Madhya Pradesh High Court
Arabu@Arab Khan vs Smt. Nooran 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 20th OF MAY, 2024
SECOND APPEAL No. 849 of 2021
BETWEEN:-
ARABU@ARAB KHAN S/O HANIM KHAN, AGED
ABOUT 35 YEARS, R/O AGRA MOHALLA PANNA
TEHSIL AND DISTT. (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAJMANI SINGROUL ADVOCATE)
AND
1. SMT. NOORAN W/O SHRI CHAINU
MUSALMAN, AGED ABOUT 55 YEARS, R/O
AGRA MOHALLA, PANNA TEH, AND DISTT.
PANNA M.P (MADHYA PRADESH)
2. THE STATE OF M.P. THROUGH
COLLECTOR DISTT. PANNA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI S. MISHRA PANEL LAWYER )
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 26.3.2021 passed in
Regular Civil Appeal No.24/2015 and 43/2018 by District Judge,
Panna arising out of judgment and decree dated 25.3.2015 passed in
Civil Suit No.20A/2014 by Civil Judge Class-II, Panna.
2. Brief facts of the case are that plaintiff filed a suit for
declaration of title and possession, if during pendency of suit,
defendant no.1 takes over the possession of the suit property, then, for
delivery of possession on the ground that original owner of the suit
property was Lalla Bai, mother of plaintiff. Lalla Bai has six daughters
and in the year 1990, Lallla Bai partitioned the property amongst her
daughters and in above partition, survey no.669 area 0.045 hectares
came into the share of Lalla Bai. After six months of marriage,
plaintiff started living with her mother. Plaintiff constructed kachcha
house, consisting of two rooms, on disputed property and she is living
therein and is also in possession of the suit property. Plaintiff's mother
executed Will in favour of plaintiff on 06.01.1993 with respect to the
suit property.
3. Learned counsel for the appellant submits that first appellate
Court has wrongly granted injunction in favour of the plaintiff whereas
in Ex.D/13 and D/14 defendants name were recorded as owner and
they are in possession of the suit property. Hence, in view of Ex.D/13
and D/14, it cannot be held that plaintiff is in possession of the suit
property just on the basis of oral deposition of defendant witness no.3.
On above grounds, it is urged that substantial questions of law arise as
mentioned in the appeal memo in this appeal and it be admitted for
final hearing.
4. Heard. Perused the record of the case.
5. Learned trial Court vide judgment dated 25.3.2015 passed in
Civil Suit No.20A/2014 has dismissed the plaintiff's suit but Appellate
Court vide judgment dated 26.3.2021 passed in RCA No.24/15, filed
by defendant No.1 and RCA No.43/18 filed by plaintiff dismissed the
defendant no.1's appeal completely but partly allowed the plaintiff's
appeal with respect to declaration of possession and permanent
injunction but dismissed the plaintiff suit with respect to title over the
suit property.
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. Sole issue involved in the case is that whether plaintiff is in
possession of the suit property. It is correct that in Ex.D/13 and D/14,
defendant no.1's name is mentioned as owner and in possession of the
suit property but above entry has been made in the year 2010 -2011.
So far as other evidence with respect to possession over the suit
property is concerned, I have gone through the evidence adduced by
the parties and also deposition of PW-1 and PW-2. Para 12 and 18 of
DW-1 and para 3 of DW 3 clearly established that plaintiff is in
possession of the suit property. Perusal of para 12 of the appellant
Arab Khan reveals that therein defendant has admitted that he is
posted in Chatarpur since 1993 and he is residing in Chattarpur and his
wife and children used to live in Panna. He is currently residing at
Agra Mohalla, which is situated at a distance of ½ km from disputed
property. It is correct that Kachcha house consisting two rooms is
situated on the disputed property. Defendant No.1 has not specially
mentioned in his deposition that his family or anyone on behalf of
defendant, resides in the above houses situated in the disputed
property. Further, defendant witness No.3 has admitted in his cross
examination that in Kachcha house situated in the disputed land, at
present, plaintiff Nooren resides. He has also admitted that till death of
Lalla Bai, plaintiff continued to reside with Lalla Bai and plaintiff
Nooren used to reside with Lalla Bai.
10. In view of above evidence on record, in this Court's opinion
learned first appellate Court has not erred in granting relief with
respect to declaration of possession and permanent injunction in
favour of the plaintiff. Hence, no interference in required in the
findings recorded by the first appellate Court.
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
Hashmi
