1) MPLJ 248
submits that there was no partition between co-owners of the suit
property. Therefore, defendant no.1 was not entitled to sale or alienates
any part of the joint property. Partition order Ex.P/2 has been set aside
vide order Ex.P/3. Thereafter, property has been recorded again in the
joint name of all co-owners of the suit property. Order Ex.P/3 was
challenged and plaintiff appeal has also been dismissed. There was no
valid partition on the date of execution of sale deed. Further, in view of
Bhagwandas (supra) a co-owner cannot alienate even his share without
consent of other co-sharer. Therefore, defendant no.1 was not entitled to
sale any party of the property. It is also urged that in earlier part of
plaint, plaintiff has mentioned that impugned order was passed by the
Court of Tahsildar on 23.11.2009 and in relief clause, date of order is
mentioned as 23.11.2007 which relates to Ex.P/2. On above grounds, it
is urged that substantial questions of law as mentioned in the appeal
memo and it be admitted for final hearing.
4. Learned counsel for the respondents submits that findings
recorded by the Courts below are just and proper. Hence, appeal be
dismissed.
5. I have heard learned counsel for the parties and perused the
record of the case.
6. Learned trial Court vide judgment dated 18.10.2016 passed
in RCS No.65A/2016 partly decreed the plaintiff's suit and appellate
Court vide judgment dated 08.09.2017 passed in RCA No.41A/2016
dismissed the appeal filed by the defendants and affirmed the findings
of the 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. 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. As per plaint averments, plaintiff purchased suit property from
defendant no.1, after defendant no. 1 received the suit property in
partition dated 23.11.2005. Perusal of sale deed Ex.P/1 reveals that
plaintiff has purchased the disputed suit property from defendant No.1
vide sale deed dated 16.2.2006 (Ex.P/1). Further, perusal of Ex.P/2
reveals that vide above partition order, suit property along with other
survey numbers came to the share of Ramesh, Santosh son of Angad
and Indrawati widow of Angad and other survey numbers fall into the
share of defendants Ramoti, Biharilal, Ganesh and Jagdish etc. Ex.P/2's
order has been passed on 23.11.2005. Ex.P/1's sale deed has been
executed on 16.02.2006. It is also evident from record of the case that it
is not the case of Santosh, that suit property sold by Ramesh vide sale
deed Ex.P/1 was not received by Ramesh in partition. Further, Ex.P/3's,
partition order has been passed on 15.4.2008. Therefore, in view of
above, sale deed Ex.P/1 cannot be declared null and void on the basis of
partition order dated 15.4.2008 (Ex.P/3).
11. Learned trial Court has discussed above fact in detail, especially
from paras 18, 19 and from 25 to 30. In the instant case, in view of
order Ex.P/2, it cannot be said that on the date of execution of sale deed,
defendant no.1 was not entitled to execute sale deed with respect to
disputed property. In the instant case, suit property is not proved to be
coparcenary property. Thus, on the date of execution of sale deed
Ex.P/1, disputed property was neither Joint Hindu Family Property nor
coparcenary property. Hence, principle of law laid in the case of
Bhagwandas (supra) does not help appellants in any way.
12. Thus, subsequent, cancellation of partition order Ex.P/2 dated
23.11.2005 by order dated 15.4.2008 (Ex.P/3) would not
invalidate/render Ex.P/1's sale deed null and void. Therefore, there is no
illegality or perversity in the findings recorded by the Courts below.
Further, it is also evident that Courts below have not granted any relief
with respect to Ex.P/3's order to the plaintiff. 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 are
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 are1 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
Hashmi
