Madhya Pradesh High Court

Jhanak Bai vs Daulati on 20 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 20 th OF MAY, 2024
SECOND APPEAL No. 769 of 2012

BETWEEN:-
1. JHANAK BAI W/O LATE SHRI BUDDI, AGED
ABOUT 40 YEARS, BERSIYA, TEHSIL BERSIYA,
BHOPAL (MADHYA PRADESH)

2. KALU RAM S/O LATE SHRI BUDDI, AGED ABOUT
19 YEARS, BERSIYA, TEHSIL BERSIYA (MADHYA
PRADESH)

3. JAGDEES S/O LATE SHRI BUDDI, AGED ABOUT 18
YEAR S , BERSIYA, TEHSIL BERSIYA (MADHYA
PRADESH)

4. BHURIYA BAI D/O LATE SHRI BUDDI, AGED
ABOUT 15 YEARS, OCCUPATION: MINOR
CHILDREN, THROUGH GUARDIAN MOTHER SMT.
JHANAK BAI W/O LATE BUDDI BERSIYA, TEHSIL
BERSIYA (MADHYA PRADESH)

5. KHUMMO BAI D/O LATE SHRI BUDDI, AGED
ABOUT 11 YEARS, OCCUPATION: MINOR
CHILDREN, THROUGH GUARDIAN MOTHER SMT.
JHANAK BAI W/O LATE BUDDI BERSIYA, TEHSIL
BERSIYA (MADHYA PRADESH)

6. GOLU S/O LATE SHRI BUDDI, AGED ABOUT 8
Y E A R S , OCCUPATION: MINOR CHILDREN,
THROUGH GUARDIAN MOTHER SMT. JHANAK
BAI W/O LATE BUDDI BERSIYA, TEHSIL BERSIYA
(MADHYA PRADESH)

7. VINIYA BAI D/O LATE SHRI BUDDI, AGED ABOUT
6 YEARS, OCCUPATION: MINOR CHILDREN,
THROUGH GUARDIAN MOTHER SMT. JHANAK
BAI W/O LATE BUDDI BERSIYA, TEHSIL BERSIYA
(MADHYA PRADESH)

8. ASHOK S/O LATE SHRI BUDDI, AGED ABOUT 3
Y E A R S , OCCUPATION: MINOR CHILDREN,
THROUGH GUARDIAN MOTHER SMT. JHANAK
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/24/2024
10:09:32 AM
2
BAI W/O LATE BUDDI BERSIYA, TEHSIL BERSIYA
(MADHYA PRADESH)

.....APPELLANTS
(BY SHRI ASHOK CHAKRAVARTY - ADVOCATE)

AND
1. DAULATI S/O AMAN SINGH, AGED ABOUT 48
YEAR S, PATANDEO, TAHSIL RAISEN (MADHYA
PRADESH)

2. PUNIYA BAI W/O HARGOVIND, AGED ABOUT 30
YEAR S , PATANDEO, DISTT. RAISEN (MADHYA
PRADESH)

3. VIDHYA BAI W/O PAPPU, AGED ABOUT 30 YEARS,
PATANDEO, DISTT. RAISEN (MADHYA PRADESH)

4. POOJA, AGED ABOUT 10 YEARS, OCCUPATION:
MINOR CHILDREN THROUGH GUARDIAN
MOTHER VIDHYA BAI W/O PAPPU PATANDEO,
DISTT. RAISEN (MADHYA PRADESH)

5. SANDHYA, AGED ABOUT 8 YEARS, OCCUPATION:
MINOR CHILDREN THROUGH GUARDIAN
MOTHER VIDHYA BAI W/O PAPPU PATANDEO,
DISTT. RAISEN (MADHYA PRADESH)

6. KU. NISHI, AGED ABOUT 6 YEARS, OCCUPATION:
MINOR CHILDREN THROUGH GUARDIAN
MOTHER VIDHYA BAI W/O PAPPU PATANDEO,
DISTT. RAISEN (MADHYA PRADESH)

