Madhya Pradesh High Court
Chhedilal Chamar vs Chetram Chamar on 20 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 20th OF May, 2024
SECOND APPEAL No. 958 of 2019
BETWEEN:-
CHHEDILAL CHAMAR S/O SHRI CHUNVADI CHAMAR,
AGED ABOUT 45 YEARS, OCCUPATION: CULTIVATOR
VILLAGE BADHAN TOLA TEHSIL BIRSINGHPUR SATNA
(MADHYA PRADESH)
THROUGH POWER OF ATTORNEY - RAJESH KUMAR
CHAMAR S/O SHRI CHHEDILAL CHAMAR, AGED
ABOUT 34 YEARS, OCCUPATION - CULTIVATOR,
RESIDENT OF VILLAGE - BADHAN TOLA, TESHIL -
BIRSINGHPUR, DISTT. SATNA (M.P.)
.....APPELLANT/ PLAINTIFFS
(BY SHRI PRATAP NARAYAN MISHRA - ADVOCATE)
AND
1. CHETRAM CHAMAR S/O LATE SHRI CHUNVADI
CHAMAR, AGED ABOUT 58 YEARS
JAGDISH CHAMAR S/O LATE SHRI CHUNVADI
2. CHAMAR, AGED ABOUT 53 YEARS
3. GORELAL CHAMAR S/O LATE SHRI CHUNVADI
CHAMAR, AGED ABOUT 50 YEARS,
RESPONDENTS NO. 1 TO 3 ARE RESIDENTS OF
VILLAGE BADHAN TOLA TEH. BIRSINGHPUR, DISTT .
SATNA (MADHYA PRADESH)
4. SMT. KUMARIA (DEAD) THROUGH LRS.
a) SMT. MADHAV D/O LATE SHRI CHUNVADI CHAMAR,
AGED ABOUT 52 YEARS, OCCUPATION: HOUSE WIFE,
R/O CHHATRI TOLA UCHEHRA, DISTT. MADHYA
PRADESH
Signature Not Verified
Signed by: VIKRAM SINGH
Signing time: 6/3/2024
6:03:47 PM
2
b) SMT. CHUNKI D/O LATE SHRI CHUNVADI CHAMAR,
AGED ABOUT 48 YEARS, OCCUPATION: HOUSE WIFE,
BANDHAVA NAYAGAON TEH. RAGHURAJNAGAR
(MADHYA PRADESH)
5 STATE OF M.P. THROUGH COLLECTOR SATNA (MADHYA PRADESH)
.....RESPONDENTS/ DEFENDANTS
(BY SHRI PANKAJ RAJ - PANEL LAWYER FOR RESPONDENT NO.5/ STATE
NONE FOR OTHER RESPONDENTS )
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Reserved on : 21.02.2024
Pronounced on : 20 .05.2024
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This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following:
JUDGMENT
1) This second appeal by the appellants/ plaintiffs has been filed
against the judgment and decree dated 31.08.2016 in Civil Suit No.
3500053 A/2014 (Chhedilal Vs. Chetram Chamar and others) whereby the
learned Seventh Civil Judge, Class I, Satna dismissed the suit of the
plaintiff for cancellation of Will dated 20.01.2002 and mutation order
dated 13.08.2004 regarding disputed suit property bearing Khasra No.
217/02 area 15 acres situated in village Kathra and for declaring him as
one-fifth owner of the suit property.
2) It was not disputed between the parties that suit property originally
belonged to Chunvadi and he was owner and possessor.
3) On an appeal by the plaintiff, learned Fifth Additional District
Judge, Satna in Regular Civil Appeal No. 3400100/2016 vide judgment
and decree dated 14.02.2019 dismissed the appeal of the plaintiffs and
confirmed the decree of the trial Court.
