Madhya Pradesh High Court
Bhagirath Chourasia vs Shankar Lal Chourasia on 15 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
SECOND APPEAL No. 902 OF 2022
BETWEEN:-
BHAGIRATH CHOURASIA S/O SHRI
SANTRAM CHOURASIA, AGED ABOUT 60
YEARS, OCCUPATION: AGRICTULTURIST
WARD NO.4 MAHARAJPUR DISTRICT
CHHATARPUR M.P. (MADHYA PRADESH)
.....APPELLANT
(BY JANAK LAL SONI - ADVOCATE )
AND
1. SHANKAR LAL CHOURASIA S/O SHRI
HALKAI CHOURASIA, AGED ABOUT
54 YEARS, WARD NO.4 MAHARAJPUR
TEHSIL MAHARAJPUR DISTRICT
CHHATARPUR M.P. (MADHYA
PRADESH)
2. CHANDRABHUSHAN CHOURASIA
S/O LATE SHRI MATADEEN
CHOURASIA, AGED ABOUT 60
YEARS, R/O WARD NO. 4
MAHARAJPUR DISTRICT
CHHATARPUR M.P. (MADHYA
PRADESH)
3. STATE OF M.P. THROUGH THE
COLLECTOR CHHATARPUR
DISTRICT CHHATARPUR M.P.
(MADHYA PRADESH)
4. VISHWANATH CHOURASIA S/O
SHANKAR LAL CHOURASIA, AGED
ABOUT 27 YEARS, R/O WARD NO. 4
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/16/2024
2:28:17 PM
2
MAHARAJPUR TEHSIL
MAHARAJPUR DISTRICT
CHHATARPUR M.P. (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SHAILENDRA MISHRA - PANEL LAWYER FOR
RESPONDENT NO.4/STATE)
_______________________________________________________________
RESERVED ON : 29/04/2024
PRONOUNCED ON : 15/05/2024
--------------------------------------------------------------------------------------------
This appeal having heard and reserved for order, coming on for
pronouncement on this day, the 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 21.02.2022 passed by
First District Judge, Chhatarpur in RCA No.20A/2021, arising out of the
judgment and decree dated 12.12.2017 passed in Civil Suit No.75-A/2017.
2. Brief facts of the case are that plaintiff filed a suit for easementary rights
and for removal of iron gate as mentioned in attached map and as shown by
ABCD in red ink and for not interfering in plaintiff's easementary rights in
anyway. Plaintiff is residing in house No.77 since 1987 and on western side of
plaintiff's house, there is 3 ½ ft. public way and public drainage and thereafter
Matadeen's house. Plaintiff has been continuously enjoying/using above
public way and drainage without any obstruction. In the instant case, above
public way and drainage situated on western side is disputed. Above public
drainage is being used by persons residing in the Mohallah and above public
way is also being used by plaintiff as well as other persons since 28/30 years.
3. Learned counsel for the appellant submit that learned Courts below have
failed to take into consideration that respondent No.3 admitted that there is
public drain and public lane at the western side of plaintiff's house and it is
also admitted by respondent No.3 that respondent No.1 has encroached upon
the said public drain and public lane illegally. Inspite of above admission,
learned courts below wrongly dismissed plaintiff's suit and held that plaintiff
failed to establish the continuous use of easementary rights last since 30
years. Plaintiff claimed decree for declaration of easementary rights against
respondent No.1, 2 and 4, who are obstructing the use and enjoy of light as
well as discharge of drainage water into the public drain which is the property
of Nagar Punchayat, Maharajpur. As respondent No.1 was found to have
encroached public drain and public lane, therefore, a decree for removale of
such encroachment ought to have been passed against him. Courts below
failed to consider that lane and drainage have been constructed by
Municipality for use & enjoy by the public at large and respondents No.1, 2
and 4 have no right to cause any obstruction in such public lane and public
drainage. With respect to above, learned counsel for the appellant has
extensively referred to plaint averments as well as evidence on record. It is
also urged that substantial questions of law Nos. 1,2 and 3 as mentioned in
appeal memo arise for determination. Hence, appeal be admitted for final
hearing.
4. Learned counsel for the respondents/defendants submitted that finding
recorded by the Courts below are proper and as per evidence. Hence, appeal
filed by the appellants be dismissed.
5. Heard. Perused record of the case.
6. Learned trial Court vide judgment dated 12.12.2017 passed in RCS
No.75-A/2017 partly decreed plaintiff's suit but dismissed plaintiff's suit with
respect to easementary right and Appellate Court vide judgment dated
21.02.2022 passed in RCA No.20A/2021 dismissed plaintiff's appeal and
affirmed trial court's findings.
7. Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the Courts below. 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. Perusal of plaint averments reveals that plaintiff has filed present suit for
easementary rights stating that on western side of plaintiff's house, there is
government public way and drainage measuring 3.5 ft. and it is being used by
plaintiff as well as other persons of the Mohalla and defendant has closed above
by fixing/constructing iron gate on 27.08.2012. It is also plaintiff's case that on
24.5.2013 Nagar Panchayat found that defendant No.1 has closed the way after
fixing/constructing iron gate.
11. Perusal of plaint averments reveals that plaintiff has not specifically
mentioned as to out of 3.5 ft' what is width of government public way and what
is width of public drainage. In Ex.P/1, it is mentioned that in between objector
and applicant's house, there is 3.5' public drainage.
12. Perusal of Ex.P/1 (page 4 and in page 5 of Ex.P/1) reveals that therein,
only it is mentioned that on 24.5.2013 local inspection was done by Sub-
engineer etc and it was found that in between objector and applicant's house
there is 3.5" ft' drainage and it has been taken possession of after fixing iron
gate. Thus, in Ex.P/1, it is no where mentioned that there is any
public/government way in between the house of plaintiff as well defendant.
Further there is a map attached with Ex.P/1 (construction permission) and
therein towards Matadeen's house, in between Bhagirath's house and
Matadeen's house 0.70 cm Kulia is mentioned and no public/government way is
mentioned therein.
13. Plaintiff Bhagirath Chourasiya has admitted in his cross examination that
it is correct that on account of gate there is no obstruction in the flow of water. It
is also correct that on account of above, neither air is being obstructed nor flow
of water is being obstructed and there is no other type of obstruction. Plaintiff
has also admitted that in plaint as well as map, there is no mention of "nali".
Witness voluntarily stated that it is mentioned as Kulia. Further, plaintiff has
stated that in para 17 of his cross examination that there is is 8 ft' wide upon
area in between plaintiff's house and defendant's house.
14. Thus, case as pleaded by plaintiff in plaint, especially with respect to
government way/width of drainage, etc, does not stand established. It is also
evident from above that plaintiff has not come before this Court with clean
hands. Further, if there is any illegal/unauthorized obstruction in drainage,
situated in between the house of plaintiff and defendant, competent
authority(Nagar Panchayat) is free to take action in accordance with law.
15. Hence, facts as discussed in preceding paras, in this Court's considered
opinion, learned Courts below have not committed any illegality in dismissing
plaintiff's suit with respect to easementary rights.
16. 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.
17. 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.
18. 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.
19. 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
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