7. DEEWAN SINGH, AGED ABOUT 5 YEARS,
OCCUPATION: MINOR CHILDREN THROUGH
GUARDIAN MOTHER VIDHYA BAI W/O PAPPU
PATANDEO, DISTT. RAISEN (MADHYA PRADESH)

8. KU. ANJALI, AGED ABOUT 2 YEARS,
OCCUPATION: MINOR CHILDREN THROUGH
GUARDIAN MOTHER VIDHYA BAI W/O PAPPU
PATANDEO, DISTT. RAISEN (MADHYA PRADESH)

9. KHIMMO BAI W/O PAPPU, AGED ABOUT 30 YEARS,
PATANDEO, DISTT. RAISEN (MADHYA PRADESH)

10. COLLECTOR / DISTRICT MAGISTRATE THE
STATE OF MADHYA PRADESH RAISEN (MADHYA
PRADESH)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/24/2024
10:09:32 AM
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.....RESPONDENTS
( BY MS.PUSHPANJALI DWIVEDI - P.L. APPEARING ON BEHALF OF
ADVOCATE GENERAL)

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 16.05.2012 passed by 1st Additional District Judge, Raisen in Civil Appeal No.09A/2012, arising out of judgment and decree dated 23.02.2011 passed in civil suit No.8-A/09, by Civil Judge, Class I, Raisen.

2. Briefs facts of the case are that plaintiff filed a suit for declaration of title/partition and delivery of possession and for declaring sale deed dated 25.1.1986/18.08.1986 null and void and not bounding on plaintiff, on the ground that plaintiff's father Aman Singh had three sibling's i.e. plaintiffs Hargovind, Buddhi and Daulati. Defendant No.4 does not belong to plaintiff's family. Till 1988 plaintiff was recorded as minor in revenue record and in 1985 there was oral partition between plaintiff, his brother Hargovind and Daulati. In above partition plaintiff received 1/3rd share(3.50 acre). This property is disputed property. In the instant case, defendant No.4 got mutated above suit property fraudulently, in his name on 4.6.86. Since 25-30 years plaintiff has

never come to Raisen and he remains ill. Plaintiff did not execute any sale deed in favor of defendant No.4. Plaintiff was recorded as minor in the revenue record in 1986 and in sale deed no guardian has been appointed on behalf of plaintiff. Suit property was recorded as joint property in revenue records and no consent was taken of co-sharers of property before execution of sale deed.

There is clear cut variance in thumb impressions affixed on sale deed 25.1.86 and 18.08.86. Sale deed is not binding on plaintiff.

3. Learned counsel for the appellant submit that Hargovind, Buddhi and Daulati are son of Aman and each one of them had 1/3rd share in suit property. Sale deed Ex.P/17 and P/18 has not been executed by plaintiff. On the date of execution of sale deed, plaintiff was recorded as minor in revenue records and this entry was not got deleted before execution of sale deed Ex.P/17 and 18. Plaintiff never executed sale deed Ex.P/17 and P/18. On the date of execution of sale deed, plaintiff was minor, no gurdian was appointed before execution of above sale deeds. Courts below have not given any specific findings with respect to that on the date of execution of sale deed, plaintiff was minor.

4. After referring to Krishan Mohan Kul @ Nani Charan Kul and another Vs. Pratima Maity and Others, 2003 AIR SCW 5142 and Bansilal s/o Parmaiklal Vs. State of M.P., 2003(4) MPLJ, 169 and Section 111 of Evidence Act, it is urged that plaintiff is an illiterate person and he used to affix thumb impression, therefore, Courts below have wrongly placed burden of proof on plaintiff. From evidence on record, it is established that contents of sale deed were not read over and explained to plaintiff. Above facts are also not mentioned written statement filed by defendants and no evidence has been led on behalf of defendants with respect to above. 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.

5. Heard. Perused record of the case.

6 . Learned trial Court vide judgment dated 23.02.2011 passed in RCS No. 8A/2009 dismissed plaintiff's suit and appellate Court vide judgment dated 16.05.2012 passed in RCA No.9-A/12 dismissed defendants appeal and

affirmed trial Court 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:-

" 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."