4) During the course of arguments, it was submitted that the trial Court
as well as appellate Court erred in giving a finding that plaintiff is not the
son of late Chunvadi on the basis of Ex. P/3. He was born out of
relationship between Chunvadi and his widowed Bhabhi , therefore, he had
all the rights of a son. It is also submitted that Ex. D/15 Will also proves
the relationship between Chhedilal and Chunvadi. Learned counsel for the
appellant relied upon the judgment of this Court in the case of Avinash
Kumar Ray Vs. Dr. Ku. Chhaya Ray reported in 2023(1) M.P.L.J. 515
in which the Co-ordinate Bench of this Court held that the admission by a
party to a suit is the best evidence ( para 30 and 33).
5) The Learned counsel also relied upon the judgment of this Court in
the case of Dr. Rajdeep Kapoor Vs. Mohd. Sarwar Khan and others
reported in (2021) 2 M.P.L.J. 452 wherein this Court in paragraphs 9 and
17 has held that the Principle of Estopple is a Principle of Equity. One a
fact is admitted by a party before this Court then in subsequent
proceedings he cannot be allowed to deny said fact by leading evidence.
6) Having heard the arguments of learned counsel on substantial
question of law, case was reserved vide order dated 21.02.2024. After
perusal of record of both the Courts including the evidence and documents
this Court is of the considered view that in this case there are no substantial
questions of law on which this second appeal can be admitted because both
the Courts have dealt with all the facts on the basis of pleadings by both
the parties including evidence of both the parties. It is seen that on the
basis of evidence it is not proved that appellant Chhedilal was born out of
relationship between Chunvadi and widowed mother of Chhedilal
Paraniya. It is also not proved that when Chhedilal was born Paraniya was
living as a wife with Chunvadi.
7) Regarding Will plantiff tried to prove by evidence that Chunvadi
was examined on 3.5.2013 by a psycholgist who held that his IQ was less
than 40 but in crosss-examination the doctor admitted that he had given
opinion on the basis of medical papers and saw him for the first time. The
disputed Will is dated 20.1.2002, therefore, no benefit can be given to the
appellant on the basis of statement of this doctor. In fact Chhedilal never
entered the witness box and his son Rajesh came but it has been correctly
mentioned in the judgment by the trial Court on the basis of evidence of
Rajesh S/o Chhedilal that he did not give answers to many questions asked
during cross-examination, therefore, no reliance can be placed on the
statement of Rajesh regarding proof that Chhedilal was son of Chunvadi.
In that context education certificates were filed but he did not examine the
concerned person from school. Similarly also Court has correctly observed
that certain documents like ration card , voter list etc are made on the basis
of affidavit and application by the party. In fact, plaintiff witness No.2
Shyamlal in cross-examination admitted that he has not filed affidavit to
the fact that Chhedilal was son of Chunvadi, therefore, this witness has
turned hostile. The Court has also correctly observed that it is not proved
that in the community of both the parties there was any tradition by which
during the lifetime of first wife they could keep second wife. In fact in ex.
P/7 and Ex. D/17 it is mentioned that Chunvadi had kept the wife of his
deceased brother , who came along with her son Chhedilal meaning
thereby when Paraniya started living with Chunvadi she already had a son
Chhedilal.
8) The jurisdiction of this Court to interfere with the findings of fact is
well defined by catena of decisions of Supreme Court. This Court in
exercise of powers under Section 100 of the Code of Civil Procedure can
interfere with the finding of fact only if the same is shown to be perverse
or based on no evidence. See. Narayanan Rajendran and another Vs.
Lekshmy Sarojni and others (2009) 5 SCC 264, Hafazat Hussain Vs.
Abdul Majeed and others (2011) 7 SCC 189, Union of India Vs. Ibrahim
Uddin and another, (2012) 8 SCC 148, D.R. Rathna Murthy Vs.
Ramappa (2011) 1 SCC 158, Vishwanath Agrawal Vs. Sarla Vishnath
Agrawal, (2012) 7 SCC 288 and Vanchala Bai Raghunath Ithape (dead)
by LR Vs. Shankar Rao Babu Rao Bhilare (dead) by LRs. and Others,
(2013) 7 SCC 173.
9) For the aforementioned reasons, no substantial question of law arises
for consideration in this appeal. The appeal fails and is hereby dismissed.
Let copy of this order along with the record be sent back to the
concerned Court.
(AVANINDRA KUMAR SINGH)
JUDGE
VSG
