Madhya Pradesh High Court
Hazari Lal vs Charki Bai on 20 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
S.A.No.1009/2016
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. 1009 of 2016
BETWEEN:-
HAZARI LAL S/O BHAGWANDEEN GUPTA, AGED
ABOUT 72 YEARS, GRAM RAMPUR THANA
AMLAI TEH- BUDHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SOMESH SHUKLA-ADVOCATE)
AND
1. CHARKI BAI D/O DAULAL GUPTA GRAM
RAMPUR THANA AMLAI TEH- BUDHAR
(MADHYA PRADESH) (DEAD)
2. RAMSWARUP S/O RAMJIYAWAN GUPTA
GRAM RAMPUR THANA AMLAI TEH-
BUDHAR (MADHYA PRADESH) (DEAD)
3. RAMAWATAR S/O RAMJIYAWAN GUPTA
GRAM RAMPUR THANA AMLAI TEH-
BUDHAR (MADHYA PRADESH)
4. RAMKRIPAL S/O RAMJIYAWAN GUPTA
GRAM RAMPUR THANA AMLAI TEH-
BUDHAR (MADHYA PRADESH)
5. COLLECTOR SHAHDOL SHAHDOL
(MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, the court passed
the following:
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Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
S.A.No.1009/2016
ORDER
This appeal has been filed by the appellant under section 100 of
CPC against the judgment and decree dated 10.05.2016 passed in Civil
Appeal No.16-A/2015 by first Addl. District Judge, Link Court,
Budhar Shahdol arising out of judgment and decree dated 27.02.2015
passed in Civil Suit No.60-A/2012 by Ist Civil Judge Class-II,
Shahdol.
2. Brief facts of the case are that plaintiff filed a suit for
declaration of title and for recovery of possession also and if it is
found that defendant no.1 has taken possession during pendency of the
suit on the ground that plaintiff is in possession of the same and he is
cultivating the suit property. Suit property is plaintiff's ancestral
property. Earlier suit property was recorded in the name of
Sukhwanti Wife of Chabilal, mother of plaintiff's father and after
death of Sukhwanti, plaintiff's father came into the possession of the
suit property and after death of plaintiff's father, plaintiff is in
possession of the suit property. Vide order dated 21.8.1996 passed by
Court of Tahsildar also plaintiff's possession in record over suit
property but defendant no.1 illegally got mutated suit property in her
name and now they intend to interfere in the possession of the suit
property.
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3. Learned counsel for the appellant submits that original owner
of the suit property was Sukhwanti and Sukhwanti is wife of elder
brother of plaintiff's grandfather. After death of Sukhwanti, suit
property came in the name of plaintiff's father and after death of
plaintiff's father; it came into the name of plaintiff. Later on,
defendant no.1 got mutated her name. This entry was set aside by the
order dated 21.8.1996 passed by Nayab Tahsildar (Ex.P/2) and
plaintiff's name was recorded. It is also urged that trial Court has held
that Sukhwanti was the original owner and was in possession of the
suit property and therefore, learned trial Court decided issue no.1 and
2 in favour of the plaintiff. Learned counsel for the appellant after
referring to para 18 of the Appellate Court judgment and deposition of
applicant witness Kamlesh, submits that family tree is also established
and Appellate Court has wrongly held that from evidence on record
plaintiff's possession over the suit property is not proved.
4. Further, Ex.P/2's order was passed in favour of the plaintiff;
therefore, plaintiff was not required to take any further action. It is also
urged that family tree was challenged by defendant No.1 by filing
written statement then plaintiff's witness has clarified the same and
from deposition of plaintiff witness it is clearly established that
plaintiff is legal heir of Sukhwanti. It is also urged that appellant has
filed an application under Order 41 Rule 27 of CPC before the first
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appellate Court for bringing on record documents but appellate Court
has wrongly dismissed the application. It is also urged that defendants
are illegally interfering in the peaceful possession of the suit property.
On above grounds, it is urged that substantial questions of law arise as
mentioned in appeal memo of this appeal and it be admitted for final
hearing.
4. Heard. Perused the record of the case.
5. Learned trial Court vide judgment dated 27.2.2015 passed in
Civil Suit No.60A/12 has dismissed the plaintiff's suit and appellate
Court vide judgment dated 10.05.2016 passed in RCA No.16A/2015
dismissed the appeal filed by the plaintiff and affirmed the trial
Court's findings.
6. 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
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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
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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
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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
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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 the plaint averments reveal that plaintiff has filed
the present suit on the ground that suit property is his ancestral
property and plaintiff is in possession of the suit property since the
time of his grandfather and that suit property was recorded in the name
of Sukhwanti, mother of plaintiff's father and after death of Sukwanti,
plaintiff's father came into possession of the same.
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10. Perusal of the plaint averments reveals that in plaint, family
tree/genealogy of plaintiff is not mentioned so as to connect plaintiff
with Sukhwatni and show relationship of plaintiff with Sukhwanti. As
there are no pleadings with respect to family tree/genealogy, no
amount of evidence can be looked into with respect to above.
Therefore, facts mentioned in the plaintiff's evidence does not help the
appellant in any way. It is also not mentioned in the plaint as to when
Shukwanti expired and when name of plaintiff's father was mutated.
Revenue record pertaining to mutation of plaintiff's father of suit
property has not been filed by plaintiff.
11. In Khatoni Ex.P/1 for the Samvat 1983-84 various khasras number
including disputed property are mentioned in the name of Sukwanti
wife of Chabilal. Perusal of Khasra Ex.P/3, P/4, P/5 and P/11 reveals
that various Khasra survey numbers of Sukwanti, as mentioned, in
Ex.P/1, are recorded in the name of different persons. In Ex.P/3
Raniya Bai's name and others are recorded over suit property and in
column 16, 18 and 20 of Ex.P/3 vide order passed by Nayab Tahsildar,
possession of other persons is recorded over suit property.
12. Further, plaintiff has not clarified that if Sukhwanti, mother of
plaintiff's father, was also owner of other survey numbers as
mentioned in Ex.P/1, then, who is owner and in possession /who
inherited other survey numbers as mentioned in Ex.P/1 in the name of
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Sukhwanti or whether plaintiff has inherited other survey numbers
also. If Plaintiff inherited Sukhwanti's other survey numbers then,
plaintiff should have filed relevant record but no such record has been
filed by plaintiff. In this Court's considered opinion, if above material
documents have been filed/facts were clarified/family tree was
mentioned in plaint then same would have supported and helped the
appellant in establishing/proving plaintiff's case as mentioned in the
plaint. Learned first appellate Court has not committed any illegality in
dismissing the plaintiff's application under Order 41 Rule 27 CPC.
Therefore, findings recorded by the Court below are proper and just.
13. 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
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that the findings of first appellate court/trial Court are based on
inadmissible evidence.
14. 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.
15. 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.
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16. 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
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