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. In plaint age of plaintiff Buddhi is mentioned as 42 years and in examination-in-chief plaintiff Buddhi's age is mentioned 43 years. Therefore, by no stretch of imagination, plaintiff Buddhi can be said to be an old person. Plaintiff has not filed any documents, especially medical documents, to establish that he continuously remains ill or his eye sight is weak.

11. It is correct that in khasra Ex.P/9 (from 1983-84 to 87-88) plaintiff is mentioned as minor and sale deed Ex.P/17 and 18 have been executed in the year 1986, but plaintiff has not filed any documents pertaining to his age/date of birth.

12. Perusal of examination-in-chief of plaintiff Buddhi reveal that he has no where deposed in his examination-in-chief that on the date of execution of sale deed Ex.P/17 and P18, he was minor and therefore, he was not competent to execute sale deed Ex.P/17 and 18.

13. Hence, In view of above, it cannot be said that on the date of execution sale deed Ex.P/17 and P/18, plaintiff was suffering from any illness or he was old or he was minor. In para 4 of plaint as well as in para 1 of examination-in-chief of plaintiff Buddhi, it is clearly mentioned that in oral partition, he received 1/3rd(3.50 acre). Therefore, consent of co-sharer/co- holder was not required for executing sale deed. Further, in the instant sale deed Ex.P/17 and P18 have not been challenged by any co-holder/co-sharer.

14. In plaint, it is mentioned that there is variance/difference in thumb impression affixed on the sale deed. Plaintiff Buddhi has deposed in para 2 of his examination-in-chief that he never executed any registry in favour of Khimmo Bai and Khimmo Bai has affixed fake thumb impression in the name of plaintiff.

15. Perusal of record of the case reveal that plaintiff did not get examine thumb impressions affixed on sale deed Ex.P/17 and P/18 by any finger print expert to establish that thumb impressions affixed on sale deed Ex.P/17 and P/18 are not that of plaintiff. No explanation has been furnished for the same.

16. Therefore, adverse inference can be drawn against plaintiff that if he got had examined thumb impression affixed on sale deed by any finger print expert, then, report might have been against him. Further, there is on record, report of finger print expert (Ex.D/1) filed by defendant, though, concerned finger print expert was not examined to prove Ex.D/1's report. But therein, it is mentioned that thumb impression affixed on Ex.P/17 and P18 are that of plaintiff Buddhi .

17. I have also gone through the plaint averments as well as examination- in-chief of plaintiff Buddhi and therein it is mentioned that sale deed Ex.P/17 and P/18 are fake and forged but it is not mentioned as to how defendant Khimmo Bai got executed above sale deed from the plaintiff. It is neither mentioned in plaint nor in examination-in-chief of plaintiff Buddhi that defendant Khimmo Bai got executed sale deed Ex.P/17 and 18 by playing any fraud upon plaintiff/mis-representing facts or contents of documents or by exercising any undue influence etc.on plaintiff.

18. Further, perusal of record of the case also reveal that plaintiff did not

file relevant documents pertaining to mutation proceedings initiated by Khimmo

Bai on the basis of Ex.P/17 and P/18 whereby Khimmo Bai's name recorded in revenue papers so as to show as to whether plaintiff was informed/was aware of above mutation proceedings or not and whether he remained present in above mutation proceedings or not.

19. So far as burden of proof is concerned, it is well established that after both the parties have led evidence, then, question of burden of proof looses importance/is of no importance and Court has to decide the case on the basis of evidence available on record. In view of discussion in the forgoing paras, in this Court's considered opinion, defendants were not required to prove anything pertaining to execution of sale deed by plaintiff.

20. Hence, in view of discussions/facts mentioned in the preceding paras, principles of law laid down in Krishan Mohan Kul @ Nani Charan Kul(supra) and Bansilal S/o Parmaiklal (supra), does not help appellant in any way, because from evidence on record it is not established at all that plaintiff did not executed sale deed Ex.P/17 and P/18.

21. Hence, learned Courts below have not committed any error and illegality is dismissing plaintiff's suit as well as appeal.

22. 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.

23. 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.

24. 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.

25. 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 sm