Madhya Pradesh High Court
Surendra Kumar S/O Chhikaudilal Gupta ... vs Jiya Khan 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
ON THE 15th OF MAY, 2024
SECOND APPEAL No. 119 of 2022
BETWEEN:-
SURENDRA KUMAR S/O CHHIKAUDILAL GUPTA
THR. POWER OF ATTORNEY CUM FATHER
CHIIKAUDIALAL S/O SHRI DEENDAYAL GUPTA,
AGED ABOUT 64 YEARS, PURANI BASTI
KHAJURAHO TAH RAJNAGAR DISTT.
CHHATARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI J.L SONI, ADVOCATE )
AND
1. JIYA KHAN S/O SHRI RAJJAB KHAN, AGED
ABOUT 48 YEARS, MANJURNAGAR TAH.
RAJNAGAR DISTT. CHHATRPUR (MADHYA
PRADESH)
2. KALLOO S/O SHRI SARMANA CHMAMAR,
AGED ABOUT 45 YEARS, OCCUPATION: NIL
VILLAGE LALGAWAN TEHSIL RAJNAGAR
(MADHYA PRADESH)
3. KALICHARAN S/O SHRI SARMANA
CHMAMAR, AGED ABOUT 34 YEARS,
OCCUPATION: NIL VILLAGE LALGAWAN
TEHSIL RAJNAGAR (MADHYA PRADESH)
4. SMT. KANI W/O SHRI SARMANA
CHMAMAR, AGED ABOUT 67 YEARS,
OCCUPATION: NIL VILLAGE LALGAWAN
TEHSIL RAJNAGAR (MADHYA PRADESH)
5. STATE OF M.P. THROUGH COLLECTOR
DISTRICT CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY MISS EKTA GUPTA PANEL LAWYER` )
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
2
This appeal coming on for admission this day, the court passed
the following:
ORDER
This appeal has been filed by the appellant under Section 100 of
CPC against the judgment and decree dated 29.11.2021 passed by IIIrd
District Judge, Chhatarpur in Regular Civil Appeal No.1600124/2016
arising out of judgment and decree dated 31.3.2016 passed by IInd
Civil Judge, Class-II, Chhatarpur in Civil Suit No.12A/2015.
2. Brief facts of the case are that plaintiff filed a suit for
declaration of easementary rights as well as injunction and for
declaring Tahsildar order dated 30.06.2012 null and void on the
ground that original owner of survey no.66/3 area 0.506 hectare was
defendants 2 to 4 and from them, plaintiff purchased property in
December, 2012 and since then, plaintiff is in possession of the suit
property. This property was purchased by plaintiff measuring 60 X 50
total areas 3000 sq.ft. and on eastern side of this property, there was
proposed 15 feet wide passage, on western side seller land and on
northern side Khajuraho Gaura Road and on southern side seller's
land. Later on, defendant no.1 also purchased part of land comprising
survey no.66/3 from defendants 2 to 4 and in this sale deed, no
boundaries are mentioned and defendant no.1 is threatening to close
the door of plaintiff's house and is trying to take possession of 15 feet
wide passage situated on eastern side of plaintiff's house. Plaintiff is
using above passage since last 12 years.
3. Learned counsel for the appellant submits that trial Court has
partly decreed plaintiff's suit. Further, order passed by Tahsildar has
been set aside by SDO vide order dated 9.12.2014. As plaintiff is not
owner of the suit property, therefore, he has no right with respect to
disputed property and Court below have erred in granting injunction in
favour of the plaintiff. On above grounds, it is urged that substantial
questions of law as mentioned in appeal memo arises in this appeal
and it be admitted for final hearing.
4. Learned counsel for the respondents has supported the
findings recorded by the Courts below.
5. I have heard learned counsel for the parties and perused the
record of the case.
6. Learned trial Court vide judgment dated 31.3.2016 passed in
Civil Suit No.12A/2015 partly decreed the plaintiff suit and issued
injunction in favour of the plaintiff and against the defendant no.1 and
appellate Court vide judgment dated 29.11.2021 passed in RCA
No.1600124/2016 dismissed the defendants appeal and affirmed the
trial Court's findings.
7. 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:-
"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. Sole issue involved in the case is whether there is passage on
eastern side of plaintiff house measuring 15 X 50 ft. With respect to
issue involved in the case, sale deed Ex.P/1, Ex.P/7 and D/12 are
important and plaintiff has purchased property vide sale deed Ex.P/1
dated 9.12.2002 and therein boundaries are mentioned and on western
side as well as on southern side, land of seller is shown and on
northern side Khajuraho Gaura Road and on eastern side proposed 15
ft. wide passage has been shown. Sale deed Ex.D/2 is dated 13.3.2006
and it has been executed in favour of defendant no.1 and in above sale
deed as well as map attached thereto on east, west and south, seller's
land is shown and in northern side Khajuraho Gaura Road has been
shown and in Ex.D/12, property purchased by plaintiff has not been
shown on either side of the property purchased by defendant no.1 vide
sale deed Ex.D/12.
11. Similarly, sale deed Ex.P/7 is dated 20.12.2004 and it has
been executed in favour of defendant no.1. In Ex.P/7, only it is
mentioned that land sold is adjacent to Khajuraho Gaura Road and no
boundaries of the sold property are mentioned therein. In view of date
of above sale deeds as well as boundaries mentioned therein, in this
Court's opinion, it cannot be said that no injunction can be issued in
favour of the plaintiffs despite, dismissal of the suit with respect to
declaratory relief. Hence, in this Court's opinion, learned Courts
below have not committed any illegality or perversity in dismissing
the plaintiff suit.
12. 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 are based on inadmissible evidence.
13. 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.
14. 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.
15. 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
