Madhya Pradesh High Court
Samsuddin & Ors vs The State Of M.P.Th.Coll.Katni 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. 1191 of 2004
BETWEEN:-
1.SAMSUDDIN SON OF LATE
MOHAMMAD HUSSAIN, AGED ABOUT 48
YEARS
2. ABDUL SATTAR, SON OF LATE
MOHMAMMAD HUSSAIN AGED 46
YEARS
3. BARDUDDIN SON OF LATE SHRI
MOHD. HUSSAIN, AGED 45 YEARS
ALL ARE RESIDNET OF SUBHAS WARD,
KATNI, TAHSIL AND DISTRICT KATNI
(MADHYA PRADESH)
.....APPELLANTS
(BY MISS SHRISTI KASHYAP- ADVOCATE )
AND
1 MOHD. HABIB, @ RUSTAM, SON DADU
BHAI, AGED 35 YEARS, R.O. SUBHASH,
WARD, MISSION CHOWK, KATNI,
TAHSIL AND DISTRICT KATNI
2.THE STATE OF M.P.TH.COLLECTOR
KATNI (MADHYA PRADESH)
.....RESPONDENTS
(BY MISS EKTA GUPTA- PANEL LAWYER )
This appeal coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
2
ORDER
This appeal has been filed by appellants under Section 100 of CPC
against the judgment and decree dated 19.7.2004 passed IIIrd Additional
District Judge, Katni (Fast Track Court) in Civil Appeal No.24-A/2003
arising out of judgment and decree dated 15.10.1999 passed in Civil
Suit No.312-A/1991.
2. Brief facts of the case are that plaintiff filed a suit for permanent
injunction on the ground that disputed land was allotted to the plaintiff
under section 239 of Madhya Pradesh Land Revenue Code, 1959 by
Tahsildar, Jabalpur for planting fruit trees. Plaintiff is in possession of
the suit property since last 13 years. Later on, case for eviction was
registered before Tahsildar. Under the rules framed by M.P.
Government., plaintiff is entitled to receive the suit property and no
other persons can be allotted the same because plaintiff is landless
person. Defendants are not entitled to dispossesses or interfere in the
peaceful possession of the plaintiff over the suit property. Tahsildar has
passed eviction order under Section 248 of MPLRC for evicting the
plaintiff on 18.8.1991. Plaintiff has sought relief of injunction as well as
mandatory injunction to the effect that M.P. Government be directed to
allot the land to plaintiff as per rules.
3. Learned counsel for the appellants submits that plaintiff was granted
lease vide order dated 27.9.1980 and since then, plaintiff is in
possession of the suit property. Hut has been constructed on the land
and plaintiff has also planted some fruit trees and plaintiff is in
possession of the suit property and he has not been dispossessed till
today. On above grounds, it is urged that substantial questions of law as
mentioned in the appeal memo arises for determination & it be admitted
for final hearing.
4. Learned trial Court vide judgment dated 15.10.1999 passed in Civil
Suit No.312-A/1991 decreed the plaintiff suit and appellate court vide
judgment dated 19.7.2004 allowed the state appeal and set aside the
judgment and decree passed by trial Court and dismissed the plaintiff
suit.
5. I have heard and perused the record of the case.
6. 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".
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 record of the case reveals that plaintiff has filed Ex.P/1
and Ex.P/1 reveals that it is not a lease deed vide Ex.P/1, plaintiff was
allotted land for plantation of fruit trees mentioned in Ex.P/1 and no
right, title or interest was given to plaintiff over the land on which the
plaintiff was permitted to plant fruit trees. Except Ex.P/1, no other
documents have been filed by plaintiff. Plaintiff has also not filed
certified copy of the order passed by Tahsildar as mentioned in para 5 of
the plaint. Further, no documents have been filed by plaintiff so as to
show that plaintiff has ever filed any application for grant of
lease/allotment of suit property. Further, this Court cannot direct State
Government to allot land to plaintiff/ grant lease of the same. As per
plaint averments itself, plaintiff is in possession of the suit property
since last thirteen years and suit property belong to the State
Government, therefore, it cannot be said that plaintiff has perfected title
over the suit property by way of adverse possession. Hence, in view of
above findings recorded by the Appellate Court cannot be said to be
perverse or against law or against evidence on record.
11. If pleadings and evidence adduced by the parties and the
impugned judgment passed by the first appellate 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 are not liable to
be interfered with in the instant case and it cannot be said that first
appellate court has ignored any material evidence or has acted on no
evidence or first appellate 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 are based on
inadmissible evidence.
12. A perusal of the impugned judgment and decree passed by the
first appellate 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 are illegal,
perverse and based on no evidence etc. The learned first appellate
court has legally and rightly dealt with the issues involved in the matter
and has recorded correct findings of fact.
13. For the reasons aforesaid, I find no merit in the instant second
appeal. Findings recorded by the first appellate court are fully justified
by the evidence on record. Findings recorded by the first appellate
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.
14. A copy of this order along with record be sent back to the first
appellate court for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
